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Hicks v. Clark

United States District Court, N.D. Illinois, Eastern Division

January 4, 2017

BARRY CLARK, et al, Defendants.


          Milton I. Shadur Senior United States District Judge.

         Many years after suffering the child abuse that forms the gravamen of his claims, Christopher Hicks ("Hicks") filed a 42 U.S.C. §1983 ("Section 1983") action charging violations of due process, failure to intervene and supervisory liability, as well as several related state law tort claims, against a number of defendants, including Elmira Wright ("Wright"), Brodie Westbrooks and UCAN (formerly known as Child and Family Services).[1] Those claims stem from injuries that Hicks sustained while he was in the foster care system in the home of Gloria Jemison ("Jemison") between February 1974 and April 1981, when Hicks was permanently removed from the home at the age of eight. Although various other motions by both sides to the litigation are pending, this memorandum opinion and order deals with Movants' motion (Dkt. No. 264) for summary judgment under Fed.R.Civ.P. ("Rule") 56 on statute of limitations grounds.


         Both sides agree on several facts. Hicks was placed in the care of the Department of Children and Family Services ("DCFS") upon his birth in 1973 (M. St. ¶¶ 6-8). Soon after that he was placed with Jemison (id. ¶¶ 9). After several reports of really serious abuse by Jemison, DCFS assigned FamilyCare of Illinois ("FCI") and Wright to provide counseling to ensure Hicks' well-being (id. ¶¶ 12-13).[3] Despite that assignment, in September 1977 Hicks ended up in the hospital as a result of further severe abuse, and he was then removed from the Jemison home (id. ¶¶ 14-16). In July 1978 Hicks (then age 4) was returned to the Jemison home pursuant to a Juvenile Court judge's order, again under the court-ordered supervision of FCI and Wright (id. ¶ 17).

         In other filings, primarily in their dispute (Dkt. Nos. 253-255, 261) over whether or not Dr. Ronald Davidson should be excluded, the two sides disagree on what transpired in connection with the entry of the court order to return Hicks to the Jemison home. For their part Movants assert that Wright strongly opposed returning Hicks in light of the possibility of future abuse. Hicks counters with a citation to Jemison's deposition to the contrary, as well as to the specific words "by agreement" in the court order to argue that there was no resistance from Wright. In a summary judgment motion such as this one, this Court reads all evidentiary- supported disputed facts in a light most favorable to nonmovant Hicks. Here there is clearly enough evidence to call for the acceptance of Hicks' version as true for the purposes of this opinion.

         Hicks alleges, and Movants have proffered no evidence to the contrary, that abuse continued when Hicks was returned to the home--and Movants make no claim of their noncompliance with their statutory (and court-ordered) responsibility to monitor Hicks' treatment there. Yet despite the deplorable history of continuing abuse by Jemison, Wright makes no claim of doing anything to prevent DCFS from closing the file in August 1979 (id. ¶ 20, TAC ¶¶ 45-46). That severe abuse continued after DCFS closed the file until Hicks was once again (and finally) removed from the Jemison home more than 1-1/2 years later--in April 1981--after spending weeks in the hospital (M. St. ¶ 21, TAC ¶¶ 47-59).

         In May 2012 Hicks secured his DCFS records that detailed his time in the Jemison home (M. St. ¶ 25). According to Hicks that came about because of recent therapy sessions during which suppressed memories of the abuse had resurfaced while he was dealing with a struggling marriage (TAC ¶¶ 62-63). Hicks alleges that he felt a need to search for his biological parents, and in doing so he received DCFS records that contained instances of terrible abuse and neglect that horrified him (id. ¶¶ 63-64). Importantly, he then discovered for the first time that the DCFS and its people had full knowledge of the abuse yet allowed his return to the "care" (an ironic euphemism) of Jemison. Although Hicks had some memories of the abuse itself before he found the file, he never remembered that he had been taken out of and later returned to the home, and there is no evidence that he had any knowledge of how much Movants knew about the abuse yet violated their statutory duties so as to foster[4] Hicks' renewed victimization at Jemison's hands.

         Legal Standards

         Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seak Co., 282 F.3d 467, 471 (7thCir. 2002)). Courts "may not make credibility determinations, weigh the evidence, or decide which inferences to drawn from the facts" in resolving motions for summary judgment (Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts demonstrating that there is a genuine issue for trial (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         Movants' Limitations Contentions

         Movants present a consistent (though misguided) argument in their attempted--but unsuccessful--support of the claimed need to grant summary judgment in their favor on the statute of limitations defense. There is no dispute as to how long the statute of limitations is for this type of case (two years)--instead the crux of the matter comes down to when that two year clock began to tick. As Movants would have it, the time began to run for Hicks when he reached 18 years of age.

         To that end Movants cite several cases stating that the limitations period starts to run when a plaintiff has discovered both the injuries and the cause of those injuries. They also point to evidence to suggest that Hicks knew of both his injuries and as to Jemison being the direct cause of his injuries by the time he turned 18, well over two years before he brought this case. That evidence includes his knowledge of defendant Wright's existence and of DCFS's presence when he was a child, as well as statements regarding memories of his abuse, dating back more than two years before he filed this action. Movants reject the ideas that Hicks can legally bring suit within the statute of limitations under a theory of delayed knowledge of their inaction or of the extent of his injuries or under a general equitable tolling doctrine.

         But all of those arguments miss the mark entirely, because they fail to focus on the time that Hicks acquired the knowledge that is critical to the claim that he advances here. For even if this Court were to take all of the facts advanced by Movants as true, Hicks' present claims would still be timely.

         In identifying when the statute of limitations begins to run, a key distinction must be made between a victim's knowledge that an injury has been wrongfully caused and the victim's first learning that the targeted defendants caused the injury sued upon in a sense expressly made actionable under Section 1983. For that purpose it is vital to note that Section 1983 itself imposes liability on any person who under color of law either "subjects, or ...

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