United States District Court, N.D. Illinois, Eastern Division
J.B., a minor, A.B., a minor, and EDWIN BUSH, in his individual capacity as father and next friend for J.B. and A.B., Plaintiffs,
TIFFANY WOODWARD, Illinois Department of Children and Family Services, et al., Defendants.
MEMORANDUM ORDER AND OPINION
JOHNSON COLEMAN, UNITED STATES DISTRICT COURT JUDGE
plaintiff Edwin Bush, on behalf of himself and his minor
children, filed a three-count complaint seeking injunctive,
declaratory, and compensatory relief against certain
employees of the Illinois Department of Children and Family
Services (“DCFS”). In his complaint, Bush alleges
that defendants violated plaintiffs' procedural and
substantive due process rights in the context of his divorce
and custody proceedings in state court. Bush also challenges
the constitutionality of Illinois' Marriage and
Dissolution Act, specifically, 750 ILCS 607.6(d). Before the
Court is defendants' motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For
the reasons discussed below, the Court grants defendants'
Rule 12(b)(1) motion. Civil case terminated.
and his wife Erika Bush have a pending petition for
dissolution of marriage and custody proceedings in the
Circuit Court of Cook County, Illinois, Domestic Relations
Division. In this context, Bush alleges that DCFS provided
false and prejudicial statements to the trial court
concerning his alleged abuse of his son, which resulted in
the trial judge directing Bush and his son to attend a
counseling session in December 2018. Bush alleges that during
this counseling session, his son rebutted the false
statements made by DCFS, which established that the
investigation into his alleged misconduct was unfounded.
12(b)(1) motion to dismiss challenges federal jurisdiction,
and the party invoking jurisdiction bears the burden of
establishing the elements necessary for subject matter
jurisdiction, including Article III standing. Collier v.
SP Plus Corp., 889 F.3d 894, 896 (7th Cir. 2018). When
evaluating a facial challenge to subject matter jurisdiction
under Rule 12(b)(1), the Court accepts all well-pleaded
factual allegations as true and construes all reasonable
inferences in the plaintiff's favor. Lardas v.
Grcic, 847 F.3d 561, 565 (7th Cir. 2017). Although
courts normally review pro se filings liberally, when a pro
se litigant is a license attorney, like Edwin Bush, they
“are not entitled to the flexible treatment granted
other pro se litigants.” Cole v. Commissioner of
Internal Revenue, 637 F.3d 767, 773 (7th Cir. 2011).
Challenge to Illinois' Marriage and Dissolution Act
Count I of the complaint, Bush brings a constitutional
challenge to 750 ILCS 5/607.6(d) against Marc D. Smith, the
acting director of DCFS, in his official capacity, seeking
declaratory and injunctive relief. Bush argues that the
statute, which concerns counseling in the context of the
allocation of parental responsibilities, violates the First
Amendment because it bars all communications made in
counseling from being used “in any manner in litigation
or relied upon by any expert appointed by the court or
retained by any party.” 750 ILCS § 5/607.6(d). He
further asserts that he has suffered an injury as a result of
this unconstitutional statute because he cannot introduce his
son's statement to rebut DCFS's false statements that
he abused his son in the pending custody and divorce dispute.
plaintiff sues a state official to enjoin the enforcement of
a state statute, questions of standing and Eleventh Amendment
immunity arise. Doe v. Holcomb, 883 F.3d 971, 975
(7th Cir. 2018). To establish Article III standing, Bush must
show that he suffered a concrete and particularized
injury-in-fact that is fairly traceable to defendant's
conduct and redressable by a favorable decision. Lavallee
v. Med-1 Solutions, LLC, 932 F.3d 1049, 1052 (7th Cir.
2019). Because Bush is bringing his claim against a state
official in his official capacity, the Eleventh Amendment
would normally bar his lawsuit. de Lima Silva v.
Department of Corr., 917 F.3d 546, 565 (7th Cir. 2019).
“A plaintiff can avoid this bar, however, by naming a
state official who has ‘some connection with the
enforcement' of an allegedly unconstitutional state
statute for the purpose of enjoining that enforcement.”
Doe v. Holcomb, 883 F.3d 971, 975 (7th Cir. 2018)
(quoting Ex parte Young, 209 U.S. 123, 157, 28 S.Ct.
441, 52 L.Ed. 714 (1908)). The Seventh Circuit explains how
standing and Ex parte Young interface under
[W]here a plaintiff sues a state official to enjoin the
enforcement of a state statute, the requirements of Ex
parte Young overlap significantly with the last two
standing requirements-causation and redressability. That is,
a plaintiff must show that the named state official plays
some role in enforcing the statute in order to avoid the
Eleventh Amendment. But, in order to satisfy the requirements
of causation and redressability, he must also establish that
his injury is causally connected to that enforcement and that
enjoining the enforcement is likely to redress his injury.
Holcomb, 883 F.3d at 975-76.
Bush has not established that his injury-in-fact is traceable
to DCFS's acting director's conduct. In particular,
Bush fails to address whether defendant Smith played some
role in enforcing § 5/607.6(d). Instead, he asserts that
all of the defendants, as agents of DCFS, caused false
statements to be presented to the judge in his pending
divorce and custody proceedings. These allegations fail to
sufficiently allege standing because they do not satisfy the
requirement that Smith played some role in enforcing or
implementing the statute. Because Bush has failed in his
burden of establishing standing, the Court grants
defendants' motion to dismiss Count I.
even if Bush could establish Article III standing to
challenge the constitutionality of § 5/607.6(d), the
Court declines to exercise jurisdiction over Bush's
constitutional challenge under the Younger
abstention doctrine. See Tobey v. Chibucos, 890 F.3d
634, 651 (7th Cir. 2018) (“federal courts are required
by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971), to abstain from taking jurisdiction over
federal constitutional claims that involve or call into
question ongoing state proceedings.”). Although
“Younger concerned a criminal defendant's
attempt to obtain federal intervention in a pending
prosecution, ” it “has since been extended to
civil litigation brought by the state to vindicate its
policies” which is “an apt description of
child-welfare and child-custody proceedings.”
Milchtein v. Chisholm, 880 F.3d 895, 898 (7th Cir.
2018); see also Moore v. Sims, 442 U.S. 415, 435, 99
S.Ct. 2371, 60 L.Ed.2d 994 (1979) (“Family relations