Vаshir J. XIONG, Lia Y. Xiong, and R. Thor, a minor by his next friends, Plaintiffs-Appellants, v. Michael WAGNER, Dutch Leydel, Marie Froh, and Daniel Chiapetta, Defendants-Appellees.
No. 12-1737.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 12, 2012. Decided Oct. 19, 2012.
700 F.3d 282
Timothy A. Bascom (argued), Attorney, Bascom, Budish & Ceman, Wauwatosa, WI, for Defendants-Appellees.
Before FLAUM, WOOD, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge.
Racine County Human Services Department caseworker Michael Wagner removed Thor, a 12-year-old child, from his parents’ home and placed him into protective custody. Thor suffers from cerebral palsy, global developmental delay, and is confined to a wheelchair. Wagner commenced an investigation after receiving a referral from personnel at Thor‘s middle
I. Background
Thor is a wheelchair-bound 12-year-old afflicted with cerebral palsy and global developmental delay. He has a limited capacity for speech and maintains a cognitive level of approximately a second or third grader. Thor, his mother, and stepfather are all of Hmong ancestry. Upon observing abnormal bruising on Thor‘s arm and upper leg, Thor‘s school contacted Racine County Human Services Department (“RCHSD“) through a physical abuse referral. Defendant Wagner, an RCHSD investigative caseworker, commenced an investigation in response to the referral on March 24, 2009. When asked by school employees, Thor replied that he did not know how he received the bruises on certain occasions, whereas on other occasions he indicated that his mother and stepfather had caused the bruising.
Wagner interviewed Thor‘s 8-year-old brother, P.Y., at school, who stated that Thor‘s parents had hit Thor as punishment, describing an occasion when Vashir Xiong (“Vashir“) allegedly threw him onto the floor. P.Y. also stаted that his parents had left Thor home alone at least on the
Wagner also interviewed Thor at his school. Through interpretation, Thor said that he had been left alone on his mother‘s birthday and on other occasions. He also stated that his stepfather had caused the bruising on his arm and that as punishment on one occasion his stepfather had picked him up and thrown him. Wagner also examined Thor, including his naked pubic area and took pictures of Thor while undressed. He turned the camera over to school personnel.
On the afternoon of March 24, 2009, Wagner entered the Xiongs’ home, accompanied by Caledonia Police Department officers, acting with the authorization of his supervisor Dutch Leydel. Vashir acknowledged that Thor had been left alone at home in the aforementioned enclosed area on the occasion of Lia‘s birthday. It apparently had not occurred to either Vashir or Lia that Thor might be endangered at hоme alone. Wagner removed Thor from his home and placed him in protective custody with a foster parent, Melinda Kasch.
On March 25, 2009, Dr. George Milonas examined Thor. Dr. Milonas was unable to determine the cause of Thor‘s bruising to a degree of medical certainty. He noted, however, that this case was definitively one of neglect based on the fact that Thor‘s parents had left him at home alone despite the fact that he required constant supervision.
On March 26, 2009, Racine County Judge Stephan Simanek issued a probable cause order for Thor‘s temporary removal and continued foster care placement. The probable cause order was based in part on videotaped interviews conduсted by Officer Lisa Seils, in which Lia and Vashir admitted to having left Thor at home alone potentially as many as four times between January 1, 2009 and March 24, 2009.
On March 27, 2009, Melinda Kasch indicated that she no longer was capable of caring for Thor. Arrangements were made for Becky Collins, one of Thor‘s former teachers, to apply for a foster care license and assume Thor‘s care. On May 4, 2009, Collins informed Wagner that Thor had fallen out of his wheelchair and injured himself, requiring three stitches in his head. Wagner went to Collins’ home to investigate the accident on May 5, 2009. He learned that Thor had rolled down the driveway into the drainage system at the end of the driveway while Collins’ husband had gone inside for a short period of time, leaving Thor unattended. The Xiоngs dispute whether Thor himself released the wheelchair brake or whether it was never set in the first place.
After Collins indicated that she wished to end Thor‘s placement with her by June 3, 2009, Thor was temporarily placed at Lakeview Specialty Hospital & Rehab (“Lakeview“) on June 1, 2009. On June 19, 2009, the Xiongs’ attorney informed Wagner that an accident involving Thor had occurred at Lakeview. While at first Sue Weller, Thor‘s case manager at Lakeview, stated that she was unaware of any accidents, she later informed Wagner that Thor had in fact fallen from his bed on June 1, 2009, and hit his head. Staff responded to the incident, applied ice to the injury, and performed neurological checks
Wagner also interacted with the Xiongs regarding Thor‘s care prior to 2009. Specifically, he was involved in the Xiongs’ voluntary petition to the state seeking protective services for Thor in 2005. On March 22, 2005, Wagner wrote a letter to Lia stating that he had received a message from her husband on March 21, 2005, but could not understand what he said. On April 6, 2005, Wagner wrote an additional letter to Lia stating that he returned her message, but when he called back the person that answered the phone said he had called the wrong number.
Finally, in an April 18, 2005 case note, Wagner indicated that he communicated by phone with Janet Ovel at Family Support Service regarding the Xiongs’ case. Ovel told Wagner that Family Support Service would provide the Xiongs with necessary services and that if there was a problem with the parents following through she would notify RCHSD. The note also stated that both Wagner and Ovel felt the family was attempting to manipulate the system via communications between RCHSD and Family Support Service.
The Xiongs filed suit against Wagner, Dutch Leydel, Marie Froh, and Daniel Chiapetta in the United States District Court for the Eastern District of Wisconsin. They alleged that Thor‘s placemеnt into, and defendants’ subsequent failure to remove him from, protective custody in private foster homes and at Lakeview constituted five deprivations of their civil rights under
On November 21, 2011, the Xiongs filed a motion for partial summary judgment as to their claims regarding the Xiongs’ and Thor‘s right to familial relations and Thor‘s right to bodily security and integrity. On December 1, 2011, defendants filed a motion for summary judgment requesting judgment as to all claims. On February 29, 2012, the district court granted defendants’ motion for summary judgment on all claims. Judge Stadtmueller ruled that qualified immunity precluded liability for all claims stemming from Thor‘s removal as well as his continued placement in protective custody. The district court also determined that there was insufficient evidence to establish that racial animus had motivated the defendants’ actions and accordingly dismissed plaintiffs’ equal protection and conspiracy claims. On March 28, 2012, plaintiffs filed a timely notice of appeal.
II. Discussion
This court‘s review of the district court‘s grant of summary judgment is de novo. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.2006). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Any person who “under the color of law” deprives a person of a right secured by the Constitution may be held civilly liable.
A. Thor‘s Seizure
Plaintiffs first contend that the removal of Thor from their home constitutes a violation of their constitutional rights. Plaintiffs insist that they have not pled a
The
The probable cause inquiry is an objective one, focused on the facts known to defendants at the timе the removal decision was made and upon whether a “prudent caseworker (meaning one of reasonable caution) could have believed that [the child] faced an immediate threat of abuse based on those facts.” Id. at 475 (quoting Brokaw v. Mercer Cnty., 235 F.3d 1000, 1010 (7th Cir.2000)). We need not determine whether probable cause in fact existed at the time of Wagner‘s removal decision. Rather, we may rule on qualified immunity grounds that a reasonable caseworker could have believed that probable cause existed and accordingly wouldn‘t have understood his actions to violate a constitutional right. Id. Thus, as long as RCHSD workers “could have believed [Thor‘s removal] to be lawful, in light of clearly established law and the information [they] possessed,” defendants are entitled to qualified immunity. Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
Defendants could have reasonably believed that probable cause existed in this case. In addition to the referral Wagner received from Thor‘s school on March 24, 2009, RCHSD‘s file included two earlier reports from March 10, 2005 and January 30, 2009 similarly recounting incidents suggestive of abuse or neglect. Before removing Thor, Wagner conducted a thorough investigation, interviewing teachers at Thor‘s school, two of Thor‘s siblings, and Thor himself. The bruising on Thor‘s arm and leg, coupled with the corroborated revelations that Thor had been left at home alone for hours at a time and had been thrown onto the ground all suggest that “a prudent caseworker ... could have believed that [the child] faced an immediate threat of abuse.” Id. While the Xiongs dispute the accuracy of the statements made to Wagner during his interviews with Thor and his siblings, the relevant inquiry is whether the information actually provided to Wagner at the time was sufficient to trigger a reasonable caseworker‘s belief that Thor was in imminent danger. We find that this standard is met here.
The Xiongs argue, among other things, that Hernandez is distinguishable from the present case because it concerned a case of alleged child abuse (there, the child suffered a broken arm), id. at 468, rather than a situation of neglect. While Thor‘s case was ultimately pursued by RCHSD as one of child neglect rather than abuse, the facts available to Wagner at the time of the removal decision did not clearly indicate that this case was exclusively one of neglect. Wagner initially received a physical abuse intake referral from Thor‘s teachers, personally observed bruising on Thor‘s arm and leg, and received information from Thor and his sibling that Thor had been thrown onto the ground by his stepfather as punishment in the past. Further, a licensed physician could not determine the source of Thor‘s bruising to a degree of medical certainty. Thus, this case was not clearly characterized as one of neglect at the outset.
Regardless, the district court properly explained that where neglect, like abuse, provides sufficient grounds for removal, the probable cause analysis is equally applicable in that context. Indeed, in Brokaw, we applied the probable cause inquiry
B. Right to Familial Relations and Continued Withholding
Plaintiffs also allege that their forced separation from Thor violated their
However, like the
We have already established that a reasonable caseworker could have believed that probable cause existed sufficient to justify the initial decision to remove Thor. Thus, the less demanding standard of “reasonable suspicion” is met with respect to Wagner‘s initial decision to remove Thor from the Xiongs’ residence.
However, the continued withholding of a minor may constitute a constitutional violation where probable cause or reasonablе suspicion dissipates. See id. at 480. While Lia and Vashir Xiongs’ claim surrounding their continuing separation from Thor is properly analyzed under the
It is undisputed that on March 26, 2009, Judge Simanek ruled that probable cause justified Thor‘s continued placement in protective custody. Accordingly, the relevant inquiry is whether any reasonable caseworker would have been required to believe that reasonable suspicion or probable cause dissipated between March 24, 2009, when Wagner removed Thor, and March 26, 2009, when Judge Simanek‘s ruling was issued.
There is no evidence that probable cause or reasonable suspicion dissipated during the brief period in question. During that pеriod, Dr. Milonas‘s medical examination of Thor confirmed that the present case was definitively one of at least neglect. Plaintiffs argue that Dr. Milonas‘s report also found that Thor may have injured himself by thrashing, ruling out abuse. However, the report did not remove concerns about abuse or neglect. Dr. Milonas stated that he could not identify the source of Thor‘s bruising to a degree of medical certainty. A reasonable caseworker reading his opinion would not have been required to conclude that reasonable suspicion or probable cause dissipated based on his inconclusive statement. Further, during this period Lia and Vashir indicated in taped interviews with Officer Seils that they had in fact left Thor at home alone оn multiple occasions. These revelations tend to bolster, rather than undermine, defendants’ belief that Thor was in danger at that time. It therefore remained reasonable for Wagner to believe that reasonable suspicion and probable cause had not dissipated and to keep Thor in protective custody.
Plaintiffs argue that Judge Simanek‘s probable cause ruling was based on improper information. Specifically, they contend that Thor had only been left alone for two hours on the occasion of Lia‘s birthday, rather than several hours, as Judge Simanek suggested in his order. To this end, plaintiffs quote language from Brokaw indicating that due process “at a minimum ... requires that government officials not misrepresent facts in ordеr to obtain the removal of a child from his parents.” 235 F.3d at 1020. First, we made these statements in Brokaw in the context of analyzing a procedural due process claim, rather than a substantive due process claim (at issue here). Id. Second, Wagner did not make any misrepresentations or knowingly false statements of the sort alleged in Brokaw. See id. at 1021. The fact that he failed to interrupt Judge Simanek to correct a word choice does not violate plaintiffs’ substantive due process rights. In any event, this argument does not provide any evidence relevant under the applicable standard of whether a reasonable caseworker would have believed that reasonable suspicion or probable cause dissipated.
Finally, the Xiongs suggest that defendants violated thеir familial integrity rights by failing to make reasonable efforts to prevent Thor‘s removal, by making no effort to place Thor with local relatives, and by failing to make reasonable efforts to reunify the Xiong family. However, these arguments do not address the relevant standard of whether a reasonable caseworker could have believed that probable cause existed to justify Thor‘s removal in the first place or whether probable
C. Right to Bodily Security and Integrity
Plaintiffs next argue that defendants violated Thor‘s
i. Foster Placements
Plaintiffs first allege that defendants’ failure to remove Thor from foster care with Collins violated his right to bodily security and integrity under the
However, the facts viewed even in the light most favorable to plaintiffs clearly indicate that Thor‘s fall was the result of an accident, rather than abuse or neglect. Even if Collins or her husband had failed to set Thor‘s wheelchair brake (as opposed to Thor himself having released it, a point that the parties dispute), the Xiongs point to no evidence suggesting abusive intent or disregard sufficient to rise to the level of nеglect on Collins’ part. Collins promptly responded to the incident, brought Thor to the emergency room, and informed Wagner of what had occurred. Wagner performed an investigation the following day. In light of these facts, a reasonable caseworker would not have developed a suspicion or have any actual knowledge that Collins had abused or neglected Thor, or would do so in the future.
The Xiongs next allege that defendants’ failure to remove Thor from foster care at Lakeview violated his right to bodily security and integrity. To this end, they identify the repeated instances of Thor falling or rolling out of bed during his time there, sustaining minor injuries on one occasion. The Xiongs argue that these instances constitute evidence whiсh would place a reasonable caseworker on notice of a pattern of neglect in the facility.
The daily Lakeview logs indicate that Thor fell from his bed on three different days (June 1, June 3, and June 11, 2009). The record also indicates, however, that the Lakeview staff adopted various appropriate measures to promptly respond to these incidents. Following Thor‘s June 1, 2009 fall, the only fall resulting in injury,
ii. Right to Individualized Treatment
Plaintiffs next allege that defendants violated Thor‘s right to bodily integrity by failing to provide him with appropriate individualized treatment. Specifically, the Xiongs argue that defendants’ failure to obtain counseling services for Thor after he had suicidal ideation violated his
In their amended complaint, plaintiffs advanced the general claim that defendants failed to comply with their obligation to provide adequate medical care to Thor during custody. Defendants argue that any right to individualized treatment claim was not properly pled, contending that the thrust of plaintiffs’ bodily security and integrity claim concerned defendants’ failure to remove Thor from his placements with Collins and аt Lakeview, rather than the failure to provide medical care.
In fact, plaintiffs did not mention the
In Nelson, the primary case relied upon by plaintiffs, we determined that juveniles placed in a correctional facility have a substantive due process right to individualized treatment. 491 F.2d at 360. We found that the state had violated this right by substituting a behavioral classification system, which classified juveniles based on their behavior and personality types, for individual treatment and attention. Id. In that case, “the record show[ed] very little individual treatment programmed, much less implemented.” Id.
In the present case, by contrast, the record reveals substantial evidence that Thor received individualized care from licensed physicians. Thor received numerous physical therapy sessions, occupational therapy sessions, speech improvement sessions, and professional evaluations while at Lakeview. Doctors at Lakeview were aware of Thor‘s depressive thoughts and elected in their discretion not to provide counseling. Further, defendants were aware that the Lakeview staff took prompt action in response to the accidents Thor suffered as a result of falling out of bed. It cannot be said that defendants’ conduct, in failing to direct Lakeview to provide Thor with counseling, “violated ‘clearly established’ constitutional rights [here, failure to provide individualized treatment] of which a reasonable person would have been known.” K.H., 914 F.2d at 855 (quotation omitted). Accordingly, to the extent the claim was properly pled, defendants are entitled to qualified immunity for any alleged breach of Thor‘s right to individualized treatment.
iii. Examination of Thor‘s Bruising
Plaintiffs also argue that Wagner‘s examination of Thor‘s pubic area for bruising violated Thor‘s right to bodily security and integrity. The district court determined that this argument had been waived, finding that plaintiffs deprived defendants of fair notice by failing to mention this theory of recovery at any stage prior to summary judgment. On appeal, the plaintiffs have not articulated any argument challenging the district court‘s finding of waiver. The Xiongs suggest only that Wagner‘s examination of Thor violated his
D. All Plaintiffs’ Rights to Equal Protection
The Xiongs next argue that defendants violated their
Plaintiffs have not produced evidence sufficient to meet this standard. The Xiongs’ basic argument is that Wagner harbored racial animus toward them dating back to 2005 and that this animus motivated all of Wagner‘s subsequent adverse decisions affecting their family. As evidence of racial animus, the Xiongs identify Wagner‘s 2005 case note stating that the family was attempting to manipulate the system and his 2009 communication to Weller indicating that he was not sure if the parents were being truthful regarding thе first incident of Thor falling out of bed at Lakeview. The Xiongs assert that such animus resulted in, among other things, Wagner‘s failure to correct Judge Simanek‘s statement that Thor was left alone for “several hours,” his failure to direct doctors to provide Thor with counseling services at Lakeview, and his search of Thor‘s pubic area for bruising.
While reasonable inferences must be drawn in the Xiongs’ favor, “[e]ven on summary judgment, district courts are not required to draw every requested inference; they must only draw reasonable ones that are supported by the record.” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir.2011). Based on the record available, no reasonable juror could infer that Wagner‘s statements demonstrate the existence of racial animus toward the Xiongs. No referencе whatsoever to the Xiongs’ racial background is contained in Wagner‘s aforementioned case note or communication to Weller, nor could a reasonable juror conclude that these statements reflect any sort of discreet racial undercurrent. Without more, the mere fact that the aforementioned events took place and that the involved caseworkers were not of Hmong ancestry does not amount to evidence “sufficient to sustain a jury verdict” in the Xiongs’ favor as to their equal protection claim. Billings, 259 F.3d at 812.
Plaintiffs next argue that defendants applied unequal standards to similarly situated individuals. Specifically, they point to the fact that Thor suffered bruising while in foster placement with Collins and at Lakеview that was not investigated in the same fashion as the bruises that Thor manifested while living with the Xiongs. They attribute this disparate treatment to their Hmong ancestry. But as the district court explained, for this claim to prevail, the disparate treatment would have to be in response to reasonably comparable circumstances. Wagner‘s investigation of the Xiongs was in response to a physical abuse referral from Thor‘s school that was corroborated by information relayed by members of the Xiong family signaling neglect and possible abuse. No formal physical abuse referrals were filed concerning the injuries Thor suffered while in foster care, nor did Wagner‘s inquiries surrounding these incidents reveal corroborated information indicating nеglect of the sort disclosed by Thor and his siblings.
Indeed, Wagner‘s inquiries revealed that the circumstances surrounding the incidents of bruising Thor suffered while in foster care were entirely distinct from the situation at the Xiongs. Collins herself contacted Wagner following Thor‘s injury to inform him of what had occurred. In that instance, Thor was left unattended in his wheelchair for only a brief period while Collins’ husband went into the house, as compared to the hours-long period during which Thor was left at home alone by the Xiongs. At Lakeview, Thor was monitored by professional physicians who provided him with individual treatment and took protective measures in response to
E. Conspiracy to Violate Constitutional Rights
Finally, plaintiffs argue that defendants conspired to violate their equal protection rights under the
III. Conclusion
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment for the defendants on all counts.
JOEL M. FLAUM
UNITED STATES CIRCUIT JUDGE