Lane v. Milwaukee Cnty. Dep't of Soc. Servs. Children & Family Servs. Div.

DANETTEA LANE, Plaintiff,

v. MILWAUKEE COUNTY DEPARTMENT OF SOCIAL SERVICES CHILDRENAND FAMILY SERVICES DIVISION, LAURA REITZ,JOHANNA BARKEI, REBECCA EHRICK,ISA GONZALEZ-ZAYAS, BRENDA NORTON,and ROBIN ORTIZ, Defendants.

Case No. 10-CV-297-JPS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: October 28, 2011

ORDER

On April 8, 2010, plaintiff, Danettea Lane ("Ms. Lane"), initially filed a pro se complaint against the above-captioned defendants alleging violations of constitutional and statutory rights associated with the removal of plaintiff's children from her custody, as well as subsequent management of plaintiff's child welfare case. (Docket #1). On April 15, 2010, the court granted Ms. Lane's motion for leave to proceed in forma pauperis, but did not allow her to proceed on several of her claims because they were barred by the Rooker-Feldman doctrine. (Docket #5). Additionally, the court instructed Lane to amend her complaint before she would be permitted to serve defendants. (Id.). Plaintiff filed a Second Amended Complaint on April 19, 2010, with similar deficiencies. (Docket #7). The court found that Ms. Lane had not complied with the court's instructions in amending her complaint and denied plaintiff's motion to appoint her counsel. (Docket #9). On June 2, 2010,plaintiff filed her Third Amended Complaint. (Docket #14). On October 28, 2010, the court screened plaintiff's Third Amended Complaint, dismissing several more of Lane's claims for failure to state a claim, but allowing Lane to proceed on select claims. (Docket #17). The Court characterized plaintiff's allegations as civil rights claims brought under 42 U.S.C. § 1983 and found that plaintiff had properly alleged violations of the Fourth and Fourteenth Amendments. (Id.). Specifically, the court found that Ms. Lane's claims appeared to argue that: 1) the defendants violated her Fourth Amendment rights when they conducted an illegal search and seizure at both her home and on the premises of her child's school; and 2) the defendants deprived the plaintiff of her liberty interests in her familial relations in violation of the Fourteenth Amendment. (Id.).

The defendants have all filed motions for summary judgment as to Ms. Lane's claims. Although initially Ms. Lane appeared pro se in this action, Attorney Tarena W. Franklin filed a notice of appearance as counsel for the plaintiff on May 26, 2011. However, this case is a bit unusual as Ms. Lane filed a pro se response to the defendants' motions for summary judgment. It appears that Ms. Lane has been dissatisfied with Attorney Franklin's representation of her and, therefore, has taken matters into her own hands. Nevertheless, Attorney Franklin has not sought leave to withdraw as counsel for the plaintiff and remains Ms. Lane's counsel of record in this action.¹

In opposition to the defendants' motions for summary judgment, Ms. Lane has filed two similar memoranda and her own affidavit. However, she has not responded to any of the defendants' proposed statements of facts norhas she filed her own proposed statement of facts. Because Ms. Lane has not contested any of the factual findings proposed by the defendants, the court is permitted to conclude that the facts, as identified by the defendants in their proposed findings of fact, are undisputed. See Civ.L.R. 56(b)(4); see also Salvadori v. Franklin School Dist., 221 F. Supp. 2d 957, 960 (E.D. Wis. 2001) ("Because the plaintiff has not contested any of the factual findings proposed by the defendants as contemplated under Local Rule 56.2, the court is permitted to conclude that the facts, as identified by the defendants in their proposed findings of fact, are undisputed." (citing Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994))).

1. Legal Standard

"The court shall grant summary judgment 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." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991). "Material facts" are those under the applicable substantive law that "might affect the outcome of the suit." See Anderson, 477 U.S. at 248. A dispute over "material fact" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissibleevidence to support the fact." Fed. R. Civ. P. 56(c)(1). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

"The initial burden is on the moving party... to demonstrate that there is no material question of fact with respect to an essential element of the nonmoving party's case." Delta Consulting Group, Inc. v. R. Randle Constr, Inc., 554 F.3d 1133, 1137 (7th Cir. 2009) (quoting Cody v. Harris, 409 F.3d 853, 860 (7th Cir. 2005)). Once the movant satisfies this initial burden, the burden then shifts to the nonmoving party who "may not rest upon the mere allegations or denials of his pleading, but...must set forth specific facts showing that there is a genuine issue for trial." Doe v. Cunningham, 30 F.3d 879, 883 (7th Cir. 1994) (quoting Anderson, 477 U.S. at 248). There is no issue for trial unless the nonmoving party demonstrates that there is sufficient evidence in the nonmoving party's favor for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the evidence is "merely colorable" or is "not significantly probative," summary judgment may be granted. Id. Consequently, the nonmoving party must do more than raise some doubt as to the existence of a fact. In ruling on a summary judgment motion, the court must view the evidence plus all inferences reasonably drawn from the evidence in the light most favorable to the non-moving party. TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007).

2. Discussion

This case stems from a child abuse investigation of the plaintiff by certain of the defendants beginning in September of 2007. Ms. Lane's Third Amended Complaint states claims against the following defendants: 1) Milwaukee County Department of Social Services Children and Family Division or the Wisconsin Department of Children and Families ("DCF");² (2) Isa Gonzalez-Zayas ("Ms. Zayas"); (3) Officer Robin Ortiz ("Officer Ortiz"); (4) Brenda Norton ("Ms. Norton"); (5) Laura Reitz ("Ms. Reitz"); (6) Johanna Barkei ("Ms. Barkei"); and (7) Rebecca Ehrick ("Ms. Ehrick"). The court will address each of the defendant's motions for summary judgment in turn as well as the undisputed facts that pertain to each defendant.

2.1 The Wisconsin Department of Children and Families

As an initial matter, the court notes that the Wisconsin Department of Children and Families is entitled to summary judgment. It is undisputed that the DCF is a state agency. Sovereign immunity bars an action against a state agency where, as here, it is clear that the state has not waived its immunity nor has Congress overridden it. See Kroll v. Board of Trustees of Univ. of Illinois, 934 F.2d 904, 907 (7th Cir. 1991) (a "state agency is the state for purposes of the Eleventh Amendment."); Brunken v. Lance, 807 F.2d 1325, 1330 (7th Cir. 1986) (vacating an injunction issued against the State of Illinois' Departmentof Children and Family Services because such relief is barred by the Eleventh Amendment).³

2.2 Isa Gonzalez-Zayas

Plaintiff's Third Amended Complaint alleges that "defendant Isa Gonzalez-Zayas was at all relevant times an employee of [DCF]." (Third Am. Compl. ¶¶ 5, 15, 34(g)). In plaintiff's memorandum in opposition to Ms. Zayas' motion for summary judgment, plaintiff elaborates on her claims against Ms. Zayas, seemingly arguing that Ms. Zayas did not appropriately perform her duties as a guardian ad litem for Ms. Lane's children.

2.2.1 Background

Ms. Zayas is an attorney licensed to practice law in Wisconsin. She is employed as a staff attorney for the Legal Aid Society of Milwaukee, Inc. ("LAS"). (Hill-Roberts Aff. ¶ 3; Defendant Zayas' Proposed Statement of Facts [ZPSF] ¶ 1). LAS is a not-for-profit private law firm that provides guardian ad litem services to the Milwaukee County Circuit Court, Children's Division ("Children's Court"). (Hill-Roberts Aff. ¶ 2, ZPSF ¶ 2). Accordingly, at all times relevant to the current action, Ms. Zayas was not an employee of any federal, state, or local government agency. (Hill-Roberts Aff. ¶ 3, ZPSF ¶ 3). More particularly, Ms. Zayas is not a social worker and she has never been employed by the DCF. (Hill-Roberts Aff. ¶ 3, ZPSF ¶ 4).

Ms. Zayas was appointed by Children's Court judges to act as a guardian ad litem for Ms. Lane's minor children in Child in Need of Protective Services ("CHIPS") proceedings pending in Children's Court.(Hill-Roberts Aff. ¶ 4; ZPSF ¶ 5). As a guardian ad litem, Ms. Zayas' responsibility is to be an advocate for the best interests of the child for whom the appointment is made, and her undivided loyalty is owed to the minors whose interests she is appointed to represent and not to the State of Wisconsin nor to Milwaukee County. (Hill-Roberts Aff. ¶ 4; ZPSF ¶ 6). Ms. Zayas' only contact with plaintiff was...