Deborah Cooney v. Lyle Rossiter, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3675
D EBORAH O RLANDO C OONEY,
Plaintiff-Appellant,
v.
L YLE R OSSITER, JR., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2747—Marvin E. Aspen, Judge.
S UBMITTED A UGUST 27, 2009—D ECIDED S EPTEMBER 30, 2009
Before B AUER, P OSNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. Deborah Cooney lost custody
of her two sons after an Illinois state court found that
she suffered from “Munchausen syndrome by proxy,” in
which “an individual produces or feigns physical or
emotional symptoms in another person under his or her
care. Usually the victim is a young child, and the person
producing the symptoms may be the child’s parent or
caretaker, most often the mother.” American Medical
2 No. 08-3675
Association, Complete Medical Encyclopedia 870 (Jerrold B.
Leikin & Martin S. Lipsky eds. 2003); see also Thomas
Lathrop Stedman, Stedman’s Medical Dictionary 1906
(28th ed. 2006). She sued the state court judge (Judge
Nordquist), and others as we’ll see, in federal district
court, charging constitutional violations. The district
court dismissed the suit. Judge Nordquist is of course
absolutely immune from suit, since he was acting in
his judicial capacity in ruling that Cooney was not
entitled to custody.
Cooney’s complaint tells the following story. In 1998
she divorced her husband and was awarded custody of
the couple’s two sons. Later the ex-husband—through his
attorney, defendant Cain—filed a petition to transfer
custody to himself. Judge Nordquist, the judge presiding
over the custody proceeding, appointed defendant
Bischoff as the children’s representative. Under Illinois
law, in proceedings involving a minor, the court can
appoint a lawyer (1) to represent the child as an
attorney would represent an adult, (2) to be the child’s
representative, or (3) to be the child’s guardian ad litem.
750 ILCS 5/506(a). The powers and duties of a child’s
representative are very similar to those of a guardian ad
litem. Compare id., § 5/506(a)(2) with id., § 5/506(a)(3). The
principal differences are that unlike a guardian ad litem
a child’s representative “shall consider, but not be bound
by, the expressed wishes of the child” and “shall not
render an opinion, recommendation, or report to the
court and shall not be called as a witness” but instead
“shall offer evidence-based legal arguments.” Id.; see
In re Marriage of Bates, 819 N.E.2d 714, 726 (Ill. 2004).
No. 08-3675 3
In other words, the child’s representative is a hybrid of
a child’s attorney, 750 ILCS 5/506(a)(1), and a child’s
guardian ad litem. Carl W. Gilmore, Understanding the
Illinois Child’s Representative Statute, 89 Ill. B.J. 458, 460
(Sept. 2001); see In re Marriage of Kostusik, 836 N.E.2d 147,
158 (Ill. App. 2005). The more mature the child, the
likelier the court is to appoint an attorney to represent
the child; the less mature, the likelier that a guardian ad
litem will be appointed; and for children of intermediate
maturity, there is the child’s representative. Cf. Gilmore,
supra, at 461.
Cooney’s complaint alleges that Bischoff “orchestrated”
a court order appointing defendant Rossiter as the chil-
dren’s psychiatrist and began a “witch hunt” against
Cooney by telling Rossiter that “this may be a situation
of Munchausen syndrome (on the part of the Mother).”
Eight months later Rossiter completed his report, con-
cluding that Cooney was indeed exhibiting signs of
Munchausen syndrome by proxy. He noted a number of
occasions over a period of ten years on which Cooney
had attempted to have doctors diagnose her older son
with severe illnesses or injuries. According to the com-
plaint, attorney Cain received a copy of Rossiter’s
report (from Rossiter, Bischoff, or the judge), but Cooney
did not. Cain petitioned for an emergency order of pro-
tection that quoted directly from Rossiter’s draft report.
Judge Nordquist granted the petition, stating that Cooney
was “armed and suicidal,” and temporarily transferred
custody of the children to her ex-husband, their father.
“[T]hereafter, numerous other conspiratorial acts and
violations” of Cooney’s constitutional rights occurred,
4 No. 08-3675
among them that defendant Klaung, the children’s thera-
pist, “made false statements” to the Department of Chil-
dren and Family Services that led to a finding of child
abuse by Cooney.
Rossiter and Bischoff are entitled to absolute immunity.
Guardians ad litem and court-appointed experts,
including psychiatrists, are absolutely immune from
liability for damages when they act at the court’s direction.
E.g., Jones v. Brennan, 465 F.3d 304, 308 (7th Cir. 2006)
(Illinois law); Scheib v. Grant, 22 F.3d 149, 157 (7th Cir. 1994)
(same); Hughes v. Long, 242 F.3d 121, 127-28 (3d Cir. 2001);
Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984). They
are arms of the court, much like special masters, and
deserve protection from harassment by disappointed
litigants, just as judges do. Experts asked by the court to
advise on what disposition will serve the best interests of
a child in a custody proceeding need absolute immunity
in order to be able to fulfill their obligations “without
the worry of intimidation and harassment from
dissatisfied parents.” Id. at 1458. This principle is ap-
plicable to a child’s representative, who although bound
to consult the child is not bound by the child’s wishes
but rather by the child’s best interests, and is thus a
neutral, much like a court-appointed expert witness.
Although Cooney charges that Rossiter and Bischoff
were part of an illegal conspiracy to deprive her of
custody of the children, they are entitled to absolute
immunity because the specific acts (actual or alleged) of
which she complains, such as that Bischoff and Rossiter
communicated with each other about their perceptions of
No. 08-3675 5
Cooney and the children, that the conclusions in
Rossiter’s report are false, and that Bischoff may have
given a draft copy of the report to Cain but not to
Cooney, all occurred within the course of their court-
appointed duties. Cooney does not allege that Rossiter
or Bischoff engaged in misconduct outside that course,
as in Jones v. Brennan, supra, 465 F.3d at 308.
The appeal presents a second issue. Because lawyer Cain
and therapist Klaung are private persons, Cooney could
bring them within the reach of section 1983 only by
charging that they had agreed with a state officer to
deprive her of constitutional rights. See Fries v. Helsper, 146
F.3d 452, 457 (7th Cir. 1998).
Even before Bell Atlantic Corp. v. Twombly, 550 U.S. 554,
570 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009),
a bare allegation of conspiracy was not enough to
survive a motion to dismiss for failure to state a claim.
E.g., Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006);
Walker v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002);
Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997); Young
v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). It was too
facile an allegation. But it was a narrow exception to
the notice-pleading standard of Rule 8 of the civil rules—a
rare example of a judicially imposed requirement to
plead facts in a complaint governed by Rule 8.
In Bell Atlantic the Supreme Court went further, holding
that in complex litigation a complaint must, if it is to
survive dismissal, make plausible allegations. In Iqbal the
Court extended the rule of Bell Atlantic to litigation in
general. Brooks v. Ross, 2009 WL 2535731, at *5 (7th Cir.
6 No. 08-3675
Aug. 20, 2009); Hensley Mfg., Inc. v. ProPride, Inc., 2009 WL
2778220, at *8 n. 4 (6th Cir. Sept. 3, 2009); Fowler v. UPMC
Shadyside, 2009 WL 2501662, at *4 (3d Cir. Aug. 18, 2009);
Moss v. U.S. Secret Service, 572 F.3d 962, 969 n. 7 (9th
Cir. 2009).
The Court’s specific concern in Bell Atlantic was with
the burden of discovery imposed on a defendant by
implausible allegations perhaps intended merely to
extort a settlement that would spare the defendant that
burden. In Iqbal it was with the inroads into the defense
of official immunity—which is meant to protect the
officer from the burden of trial and not merely from
damages liability—that allowing implausible allegations
to defeat a motion to dismiss would make. Smith v.
Duffey, 576 F.3d 336, 339-40 (7th Cir. 2009). Thus, as the
Court said in Iqbal, “determining whether a complaint
states a plausible claim for relief will . . . be a context-
specific task that requires the reviewing court to draw on
its judicial experience and common sense.” 129 S. Ct. at
1950; cf. Courie v. Alcoa Wheel & Forged Products, 2009
WL 2497928, at *2 (6th Cir. Aug. 18, 2009).
In other words, the height of the pleading requirement
is relative to circumstances. We have noted the circum-
stances (complexity and immunity) that raised the bar
in the two Supreme Court cases. This case is not a
complex litigation, and the two remaining defendants
do not claim any immunity. But it may be paranoid pro se
litigation, arising out of a bitter custody fight and
alleging, as it does, a vast, encompassing conspiracy; and
before defendants in such a case become entangled in
No. 08-3675 7
discovery proceedings, the plaintiff must meet a high
standard of plausibility.
Even before the Supreme Court’s new pleading rule, as
we noted, conspiracy allegations were often held to a
higher standard than other allegations; mere suspicion
that persons adverse to the plaintiff had joined a con-
spiracy against him or her was not enough. The com-
plaint in this case, though otherwise detailed, is bereft
of any suggestion, beyond a bare conclusion, that the
remaining defendants were leagued in a conspiracy with
the dismissed defendants. It is not enough (and would not
have been even before Bell Atlantic and Iqbal) that the
complaint charges that “Bischoff and Dr. Lyle Rossiter,
with the aid of Judge Nordquist, Dan Cain, and Brian
Klaung continued the ongoing violations of Plaintiff,
Deborah’s Constitutional rights.” That is too vague. With
regard to Cain, the only specific allegations in the com-
plaint are that he encouraged Bischoff to tell Rossiter to
complete his report “expeditiously”; that he received
Rossiter’s report before Cooney did; and that he “took
control” of the meeting in camera in which all the
attorneys discussed the report with Judge Nordquist.
The only specific allegation regarding Klaung is that
he reported Cooney to the child welfare authority
several months after she lost custody of the children.
No factual allegations tie the defendants to a conspiracy
with a state actor. See, e.g., Fries v. Helsper, supra, 146
F.3d at 457-58; Ciambriello v. County of Nassau, 292 F.3d
307, 324 (2d Cir. 2002).
Cooney’s final argument is that the district court abused
its discretion in denying her motion under Rule 59(e) of
8 No. 08-3675
the Federal Rules of Civil Procedure to be permitted to
file a second amended complaint that would cure the
pleading deficiencies that the court cited in its opinion
dismissing the first amended complaint. She had filed
that complaint after the defendants filed motions to
dismiss her original complaint, and from those motions
she was aware of the pleading hurdles that she would
need to clear. As we said in Harris v. City of Auburn, 27
F.3d 1284, 1287 (7th Cir. 1994), a plaintiff who seeks to
amend her complaint post-judgment “had better pro-
vide the district court with a good reason.” Cooney
provided the court with no reason.
A FFIRMED.
9-30-09