Lia Xiong v. Michael Wagner ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1737
V ASHIR J. X IONG, L IA Y. X IONG, and
R. T HOR, a minor by his next friends,
Plaintiffs-Appellants,
v.
M ICHAEL W AGNER, D UTCH L EYDEL,
M ARIE F ROH, and D ANIEL C HIAPPETTA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-CV-288-JPS—J.P. Stadtmueller, Judge.
A RGUED S EPTEMBER 12, 2012—D ECIDED O CTOBER 19, 2012
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
F LAUM, 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
2 No. 12-1737
wheelchair. Wagner commenced an investigation after
receiving a referral from personnel at Thor’s middle
school that had observed bruising on his arm and leg.
Thor’s mother and stepfather, Lia and Vashir Xiong, and
Thor sued caseworker Michael Wagner, Dutch Leydel
(Wagner’s supervisor), Marie Froh (another caseworker
who later worked on the case), and Daniel Chiapetta
(Froh’s supervisor), alleging violations of their constitu-
tional rights under 42 U.S.C. § 1983 and 42 U.S.C. § 1985.
The district court granted summary judgment to defen-
dants on qualified immunity grounds and because plain-
tiffs had failed to establish sufficient evidence of racial
animus. For the following reasons, we affirm the holding
of summary judgment in favor of the defendants on
all counts.
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,
No. 12-1737 3
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
stated that his parents had left Thor home alone at least
on the occasion of Lia Xiong’s (“Lia”) birthday, for ap-
proximately two hours, in an area of their home which
they enclosed by erecting a sort of furniture blockade.
Wagner also interviewed Thor’s sister, D.T., at school, who
confirmed that Thor was sometimes left at home alone
in an enclosed area, specifically on the occasion of Lia’s
birthday. D.T. also corroborated the method used to
confine Thor to a specific area to prevent him from
leaving the living room.
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 aforemen-
4 No. 12-1737
tioned 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 home alone. Wagner re-
moved 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 tempo-
rary removal and continued foster care placement. The
probable cause order was based in part on videotaped
interviews conducted 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. Arrange-
ments 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
No. 12-1737 5
driveway while Collins’ husband had gone inside for a
short period of time, leaving Thor unattended. The Xiongs
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 throughout the rest of the evening
and following day. Lakeview staff put in place protective
mats on the floor surrounding Thor’s bed to prevent
further injuries. Weller also relayed to Wagner that on
two additional days Thor had rolled himself out of bed,
though Lakeview’s logs indicated that he did not
suffer any injuries. On August 7, 2009, Thor was trans-
ferred from Lakeview to foster care at the home of
Cindy and Jeb Lucht.
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 protec-
tive 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
6 No. 12-1737
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 in-
dicated 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 Wiscon-
sin. They alleged that Thor’s placement into, and de-
fendants’ subsequent failure to remove him from, pro-
tective custody in private foster homes and at Lakeview
constituted five deprivations of their civil rights under
42 U.S.C. § 1983 and § 1985. Specifically, they alleged
violations of all plaintiffs’ Fourteenth Amendment due
process rights to familial relations, Thor’s Fourteenth
Amendment right to bodily security and integrity,
all plaintiffs’ Fourteenth Amendment equal protection
rights, and that the defendants conspired to deprive
the plaintiffs of their Fourteenth Amendment equal
protections rights.
No. 12-1737 7
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 integ-
rity. 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 pre-
cluded 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 dis-
missed 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 sum-
mary 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.” Fed. R. Civ. P.
56(a). Facts are viewed in the light most favorable to the
nonmovants, drawing all reasonable inferences in their
favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). To
survive a motion for summary judgment, the nonmovants
“must make a showing sufficient to establish each
8 No. 12-1737
essential element of their cause of action for which they
will bear the burden of persuasion at trial.” Billings v.
Madison, 259 F.3d 807, 812 (7th Cir. 2001). Our review
of qualified immunity determinations is also de novo.
Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925 (7th
Cir. 2011).
Any person who “under the color of law” deprives a
person of a right secured by the Constitution may be
held civilly liable. 42 U.S.C. § 1983. However, “where
their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have been aware,” qualified immunity
shields government actors from liability for civil dam-
ages. Siliven, 635 F.3d at 925 (citing Pearson v. Cal-
lahan, 555 U.S. 223, 129 (2009)). In determining
whether qualified immunity applies, “a court considers
(1) whether the plaintiff’s allegations show that the defen-
dant violated a constitutional right, and (2) whether
that right was ‘clearly established’ at the time of the
defendant’s conduct.” Hernandez ex rel. Hernandez v.
Foster, 657 F.3d 463, 473 (7th Cir. 2011) (citation omitted).
The court may analyze either prong first, in its discretion.
Id. “A right is clearly established ‘when, at the time of
the challenged conduct, [t]he contours of [a] right [are]
sufficiently clear’ that ‘every reasonable official would
have understood that what he is doing violates that
right.’ ” Id. at 473-74 (quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080 (2011)). The plaintiffs need not identify a
specific case directly on point, but “existing precedent
must have placed the statutory or constitutional ques-
tion beyond debate.” Id. at 474 (citation omitted).
No. 12-1737 9
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 Fourth
Amendment claim surrounding Thor’s initial removal,
but rather that their claims relating to Thor’s seizure
are properly analyzed under the Fourteenth Amend-
ment. However, in Hernandez, a case involving similar
allegations of constitutional violations surrounding
the removal of a child by social welfare workers, we
clarified that where the child himself brings a claim re-
garding his initial removal, the Fourth Amendment
provides the proper analytical framework. 657 F.3d at
474 (“[The child’s] claim arising from his initial removal
is properly analyzed under the Fourth Amendment
because it is premised on his seizure and does not
coincide with sufficiently separate conduct involving
his relationship with his parents.”). We explained that
“[s]ubstantive due process may not be called upon when
a specific constitutional provision [i.e., the Fourth Amend-
ment] protects the right allegedly infringed upon.” Id.(citation omitted). Accordingly, plaintiff Thor’s constitu-
tional claim regarding his initial seizure is properly
analyzed under the Fourth Amendment.
The Fourth Amendment’s proscription of unreasonable
seizures applies in the context of the removal of a child
from a home by social welfare workers. See id. at 475.
“In the context of removing a child from his home and
family, a seizure is reasonable if it is pursuant to a court
order, if it is supported by probable cause, or if it is
justified by exigent circumstances, meaning that state
10 No. 12-1737
officers ‘have reason to believe that life or limb is in
immediate jeopardy.’ ” Id. at 474 (citation omitted). Thor’s
removal from his home and placement into protective
custody constitutes a seizure. Id. (“Removing [the
child] from his home and parents and taking him into
protective custody qualifies as a seizure.”). Wagner’s
removal of Thor was not pursuant to a court order or
justified by exigent circumstances and therefore must
have been supported by probable cause in order to
qualify as reasonable.
The probable cause inquiry is an objective one,
focused on the facts known to defendants at the time
the removal decision was made and upon whether a
“prudent caseworker (meaning one of reasonable cau-
tion) could have believed that [the child] faced an im-
mediate 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 im-
munity grounds that a reasonable caseworker could
have believed that probable cause existed and accordingly
wouldn’t have understood his actions to violate a con-
stitutional 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
(1991)).
Defendants could have reasonably believed that
probable cause existed in this case. In addition to the
No. 12-1737 11
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 re-
counting incidents suggestive of abuse or neglect. Before
removing Thor, Wagner conducted a thorough inves-
tigation, 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 case-
worker’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 con-
cerned 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 ex-
clusively 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
12 No. 12-1737
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 in a case asserting
various § 1983 claims surrounding a situation of alleged
child neglect. 235 F.3d at 1011. Thus, because defendants
could have reasonably believed that probable cause
existed sufficient to justify Thor’s seizure—and accord-
ingly would not have understood their actions to
violate clearly established law—qualified immunity
shields them from any alleged liability stemming from
Thor’s initial removal. We therefore affirm the grant
of summary judgment in defendants’ favor on this claim.
B. Right to Familial Relations and Continued With-
holding
Plaintiffs also allege that their forced separation from
Thor violated their Fourteenth Amendment right to
familial relations.1 This court has recognized that the
1
Plaintiffs disavow the notion that their substantive due
process claim is based solely on Thor’s initial removal, empha-
(continued...)
No. 12-1737 13
Fourteenth Amendment includes the right to associate
with relatives, Mayo v. Lane, 867 F.2d 374, 375 (7th Cir.
1989), and therefore that substantive due process
includes the right to familial integrity. Brokaw, 235 F.3d
at 1018.
However, like the Fourth Amendment, the Fourteenth
Amendment right to familial integrity is not absolute. Id.
at 1019. Rather, “a balance must be reached between
the fundamental right to the family unit and the state’s
interest in protecting children from abuse, especially
in cases where children are removed from their homes.”
Id. Caseworkers achieve the proper balance where they
have “ ‘some definite and articulable evidence giving rise
to a reasonable suspicion’ of past or imminent danger
of abuse before they . . . take a child into protective cus-
tody.” Hernandez, 657 F.3d at 478 (quoting Brokaw, 235
F.3d at 1019). To qualify as a “reasonable suspicion,”
caseworkers must have “more than a hunch but less
than probable cause.” Id. (quoting Siliven, 635 F.3d at 928).
We have already established that a reasonable case-
worker could have believed that probable cause existed
1
(...continued)
sizing that the court should assess their entire period of separa-
tion from Thor in the aggregate. If Lia and Vashir had ad-
vanced a claim based solely on Thor’s initial removal, the
result would be identical to that of Thor’s Fourth Amendment
claim: Parents’ substantive due process claims “stand or fall
with [the child’s] Fourth Amendment claim premised on his
removal.” Hernandez, 657 F.3d. at 478.
14 No. 12-1737
sufficient to justify the initial decision to remove Thor.
Thus, the less demanding standard of “reasonable suspi-
cion” 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 reasonable suspicion dissipates. See id. at 480.
While Lia and Vashir Xiongs’ claim surrounding their
continuing separation from Thor is properly analyzed
under the Fourteenth Amendment, Brokaw, 235 F.3d at
1019 (“substantive due process provides the appropriate
vehicle for evaluating the constitutionality of the nearly
four-month government-forced separation of [the child]
from his parents.”);2 see also Hernandez, 657 F.3d at 480(“[The child’s parents] were not seized; their continued
withholding claims are properly analyzed under sub-
stantive due process.”), Thor’s continued withholding
claim is properly analyzed under a Fourth Amendment
framework. Id. (“Other than the passage of time, the
harm [the child] complains of is no different than the
harm he alleges was caused by his initial removal . . .
Therefore [the child’s] continued withholding claim is
analyzed under the Fourth Amendment.”). Thus, while
reasonable suspicion provides the standard under which
2
We acknowledged in Brokaw, however, that allegations of
constitutional violations surrounding the initial removal of a
child “should be considered under the Fourth Amendment,
not under the rubric of substantive due process.” 235 F.3d.
at 1018.
No. 12-1737 15
Lia and Vashir’s continuing separation claim must be
analyzed, probable cause again provides the applicable
standard with respect to Thor’s continued separation
claim.
It is undisputed that on March 26, 2009, Judge Simanek
ruled that probable cause justified Thor’s continued
placement in protective custody. Accordingly, the rele-
vant 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 period, 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 on multiple
occasions. These revelations tend to bolster, rather
than undermine, defendants’ belief that Thor was in
16 No. 12-1737
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 in-
dicating that due process “at a minimum . . . requires
that government officials not misrepresent facts in order
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 misrep-
resentations 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
their familial integrity rights by failing to make rea-
sonable efforts to prevent Thor’s removal, by making no
effort to place Thor with local relatives, and by failing to
No. 12-1737 17
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
cause or reasonable suspicion dissipated during the
period in question. Defendants are entitled to qualified
immunity for any alleged violation of plaintiffs’ right to
familial relations, and therefore summary judgment in
their favor is appropriate.
C. Right to Bodily Security and Integrity
Plaintiffs next argue that defendants violated Thor’s
Fourteenth Amendment right to bodily security and
integrity. The Fourteenth Amendment guarantees that “a
child has a constitutional right to be placed into a safe
and secure foster home.” Waubanascum v. Shawano Cnty.,
416 F.3d 658, 665 (7th Cir. 2005). However, state actors
are liable for breaching this right only if they violate
“the right of a child in state custody not to be handed
over by state officers to a foster parent or other
custodian . . . whom the state knows or suspects to be a child
abuser.” Id. (quoting K.H. ex rel. Murphy v. Morgan, 914
F.2d 846, 852 (7th Cir. 1990) (emphasis in original)).
For purposes of our qualified immunity analysis, liability
turns upon whether a reasonable caseworker would
have “actual knowledge or suspicion of the risk of harm
the child may suffer while in foster care.” Id. at 666-67;
see also J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 795 (7th
Cir. 2003) (“[L]iability will only arise if the state actor
18 No. 12-1737
knows or suspects that the agency or foster parents with
whom a child is placed are likely to abuse the child.”).
We have described this standard as one of modified
deliberate indifference. Waubanascum, 416 F.3d at 666.
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 Fourteenth Amend-
ment. To support this claim, they point to the May 4,
2009 incident in which Thor’s wheelchair rolled down
the Collins’ driveway while in their care. Thor was in
fact left unattended for a brief period of time and did
suffer an injury requiring stitches.
However, the facts viewed even in the light most favor-
able 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 neglect on
Collins’ part. Collins promptly responded to the
incident, brought Thor to the emergency room, and
informed Wagner of what had occurred. Wagner per-
formed 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.
No. 12-1737 19
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 which would place a rea-
sonable 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, Thor
was quickly treated and staff performed follow-up neuro-
logical checks throughout the rest of the evening and
following day. Lakeview staff also placed protective
mats around his bed to provide cushioning in the event
of another fall. Upon learning of the June 1, 2009
incident, Wagner contacted Weller at Lakeview to in-
quire. Weller ultimately relayed the above informa-
tion regarding Thor’s fall and treatment, and she
described the precautions taken to prevent further in-
juries. At Lakeview, Thor was at all times under the
care of licensed physicians who took protective mea-
sures to ensure his safety and responded promptly to
all incidents. Armed with these facts, a reasonable case-
worker would not have actual knowledge or a suspicion
that Thor was being abused or neglected at Lakeview.
Contrary to plaintiffs’ assertion, Wagner’s awareness
20 No. 12-1737
that Thor suffered injuries while in foster placement at
Lakeview does not compel the conclusion that a rea-
sonable caseworker would know or suspect that Thor
was likely to be neglected in that facility. Indeed, the
facts surrounding the incident at Lakeview, like those
surrounding the circumstances at Collins’ home, indicate
a contrary finding: that the injuries were the result of
accidents. Defendants are entitled to qualified immunity
for any alleged breach of Thor’s right to bodily security
and integrity based on the decision to continue his place-
ment with Collins and at Lakeview.
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 coun-
seling services for Thor after he had suicidal ideation
violated his Fourteenth Amendment rights. “When a
state assumes the place of a juvenile’s parents, it
assumes as well the parental duties, and its treatment of
its juveniles should, so far as can be reasonably required,
be what proper parental care would provide.” Nelson v.
Heyne, 491 F.2d 352, 360 (7th Cir. 1974). Accordingly, the
Fourteenth Amendment “right to treatment” includes
the “right to minimum acceptable standards of care and
treatment for juveniles and the right to individualized
care and treatment.” Id.In their amended complaint, plaintiffs advanced the
general claim that defendants failed to comply with
No. 12-1737 21
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 re-
move Thor from his placements with Collins and at
Lakeview, rather than the failure to provide medical care.
In fact, plaintiffs did not mention the Fourteenth Amend-
ment right to individualized treatment until their
motion for partial summary judgment. In Abuelyaman v.
Ill. State Univ., 667 F.3d 800 (7th Cir. 2011), this court
upheld the district court’s rejection of a new, fourth
theory of discrimination presented for the first time in
opposition to summary judgment. Id. at 806; see also
Andree v. Ashland Cnty., 818 F.2d 1306, 1314 n.11 (7th
Cir. 1987) (upholding the district court’s rejection of a
theory raised for the first time in opposition to sum-
mary judgment because their “complaint did not give
fair warning of the theory”). Plaintiffs’ generalized asser-
tion that defendants were obligated to provide Thor
with adequate medical care may not have given de-
fendants fair warning of this particular theory of relief.
However, even assuming that plaintiffs’ passing men-
tion of the right to adequate medical care provided de-
fendants with sufficient notice of the claim concerning
Thor’s right to individualized treatment, this claim
does not prevail on the merits.
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 individual-
ized treatment. Id. at 360. We found that the state had
22 No. 12-1737
violated this right by substituting a behavioral classifica-
tion 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 evalua-
tions while at Lakeview. Doctors at Lakeview were
aware of Thor’s depressive thoughts and elected in
their discretion not to provide counseling. Further, de-
fendants 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 estab-
lished’ constitutional rights [here, failure to provide
individualized treatment] of which a reasonable person
would have known.” K.H, 914 F.2d at 855 (quotation
omitted). Accordingly, to the extent the claim was
properly pled, defendants are entitled to qualified im-
munity for any alleged breach of Thor’s right to indi-
vidualized 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
No. 12-1737 23
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 examina-
tion of Thor violated his Fourteenth Amendment rights
and reference the relevant facts, without addressing the
district court’s conclusion regarding the adequacy of
their pleadings. Because plaintiffs have not advanced
an argument on appeal challenging the district court’s
finding of waiver, their argument concerning the exam-
ination of Thor’s bruising is waived on appeal. See, e.g.,
Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.
2012) (“[E]ven arguments that have been raised may
still be waived on appeal if they are underdeveloped,
conclusory, or unsupported by law.”).
D. All Plaintiffs’ Rights to Equal Protection
The Xiongs next argue that defendants violated their
Fourteenth Amendment equal protection rights by
treating them adversely on the basis of their Hmong
ancestry. It is clearly established that such racial or
ethnic discrimination would violate the Equal Protection
Clause; however, defendants are entitled to summary
judgment on the merits of these claims. To establish a
violation of the Fourteenth Amendment’s Equal Protec-
tion Clause, a plaintiff must demonstrate that a “state
actor has treated him differently from persons of a dif-
ferent race and that the actor did so purposefully.” Billings,
24 No. 12-1737
259 F.3d at 812. If the Xiongs “do not produce evidence
sufficient to sustain a jury verdict in their favor, we
shall affirm the district court’s grant of the defendants’
motion for summary judgment.” Id.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 Wag-
ner’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 com-
munication to Weller indicating that he was not sure if
the parents were being truthful regarding the 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 coun-
seling 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 reference whatsoever to
No. 12-1737 25
the Xiongs’ racial background is contained in Wagner’s
aforementioned case note or communication to Weller,
nor could a reasonable juror conclude that these state-
ments 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 Lakeview 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 ances-
try. But as the district court explained, for this claim to
prevail, the disparate treatment would have to be in
response to reasonably comparable circumstances. Wag-
ner’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 neglect of the sort
disclosed by Thor and his siblings.
Indeed, Wagner’s inquiries revealed that the circum-
stances surrounding the incidents of bruising Thor
26 No. 12-1737
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 in-
dividual treatment and took protective measures
in response to his having rolled out of bed. The corrobo-
rated information Wagner received suggesting that
Thor had been deliberately thrown onto the floor by
his stepfather at the Xiongs’ home thus stands in stark
contrast to the care Thor received at Lakeview. It is there-
fore clear that Wagner had “race-neutral reasons” for
making different decisions relating to appropriate investi-
gatory measures in each circumstance. See id. at 813. No
genuine dispute exists as to whether a “a state actor
has treated [plaintiffs] differently from persons of a
different race and that the state actor did so purpose-
fully,” id. at 812, and we therefore affirm the district
court’s grant of summary judgment in defendants’ favor
on this claim.
E. Conspiracy to Violate Constitutional Rights
Finally, plaintiffs argue that defendants conspired to
violate their equal protection rights under the Fourteenth
Amendment. A party may recover damages if two or
more persons conspire for the purpose of depriving the
No. 12-1737 27
plaintiff of the equal protection of the laws. 42 U.S.C.
§ 1985(3). To recover under § 1985(3), a party must estab-
lish:
(1) the existence of a conspiracy, (2) a purpose of
depriving a person or class of persons of equal pro-
tection of the laws, (3) an act in furtherance of the
alleged conspiracy, and (4) an injury to person or
property or a deprivation of a right or privilege
granted to U.S. citizens.
Brokaw, 235 F.3d at 1024. To establish “purpose” under
prong two, a plaintiff must demonstrate racial, ethnic, or
other class-based “invidiously discriminatory animus
behind the conspirators’ actions.” Id. As discussed, plain-
tiffs have not made a showing sufficient to establish the
existence of racial animus on the part of defendants.
Accordingly, plaintiffs’ conspiracy claim falls with
their equal protection claim, and summary judgment in
defendants’ favor is appropriate.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
grant of summary judgment for the defendants on
all counts.
10-19-12