D.B. Ex Rel. Kurtis B. v. Kopp

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2818
D.B., by his next friend KURTIS B.,
JENNIFER B., and KURTIS B.,
Plaintiffs-Appellants,
v.
JAMES KOPP, JAN MORAVITS, GRANT
COUNTY, and GRANT COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-cv-773-bbc— Barbara B. Crabb, Judge.
ARGUED DECEMBER 5, 2012—DECIDED AUGUST 2, 2013
Before MANION and SYKES, Circuit Judges, and DARROW ,
District Judge.*
*
The Honorable Sara L. Darrow, United States District Court for the
Central District of Illinois, sitting by designation.
2 No. 12-2818
SYKES, Circuit Judge. In September 2010 three young
children—six-year-old D.B. and five-year-old twins C.C. and
her brother W.C.—were “playing doctor” in D.B.’s backyard in
Lancaster, Wisconsin. The twins’ mother walked in on this
activity and interpreted D.B.’s conduct as a sexual assault of
her daughter C.C. She reported the boy’s behavior to the Grant
County Department of Social Services. The Sheriff’s Depart-
ment also stepped in to respond.
An aggressive investigation ensued, and the Grant County
District Attorney eventually filed a petition in circuit court
alleging that D.B. had committed a first-degree sexual assault
and was in need of public protection or services. The petition
was never adjudicated; the case was closed by a consent
decree. D.B.’s parents then filed this civil-rights suit on behalf
of themselves and their son alleging that Grant County officials
overzealously investigated and maliciously prosecuted D.B. for
sexual assault. The complaint asserted claims against the
investigators, the district attorney, and Grant County for
multiple federal constitutional violations and several state-law
torts. The district court dismissed the complaint for failure to
state a claim.
On appeal the plaintiffs narrow their focus to just two
claims: a “class of one” equal-protection claim against the
investigators and a related Monell claim against Grant County.1
As to these claims, the complaint alleges that the twins en-
gaged in the same behavior as D.B., but he alone was subjected
to intense scrutiny, investigation, and unjustifiable court action.
1
See Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978).
No. 12-2818 3
D.B. was singled out, the complaint alleges, because the twins’
father is a “high-ranking local political figure.” The district
court discerned a rational basis for the difference in treatment
and dismissed the claim.
We affirm. Allegations of improper subjective motive are
not enough to state a class-of-one equal-protection claim. The
complaint must allege sufficient facts to plausibly show that
the plaintiff was treated differently from others similarly
situated and that the discriminatory treatment was wholly
arbitrary and irrational. Here, the complaint alleges an im-
proper subjective purpose—political favoritism—but it also
discloses an objective rational basis for the disparate treatment.
The twins’ mother witnessed D.B.’s conduct and reported it.
On the other hand, there was no adult witness to the twins’
behavior; they simply admitted to participating in the “doctor”
game in the “same manner” as D.B. It’s rational to credit a
concrete report from an adult eyewitness and discount the
generalized admission of a five-year-old. This rational explana-
tion for the difference in treatment defeats the claim.
I. Background
We take the following facts from the complaint, accept
them as true, and draw reasonable inferences in the plaintiffs’
favor. See McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873,
879 (7th Cir. 2012). In September 2010 six-year-old D.B. had just
concluded extensive medical testing for digestive problems,
which included rectal examinations and enemas. On the
afternoon of September 12, D.B. and five-year-old twins C.C.
and W.C. were in D.B.’s backyard playing “doctor.” More
4 No. 12-2818
specifically, they were playing “butt doctor,” apparently
prompted by D.B.’s recent medical experience.
During the “game,” D.B. touched C.C.’s bare buttock,
although the exact nature of the touching is disputed. D.B. said
he touched C.C.’s bare buttock with his finger. The twins’
mother thought she saw something different. She walked in on
the children, saw the “doctor” game in progress, and “inter-
preted what she saw as D.B. inserting his finger into C.C.’s
anus.” She reported the incident to her sister-in-law, who
happened to be the regional supervisor in charge of the state
agency that administers family and children’s services. The
sister-in-law in turn notified Jan Moravits, an intake coordina-
tor for the Grant County Department of Social Services.
Because the twins’ father was a public official in Lancaster, the
local police department declined involvement and referred the
matter to the Grant County Sheriff’s Department.
The Sheriff’s Department assigned Deputy James Kopp to
investigate, and he and Moravits commenced a “biased” and
“haphazard” investigation designed to “embarrass and
humiliate six-year-old D.B.” and subject “D.B. and his family
[to] … public negative stigma.” D.B.’s parents retained counsel
and forwarded reports and records from D.B.’s doctor, daycare
provider, and therapist to the Department of Social Services.
An investigator initially concluded that D.B.’s behavior was
not cause for intervention, but Moravits overrode that decision
and insisted on pursuing the investigation further. Meanwhile,
Kopp interviewed the twins, who said they had “touched D.B.
in the same manner for which D.B. was being investigated.”
No. 12-2818 5
D.B.’s parents were summoned to a meeting with Moravits.
They pointed to the reports from D.B.’s doctor, daycare
provider, and therapist in an effort to show that there was no
cause for concern. Moravits “disregarded” these records and
said that if D.B. was not prepared to “admit his crime,” then
“there was no reason to have this meeting.” She dismissed
D.B.’s parents, telling them to “go home and rethink about
bringing D.B. in to her to admit his crimes.” She also threat-
ened “to have their children removed if they did not give in to
her demands.”
D.B.’s parents did not bring their son in to “admit his
crimes.” Moravits referred the incident to Grant County
District Attorney Lisa Riniker as a case of first-degree sexual
assault. Moravits also “made an effort to have D.B. register [as
a sex offender] when he turns eighteen.” Kopp continued to
investigate, looking for additional witnesses. He “came up
with a former babysitter” who “told a story about D.B. making
sexual contact with her.” Kopp “cherry-picked” the sitter’s
story, “ignor[ed] contradictory testimony,” and sent a report
to Moravits and Riniker recounting the sitter’s allegations and
concluding that D.B. had committed a fourth-degree sexual
assault against the babysitter. Kopp also visited D.B.’s school
seeking information about the boy. Although the twins had
admitted to Kopp that they had engaged in the same conduct
as D.B., neither Kopp nor Moravits investigated them.
Based on this investigation, District Attorney Riniker filed
a petition in Grant County Circuit Court alleging that D.B.
committed a first-degree sexual assault of a child and was in
6 No. 12-2818
need of protection or services.2 See WIS . STAT . §§ 938.13(12)
(governing petitions for child protection or services),
948.02(1)(b) (defining the crime of first-degree sexual assault of
a child). A petition of this sort initiates an elaborate court
process that leads to a range of available dispositional reme-
dies from counseling to agency supervision to removal of the
child from the parents’ home. See id. § 938.345. The petition at
issue here was never adjudicated; D.B.’s parents resolved it
pursuant to a consent decree, and the case has since been
dismissed.3 See id. § 938.32.
2
The complaint and the plaintiffs’ brief repeatedly state that the district
attorney “charged” D.B. with first-degree sexual assault. In Wisconsin (and,
we assume, everywhere else), a six-year-old child cannot be charged or
convicted of a crime; nor can a six-year-old be found delinquent for having
violated a criminal statute. See W IS . S TAT . § 938.02(3m) (the term “delin-
quent” in Chapter 938 refers to a juvenile 10 years of age or older who has
violated any state or federal criminal law). At oral argument plaintiffs’
counsel acknowledged that the district attorney did not file a criminal
“charge” but rather a petition alleging that D.B. was a child in need of
public protection or services because he had committed a delinquent act. See
id. § 938.13(12) (authorizing the court to adjudicate a child in need of public
protection or services if “[t]he juvenile is under 10 years of age and has
committed a delinquent act”).
Proceedings under Chapter 938 of the Wisconsin Statutes are not
criminal proceedings. A dispositional order entered on a Chapter 938
petition— whether adjudicating a juvenile delinquency or ordering
protection or services— “is not a conviction of a crime.” Id. § 938.35(1).
3
A second petition alleging that D.B. committed disorderly conduct, see id.
§ 947.01(1), was also dismissed pursuant to this consent decree. The second
petition was based on the babysitter’s allegations.
No. 12-2818 7
D.B. and his parents then filed this civil-rights suit against
Kopp, Moravits, Riniker, Grant County, and the Grant County
Department of Social Services. (The county defendants are the
same for purposes of this suit, so we will not distinguish them
further.) The complaint alleged that the individual defendants
are liable under 42 U.S.C. § 1983 for various federal constitu-
tional violations—deprivation of equal protection, procedural
due process, and substantive due process; unlawful seizure;
and infliction of cruel and unusual punishment—and also that
they committed several state-law torts. The Monell claim
against the County alleged that the constitutional violations
were caused by official county policy or practice. The com-
plaint sought $2 million in compensatory damages and an
award of punitive damages.
The defendants moved to dismiss for failure to state a
claim. See FED . R. CIV . P. 12(b)(6). The district court granted the
motion but permitted the plaintiffs to file an amended com-
plaint. They did so, and again the defendants moved to
dismiss. The district court granted the motion and entered final
judgment, holding that Riniker had absolute prosecutorial
immunity and that the complaint failed to state a claim for any
constitutional violation. The court also dismissed the state-law
claims against the County with prejudice and relinquished
supplemental jurisdiction over the state-law claims against
Kopp and Moravits. This appeal followed.
II. Analysis
D.B. and his parents challenge only the dismissal of their
equal-protection claim against Kopp and Moravits and the
8 No. 12-2818
related Monell claim against Grant County. To survive a
motion to dismiss under Rule 12(b)(6), a complaint must “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibil-
ity when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). We review a Rule 12(b)(6) dismissal de novo.
See St. John’s United Church of Christ v. City of Chicago, 502 F.3d
616, 625 (7th Cir. 2007).
The complaint alleges that Kopp and Moravits violated
D.B.’s rights under the Equal Protection Clause of the Four-
teenth Amendment by subjecting him to a heavy-handed and
unjustified investigation while letting the twins off scot-free
even though they engaged in the same behavior. The plaintiffs
also claim that Grant County is on the hook for damages under
Monell because county policy caused the constitutional
violation. See Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th
Cir. 2012) (“To establish municipal liability [under § 1983 and
Monell], a plaintiff must show the existence of an official policy
or other governmental custom that not only causes but is the
moving force behind the deprivation of constitutional rights.”
(internal quotation marks omitted)).
Both claims rely on “class of one” equal-protection doctrine,
which recognizes that the Equal Protection Clause may “give[]
rise to a cause of action on behalf of a ‘class of one’ where the
plaintiff d[oes] not allege membership in a class or group” if
the plaintiff can show “that she has been intentionally treated
differently from others similarly situated and that there is no
No. 12-2818 9
rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
Stated differently, Olech holds that the Equal Protection Clause
“protect[s] individuals against purely arbitrary government
classifications, even when a classification consists of singling
out just one person for different treatment for arbitrary and
irrational purposes.” Geinosky v. City of Chicago, 675 F.3d 743,
747 (7th Cir. 2012). The Supreme Court restated this under-
standing of class-of-one theory in Engquist v. Oregon Depart-
ment of Agriculture, 553 U.S. 591, 601 (2008), although there the
Court barred class-of-one claims in the context of public
employment, id. at 605.
Since Olech, however, we have had some difficulty arriving
at a stable legal standard for adjudicating class-of-one claims.
See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 889 (7th Cir.
2012) (en banc) (per curiam). The disagreement in Del Marcelle
centered on the role of illegitimate motive or improper purpose
in class-of-one litigation. The court split three ways. Some
members of the court thought the plaintiff should be required
to plead and prove that the disparate treatment was motivated
by personal ill will or other illegitimate purpose; that is, a
purpose unrelated to public duty. See id. (Posner, J.) (plurality
opinion) (writing for four members of the court). Others
expressed the view that personal animus or other improper
motive is not an element of the claim but just one way to prove
that the defendant’s action lacked a rational basis. See id. at
913–14 (Wood, J., dissenting) (writing for five members of the
court). One member of the court concluded that motive or
intent “has no role at all” in class-of-one litigation. See id. at 900(Easterbrook, C.J., concurring in the judgment).
10 No. 12-2818
The “motive” complication is not present here. The com-
plaint clearly alleges that D.B. was subjected to an overbearing
investigation and unjustified court proceedings based on
improper political favoritism: The investigators were biased
against him and favored the twins because the twins’ father
was a “high-ranking” local public official. So whether im-
proper motive is a required element or an optional method of
proof, the complaint adequately pleads it and is not legally
insufficient on that basis.
The remaining elements of the claim are those announced
by the Supreme Court in Olech, which were reiterated in
Engquist and as far as we know remain uncontroversial: A
class-of-one plaintiff must plead and prove that he was
“ ‘intentionally treated differently from others similarly situ-
ated and that there is no rational basis for the difference in
treatment.’ ” Engquist, 553 U.S. at 601 (quoting Olech, 528 U.S.
at 564). The rational-basis requirement sets the legal bar low
and simply requires “a rational relationship between the
disparity of treatment and some legitimate governmental
purpose.” Srail v. Village of Lisle, Ill., 588 F.3d 940, 946 (7th Cir.
2009) (internal quotation marks omitted). The burden is on the
challenger “to eliminate any reasonably conceivable state of
facts that could provide a rational basis for the classification.”
Id. at 946–47 (internal quotation marks omitted); see also Bd. of
Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001)
(explaining that “the burden is upon the challenging party to
negative any reasonably conceivable state of facts that could
provide a rational basis for the classification” (internal quota-
tion marks omitted)).
No. 12-2818 11
“[A] ‘perplexing situation’ … arises when a lawsuit chal-
lenging a government action subject only to rational basis
review is evaluated under the deferential standard of a
Rule 12(b)(6) motion to dismiss.” Flying J Inc. v. City of New
Haven, 549 F.3d 538, 546 (7th Cir. 2008) (quoting Wroblewski v.
City of Washburn, 965 F.2d 452, 459 (7th Cir. 1992)). A class-of-
one plaintiff must anticipate this dilemma. “[T]o get past a
Rule 12(b)(6) motion to dismiss on a class of one equal protec-
tion claim, ‘a plaintiff must allege facts sufficient to overcome
the presumption of rationality that applies to government
classifications.’ ” Id. (quoting Wroblewski, 965 F.2d at 460).
Whether or not bad motive is required, it is clear that an
allegation of improper motive does not necessarily overcome
the presumption of rationality and permit the case to move
forward. To the contrary, “a given action can have a rational
basis and be a perfectly logical action for a government entity
to take even if there are facts casting it as one taken out of
animosity.” Flying J Inc., 549 F.3d at 547. So the proper question
here is this: Does the complaint reveal a rational basis for treat-
ing D.B. differently notwithstanding the investigators’ political
motivation? It does. Accordingly, the plaintiffs have pleaded
themselves out of court. See Jackson v. Marion County, 66 F.3d
151, 153–54 (7th Cir. 1995) (“[A] plaintiff can plead himself out
of court by alleging facts which show that he has no claim,
even though he was not required to allege those facts. Allega-
tions in a complaint are binding admissions, and admissions
can of course admit the admitter to the exit from the federal
courthouse.” (citations omitted)).
12 No. 12-2818
The complaint alleges that the twins’ mother witnessed
D.B.’s conduct, interpreted it as a sexual assault of her daugh-
ter, and reported the incident to Grant County authorities. In
contrast, no adult witnessed the twins’ conduct; the complaint
alleges only that C.C. and W.C. admitted to Kopp that they
“touched D.B. in the same manner for which D.B. was being
investigated.” Together these allegations suggest an objectively
rational basis to investigate D.B. and not the twins, even if the
investigators were subjectively motivated by a desire to protect
or curry favor with the twins’ father. It’s rational to follow up
on a report from an adult eyewitness while declining to open
an investigation based on an undifferentiated admission from
a five-year-old child.
Of course, political connections may also plausibly explain
why D.B. was targeted for investigation and the twins were
not. But the test for rationality does not ask whether the benign
justification was the actual justification. All it takes to defeat the
plaintiffs’ claim is a conceivable rational basis for the difference
in treatment. See, e.g., Heller v. Doe, 509 U.S. 312, 320 (1993)
(explaining that a classification “must be upheld against [an]
equal protection challenge if there is any reasonably conceiv-
able state of facts that could provide a rational basis for the
classification” (internal quotation marks omitted)); Srail,
588 F.3d at 946–47 (explaining that “any rational basis will
suffice, even one that was not articulated at the time the
disparate treatment occurred”). The allegations in the com-
plaint suggest a rational reason to investigate D.B. and not the
twins.
No. 12-2818 13
We are not suggesting that this was a well-administered
investigation, or a wise exercise of prosecutorial discretion, for
that matter. Our decision today should not be understood as
an endorsement of this use of state power, which strikes us
(assuming the allegations are true) as a troubling overreaction
to a situation that could and should have been handled
informally. It’s easy to understand why the twins’ mother
would be alarmed and upset, but it’s also reasonable to expect
that the response by Grant County officials would be measured
and proportionate. As the district court aptly put it, accusing
a six-year-old boy of first-degree sexual assault shows “poor
judgment at best.” But poor judgment does not violate the
Constitution.
Accordingly, the complaint fails to state an equal-protection
claim against Kopp and Moravits. With that conclusion, the
Monell claim against Grant County necessarily fails. See Palka
v. Shelton, 623 F.3d 447, 455 (7th Cir. 2010) (“[B]ecause [the]
complaint fails to state a claim for any constitutional violation,
the … County cannot be held liable [under Monell] … .”).
AFFIRMED .