UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KEVIN BROWN,	)
on behalf of himself and all others	)
similarly situated,	)
	)
Plaintiff,	)
	)	1:05-CV-1585-RLY-VSS
v.	)
	)
STATE OF INDIANA, et al.,	)
	)
Defendants.	)

MEMORANDUM OF LAW IN SUPPORT OF STATE DEFENDANTS’ MOTION TO DISMISS

I. Introduction and Background

Plaintiff Kevin Brown (“Brown”) is a father whose minor son was removed from their home on March 7, 2005, by the Marion County Office of Family and Children. Subsequent to the removal, the minor son became the subject of a CHINS case - Child in Need of Services - filed in state court against Brown and has been in foster care since his removal. Brown now brings this uncertified class action on behalf of himself and other men, fathers or fathers-to-be, who have had, or may have, their children removed, for reasons having to do with their sexual orientation: namely, a self-professed attraction to minors. Am. Comp. 3. Plaintiff seeks equitable relief against the following State Defendants: the State of Indiana; [name omitted], in his official capacity as Attorney General of the State of Indiana; and the Justices of the Indiana Supreme Court, in their official capacities [names omitted]. In addition, Plaintiff seeks damages from State Defendants [name omitted], Caseworker for the Marion County Office of Family and Children, in her individual capacity; and [name omitted], Supervisor for Marion County Office of Family and Children, in her individual capacity.

Plaintiff’s Complaint with respect to the above-cited Defendants alleges -- in 1,751 numbered paragraphs -- essentially the following:

(1) the State of Indiana has allegedly promulgated, and the Attorney General allegedly enforces, a body of juvenile law which is unconstitutional on its face and as applied to Plaintiff and the putative class because the very foundation of Indiana juvenile law is unsound. Am. Compl. 211-362, 628-1435; Counts 5-65. Defendants understand from the Complaint that most of the body of juvenile law is challenged because it is “progressive, liberal, Marxist, socialdemocrat” and the judiciary that applies the law suffers from the same philosophical biases. Id. 224-282. Plaintiff seeks an injunction preventing Defendants from enforcing fifty three (53) juvenile law provisions which deal with the following: juvenile court administration, juvenile court procedures, the reporting of child abuse and neglect, children in need or protective services, the termination of the parent-child relationship, juvenile records and the funding of child advocates and guardian ad litems.

(2) allegedly the State of Indiana or the Attorney General may initiate an unconstitutional termination of parental rights in the future and must be enjoined from doing so. Am. Compl. 1734-1744; Count 83.

(3) allegedly the Justices of the Indiana Supreme Court have published or caused to be published a fraudulent or unconstitutional Code of Judicial Conduct “because the Indiana Judicial Conduct Code does not apply to juvenile judges.” Am. Compl. 1534, 1541. Pursuant to the Declaratory Judgment Act, 457 U.S. 423   “http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=457&invol=423   (1982); Majors v. Engelbrecht, 149 F.3d 709, 711 (7^th Cir. 1998). As a matter of comity, Younger stands for the principle that a party to a state proceeding affecting important governmental interests must resolve the dispute in the state’s preferred tribunal because a transfer of adjudication from the original state forum to the federal forum for an independent resolution damages state interest significantly. see Nelson v. Murphy 44 F.3d 497, 501 (7^th Cir. 1995).

If the following three requirements are met, abstention by the federal court is proper: (1) are the judicial or quasi-judicial state proceedings ongoing; (2) do the proceedings implicate important state interests; (3) is there an adequate opportunity in the state proceedings to raise constitutional challenges. A federal plaintiff may, however, overcome the presumption of abstention if he or she alleges extraordinary circumstances such as bias or harassment which would otherwise weigh against abstention. Middlesex, 457 U.S. at 435; Majors, 149 F.3d at 711; see also Moore v. Sims, 442 U.S. 415, 423 (1979). For the purposes of dismissing all claims against the State Defendants, the Younger doctrine permits abstention from claims and suits involving injunctive relief, relief by way of a declaratory judgment and damages. Wright & Miller, Federal Practice & Procedure, § 4252.

Plaintiff’s claims against the State of Indiana, the Attorney General and the Indiana Supreme Court Justices for injunctive and declaratory relief clearly meet the three Younger abstention requirements. First, Brown is a party to ongoing proceedings in state juvenile court: FSSA v. Brown, [cause number omitted]. As Brown details in his dense complaint, the minor child was alleged to be a child in need of services (“CHINS”) and taken into custody under an order of the court pursuant to Ind. Code § 31-34-4-2. Brown challenges the constitutionality of most of the juvenile provisions implicated in the March 7, 2005 removal, March 9, 2005 filing of a CHINS petition and the subsequent unfolding of his case. Thus, the federal claims that attack the juvenile laws that have already been applied and may be applied to the CHINS case involving Brown’s minor son appear to be a method for challenging the ongoing proceedings in an alternative forum. Federal court abstention is appropriate for such attempts. The state court suit is ongoing, moreover, as the latest motion filed by Plaintiff in the state court case was Octover 24, 2005 which post-dates his filing this federal case.

Second, there can be no question but that the State of Indiana has an extensive interest in cases involving the welfare of children, whether the cases are to determine child custody or involve the reporting, investigation and resolution of child abuse and neglect cases. As the Court of Appeals stated in but one of many reviews of CHINS proceedings that it hears, “[O]ur legislature has enacted an interlocking statutory scheme governing CHINS and the involuntary termination of parental rights designed to protect the rights of parents in raising their children while allowing the State to effect its legitimate interest in protecting children from harm.” A.P. v. Porter County Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. App. 2000); see also Sills v. Irelan, 663 N.E.2d 1210, 1213 (Ind. App. 1996) (holding that the State has an important interest in placing restrictions upon custody orders entered in paternity cases which serve to protect children from situations which would endanger their physical health or significantly impair their emotional development). Abstention in cases involving state juvenile laws is proper. See Moore v. Sims, 442 U.S. at 435 (concluding that Younger abstention doctrine applies to a case challenging the constitutionality of state child abuse and neglect statutes); Brunken v. Lance, 807 F.2d 1325, 1330-1331 (7^th Cir. 1986) (acknowledging that Younger has been applied to the temporary removal of a child in a child-abuse context).

Third, Plaintiff has not alleged that the state proceedings do not afford him an adequate opportunity to raise the constitutional challenges, which inquiry is the essence of the third element of the Younger analysis. According to the Seventh Circuit, “[S]ubsequent judicial review is a sufficient opportunity.” Majors, 149 F.3d at 713. The two above-cited Indiana Court of Appeals decisions clearly demonstrate that the issues raised at trial in the juvenile court can be appealed to the Indiana Court of Appeals. Thus, there is no lack of forum for Brown to contest the alleged deprivations caused by the Indiana juvenile laws. Indeed, Brown has chosen not to take advantage of the opportunities afforded by the statutes to date; the pre-trial fact-finding hearing to which Brown is entitled following a denial of CHINS allegations still has not taken place [see Juvenile Court docket] while Brown removed the case to federal court after which the Honorable Judge [name omitted] in the Soutehrn District of Indiana remanded the case to state court. See State of Indiana, Division of Family & Children v. Brown, Cause no. 1:05-cv-1134.¹ Thus, the Court should consider the third Younger requirement fulfilled and the presumption for abstention established by State Defendants.

Moreover, State Defendants contend that Plaintiff has set forth no allegations to establish an exception to abstention, i.e., no extraordinary circumstances such as bias or harassment which weigh against abstention. The caselaw on establishing the Younger exception is clear in this Circuit: a mere allegation of bias or harassment is insufficient. Trust & Inv. Advisers, Inc. v. Hogsett, 43 F.3d 290, 297 (7^th Cir. 1994) (holding that the inquiry need not entail a full blown adjudication on the merits, but the facts must be sufficiently developed to allow the court to make a realistic assessment of whether the potential for bias is sufficient to warrant a federal court to step in to protect the plaintiff’s procedural due process rights); Majors, 14 F.3d at 714 (upholding trial court’s finding that mere allegations of bias are insufficient evidence of the extraordinary circumstance of bias that would excuse abstention).

Brown makes the assertion that the State is biased against him because he is a “minor attracted individual,” a class of individuals distinct from the sexually-deviant pedophile. However, there is no allegation that the State, on the basis of this alleged bias, sought to prosecute him out of animus. On the contrary, Plaintiff called attention to himself as a pedophile on national radio, putting in motion the chain of events that resulted in the temporary removal of his minor son. In the Complaint, Brown admits that on February 22, 2004 he responded to a syndicated, radio talk-show host’s offer of $1,000 for anyone who would identify himself, on-air, as a member of NAMBLA, the North American Man/Boy Love Association,² Am. Compl. 406-417. For the State to seek a temporary removal of a minor child after a declaration by the custodial father that he belongs to a national association of pedophiles cannot be construed as an act of egregious bias or harassment; it is, after all, the State’s interest to protect children from sexual exploitation. Indeed, Brown has a prior conviction for a sex-related offense: in 1994, following an FBI investigation, he pleaded guilty to one count of 18 U.S.C. § 2252(a), possession of child pornography, and served twenty seven (27) months in jail in addition to completing eighteen (18) months of specialized sex offender training, Am. Compl. 386-417.

Finally, the Supreme Court expressed this view in Moore v. Sims regarding the propriety and wisdom of abstention when a broad challenge is mounted by a plaintiff:

The breadth of a challenge to a complex state statutory scheme, such as a body of state juvenile law, has traditionally militated in favor of abstention, not against it. This is evident in a number of distinct but related lines of abstention cases which, although articulated in different ways, reflect the same sensitivity to the primary of the State in the interpretation of its own laws and the cost to our federal system of government inherent in federal-court interpretation and subsequent invalidation of parts of an integrated statutory framework.

Moore v. Sims, 442 U.S. at 427 [emphasis supplied]. Defendants urge the Court to adopt this approach and grant the Motion to Dismiss pursuant to the principles of Younger abstention.

B. The Eleventh Amendment and Sovereign Immunity Bar All Claims Against the State and State Entities and Official Capacity Claims for Damages.

The Eleventh Amendment constitutionally limits the type of suit that a citizen may bring against its own State. For the most part, the Eleventh amendment and the doctrine of sovereign immunity bar all private suits, including suits against a State by a citizen of the Stte being sued. Welch v. Texas Dept. of Highways, 483 U.S. 468, 472 (1987), Hans v. Louisiana, 134 U.S. 1 (1890).

It is not perfectly clear what type of suit Brown has brought against the State of Indiana, the Attorney General of the State of Indiana and the Honorable Justices of the Indiana Supreme Court. Defendants have scrutinized the 1,751 paragraphs of the Complaint and believe the injunctive and declaratory relief is more in the nature of a suit by a citizen against an entity of the state, without naming the state officials as defendants (although Brown names [the Attorney General] and the individual Justices) than in the nature of an official-capacity suit, in which the state officials are named. In this type of case, regardless of the relief sought, the Eleventh Amendment bars the suit, unless the state has waived its immunity or Congress has overridden it. Brunken v. Lance, 807 F.2d 1325, 1329 (7^th Cir. 1986). Insofar as Plaintiff has buried a damages claim against State Defendants which are entities or acting in their official capacities, suit is likewise barred. Federal suits against state officials in their official capacities are barred by the Eleventh Amendment. Gossmeyer v. McDonald, 128 F.3d 481, 487 (7^th Cir. 1997), Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7^th Cir. 2000). Accordingly, the claims against the State of Indiana, the Attorney General [name omitted] and the Honorable Justices of the Indiana Supreme Court must be dismissed pursuant to the Eleventh Amendment of the United States Constitution.

C. Plaintiff’s Claims Must be Dismissed for Lack of a Ripe, Justiciable Controversy.

Plaintiff’s request for declaratory judgment must fail, as such request is not ripe. Therefore, this Court lacks subject matter jurisdiction over Plaintiff’s claims, and this matter must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). The lack of a ripe controversy cannot support subject matter jurisdiction over a claim for declaratory relief. “The purpose of declaratory judgments are to ‘clarify[] and settl[e] the legal relations at issue’ and to ‘termination and afford relief from uncertainty, insecurity, and controversy giving rise to the proceeding.’” Tempo Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749 (7^th Cir. 1987) (refusing to hear declaratory judgment claim because it served no purpose in light of the substantive action.) “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). Under Article III of the United States Constitution, the judicial power of the United States extends only to actual cases and controversies. see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998); see also Sprint Spectrum L.P. v. City of Carmel, 361 F.3d 998, 1002 (7^th Cir. 2004) (noting that one element of a case or controversy is satisfying the ripeness doctrine, which is essentially a question of timing). In the instant matter, the underlying juvenile case is pending and the application of most of the allegedly unconstitutional statutes has not yet occurred. To date, with the exception of the temporary removal of his minor son, none of the perceived civil rights violations hypothesized by Plaintiff have occurred. Plaintiff’s Complaint fails to allege an actual deprivation of procedural or substantive rights; only the anticipation of violations by the potential application of the Indiana juvenile statutes. Therefore, a live controversy does not exist to provide this court with subject matter jurisdiction, and as a result this matter must be dismissed.

D. The Court Must Dismiss Claims for Plaintiff’s Failure to State a Claim for which Relief may be Granted, Fed. R. Civ. P. 12(b)(6).

As a threshold matter, insofar as Plaintiff has made a Section 1983 claim against the State of Indiana and/or the Attorney General of the State of Indiana, in his official capacity, and/or the Indiana Supreme Court, the Court must dismiss such claim pursuant to Federal Rule of Civil Procedure 12(b)(6); for failing to state a claim upon which relief may be granted.

Section 1983 of Title 42 of the United States Code reads, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, […]

42 U.S.C. § 1983, emphasis supplied.

The State of Indiana, the Attorney General of the State of Indiana and the Indiana Supreme Court are not “persons” within the meaning of Section 1983 and thus claims against them must be dismissed.

It appears from the Complaint that the Section 1983 damages claim are specifically made against State Defendants [MCOFC Supervisor] and [MCOFC Caseworker], in their individual capacities as Caseworker Supervisor and Caseworker for the MCOFC.

The nature of the civil rights violations allegedly committed by [MCOFC Supervisor and Caseworker], however, are not clearly established. Plaintiff generally alleges [they] conspired to allegedly “damage by deprivation of fundamanetal, or substantive, or procedural, or penumbra, right [sic].” Compl. 1634, Count 77. Elsewhere in the Complaint, Plaintiff generally states a deprivation of his First Amendment rights and the allegted right to parent freely, and State Defendants content that no allegations support a Section 1983 [claim] against them for these alleged civil rights violations. To the extent that Plaintiff presents a substantive due process violation as the basis for the Section 1983 claim, the claim must fail. Substantive due process should not be called upon when a specific constitutional provision protects the right allegedly infringed upon. United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (holding that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eight Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.); see also Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7^th Cir. 2000).

Plaintiff’s Complaint, does however, allege a Fourth Amendment violation. In paragraph 448 of the Amended Complaint, Plaintiff alleges the following against Defendant [MCOFC Caseworker]: “[B]y entering plaintiff’s residence under false pretenses, and as detailed later by filing a fraudulent report, the MCOFC Caseworker’s [sic] affected [sic] an unreasonable seizure of plaintiff’s son, in violation of the Fourth Amendment.” Am. Compl. 448. Plaintiff has named [defendant] in her individual capacity in the caption of the lawsuit, thus we presume he is stating a Section 1983 personal capacity claim against her for violating his Fourth Amendment rights.

In order to state a claim under Section 1983, a plaintiff must allege that the defendants deprived him of a right secured by the Constitution or laws of the United States, and that the defendants acted under color of state law. Starnes v. Capital Cities Media, Inc., 39 F.3d 1394, 1396 (7^th Cir. 1994). The first step in analyzing a § 1983 claim is to identify the specific constitutional right allegedly infringed. Brown appears to be alleging that [the defendant] violated his right to be free from unconstitutional seizures. To state a Fourth Amendment cause of action, Plaintiff must allege: (1) [the defendant’s] conduct constituted a “seizure” and (2) the seizure, if one occurred, was “unreasonable.” Kernats v. O’Sullivan, 35 F.3d 1171, 1175-1177 (7^th Cir. 1994).

Fourth Amendment rights are personal and may not be asserted vicariously by third parties. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Brown has not been the recipient of an allegedly unlawful seizure. see Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth. of the City of Pittsburgh, 382 F.3d 412, 422 (3^rd Cir. 2004) (“a personal right is necessary to the existence…of a right of action under § 1983.”). Plaintiff has failed to state a Fourth Amendment claim, thus any further analysis of Section 1983 liability is unnecessary and the claim against Defendant [name omitted] should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). In addition, Plaintiff appears to claim that [defendant’s] supervisor, [defendant MCOFC Supervisor], is liable under Section 1983 for the following conduct, which Defendants respectfully paraphrase for the Court: upon learning of the Plaintiff’s claim on a syndicated radio show, MCOFC< executives or management met and decided to seize plaintiff’s minor dependent without a warrant and then communicated, either directly or indirectly, this unconstitutional instruction to [defendant Supervisor] who [instructed defendant caseworker] to effect the seizure on March 7, 2005. am. Compl. 465-475.

It appears to be Brown’s contention that [defendant MCOFC Supervisor] incurred § 1983 liability because she approved of [the Caseworker’s] conduct, indeed, she communicated the directive to remove Plaintiff’s minor son after herself receiving it from her superiors. This claim is without merit. It is well settled that the doctrine of respondeat superior may not be employed to impose § 1983 liability on a supervisor for the conduct of a subordinate that violates a citizen’s constitutional rights. Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). Thus, the Section 1983 claim against Defendant [MCOFC Supervisor] must be dismissed for failure to state a claim for which relief may be granted. As discussed supra, the Section 1983 personal capacity claims against Defendants [MCOFC Caseworker and Supervisor] are without merit and must be dismissed for failure to state claim for which relief may be granted.

E. In the Alternative, State Defendants [MCOFC Supervisor and Caseworker] are Entitled to Qualified Immunity from Plaintiff’s Claims.

As state agency actors, Defendants [MCOFC Supervisor and Caseworker] are immune from liability unless their conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. Berman v. Young, 291 F.3d 976, 983 (7^th Cir. 2002). In other words, qualified immunity applies except where: (1) there has been a constitutional violation; and (2) the constitutional right at issue was clearly established at the time of the violation. Id. Courts have not hesitated to offer qualified immunity to government officials who remove children from their parent’s homes in order to protect them from suspected child abuse. See Landstrom v. Illinois Dep’t of Children & Family Serv., 892 F.2d 670, 674-78 (7^th Cir. 1990). Immunity would not be offered if removal of a child were “so severe and obviously wrong” that the state workers should have known they were violating a plaintiff’s rights. Id.

As discussed supra, the removal of Plaintiff’s minor son occurred upon Defendant [MCOFC Caseworker] and law enforcement officials learning that Plaintiff had publicly claimed to be a pedophile, Plaintiff was known to be a convicted sex offender and Plaintiff was currently living in a home with a minor child. Plaintiff invited State Defendant [MCOFC Caseworker] and law enforcement into the home, granted an interview in which he discussed pedophilia and his advocacy of the rights of minor-attracted individuals, and refused to allow law enforcement to lok at his home computer. The facts alleged in the Complaint do not support a finding of a ‘severe and obviously wrong’ removal. Moreover, in the cases in which qualified immunity is found to apply to caseworkers or social workers who effect temporary removals of children, the Seventh Circuit has stated that “[B]ecause the balance between a child’s liberty interest in familial relations and a state’s interest in protecting the child is nebulous at best, social workers and other state actors who cause a child’s removal are entitled to qualified immunity because the alleged constitutional violation will rarely - if ever - be clearly established.” See Brokaw v. Mercer County, 235 F.3d 1000 at 1023 (7^th Cir. 2000); Berman, 291 F.3d at 984 (7^th Cir. 2002).

III. Conclusion

Plaintiff’s claims against State Defendants must be dismissed for lack of subject matter jurisdiction pursuant to the doctrine of abstention articulated in Younger v. Harris, 401 U.S. 37 (1971), the Eleventh Amendment of the United States Constitution, standing issues inherent to Article III of the United States Constitution and failure to state a claim for which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6).

State Defendants respectfully move the Court to dismiss Plaintiff’s Complaint in its entirety with prejudice and grant all other just and proper relief.

Respectfully submitted,

[name omitted]
Attorney General of Indiana

[CERTIFICATE OF SERVICE OMITTED]