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Bradley v. Sabree

United States District Court, E.D. Wisconsin

March 18, 2016



HON. PAMELA PEPPER United States District Judge

Plaintiff Elouise Bradley, representing herself, filed a civil rights complaint under 42 U.S.C. §1983, asserting claims arising under federal law against defendants Jennifer Sabree, Jane Abshire, Rebecca McFadden, and Kari Kerber, [1] who are employees of the Wisconsin Department of Children and Families (the “DCF Defendants”), and Robin Raber and Ginger King, who are employees of Lutheran Social Services of Wisconsin and Upper Michigan (the “Non-DCF Defendants”). Dkt. No. 1. The allegations in the complaint relate to the DCF’s administrative actions that resulted in the closure of the plaintiff’s daycare business and the surrender and/or revocation of her child care license in 2012.

This is the second federal case in which the plaintiff has sued defendants Sabree, Abshire, McFadden, Raber and King, and her third federal case related to the DCF’s actions. For the reasons explained in this order, the court will grant the DCF Defendants’ motion to dismiss, because the plaintiff’s claims against defendants Sabree, Abshire and McFadden are barred by claim preclusion, and because the plaintiff failed to state a claim against any of the DCF Defendants. For the same reasons, the court will dismiss defendants King and Raber (who, it appears, have not yet been served), pursuant to 28 U.S.C. §1915(e)(2). The court will deny as moot the plaintiff’s motion for a hearing and her motions for summary judgment.


A. Allegations of the Complaint The plaintiff ran a daycare center at the times relating to the complaint. She states that around April 17, 2012, business was slow, and that she asked defendant Abshire (who apparently worked at the Department of Children and Families) to change her hours, so that she could work outside the home and take some classes. Dkt. No. 1 at 3.

The plaintiff alleges that in May 2012, “the defendant” (she does not say which one) e-mailed her about some classes that the plaintiff might be interested in. As a result, on May 19, 2012, the plaintiff received her first certificate from “4-C-Community Child Care, Inc.” [likely Community Coordinated Child Care, Inc., also known as “4-C, ” an advocacy and support service for child care in several Milwaukee counties] for completing a seven-hour class in continuing education. Id. On June 28, 2012, she took more classes on child abuse and child neglect. Id.

The plaintiff alleges that, around 7:15 in the morning on July 24, 2012, defendants Abshire and Jennifer Sabree (who also worked for the Department of Children and Families) visited her home in Milwaukee at 2430 W. Finn Place, where the plaintiff operated the daycare business. Id. at 2. She alleges that there was no reason for Sabree and Abshire to visit her so early, because the center was on summer break, there were no children present, and the plaintiff was doing remodeling work with assistance from her children. Id. The plaintiff claims that defendant Sabree began taking pictures of the center. Id. According to the plaintiff, defendant Sabree also threatened to revoke the plaintiff’s child care license if the plaintiff did not surrender it. Id. The plaintiff alleges that her own child, J.P., gave the plaintiff’s license to defendant Sabree, in the hopes that Sabree and Abshire would leave. Id. She alleges that defendants Sabree and Abshire subsequently called “C.P.S. [Wisconsin Child Protective Services] saying I surrender my license because of child abuse and neglect.” Id. at 3.

The plaintiff also alleges that on this same date, defendant Abshire contacted Community Coordinated Child Care, Inc. and informed them that the plaintiff’s child care center was closed. Id. The plaintiff alleges that as a result of this, she could not continue taking classes at 4-C. She alleges that Sabree and Abshire changed her profile and “unregulated” her information, and that they had been accusing her of running an illegal daycare since 2003-2012. Id. at 3-4.

The complaint goes on to allege that the following day-July 25, 2012, defendant Rebecca McFadden from the Bureau of Child Welfare visited her home “to tell about I was running an illegal daycare and I needed to be license.” Id. at 4. She further alleges that on July 30, 2012 and August 23, 2012, “CPS try to accuse [me] of child abuse and child neglect when CPS interview my 14 year old son without my permission around June 2012. While he was in detention for P.O. violation.” Id. She does not allege any facts about how, if at all, defendant McFadden’s conduct related to the CPS investigation. Id. She alleges only that McFadden “knew something” was wrong with her “CPS report, ” but that McFadden did not tell Sabree that the plaintiff had not abused her son. Id.

The allegations the plaintiff brings against defendant Kari Kerber, also a Bureau of Child Welfare employee, are somewhat less clear. The plaintiff alleges that in March of 2012, someone called the CPS hotline and stated that the plaintiff was neglecting her son, and that he could not get into her house. Id. at 5. The plaintiff states that the “department” failed to follow up on this allegation until the year 2014. Id. She indicates that around June of 2012, her son “was told” (she does not say by whom) to leave the plaintiff’s home and return to his birth mother (the plaintiff indicates that her son is adopted). Id. She alleges that she told defendant Kerber that the “department” never had followed up with “my March 2012 complaint from someone who” knew defendant Sabree. Id. She states that her daycare was closed “from the statement that my son told CPS without letting me know.” Id.

The plaintiff also makes somewhat confusing claims against Non-DCF Defendants Raber and King (who worked for Lutheran Social Services). Id. She alleges that after her foster care license was revoked in 2004 on the grounds of child abuse and neglect, she requested a hearing, and won her case. Id. According to the complaint, “Judge Kenneth D. Duren ordered the defendants to give me a temporary foster care license so I came adoption L.A. age 2.” Id. She claims that, after defendant Sabree wrongly closed her daycare center (based on what she alleges was false information that she could not provide food and shelter for L.A.), defendant Raber “left my case unreversed and I being accuse of child abuse and child neglect since 2004.” Id. at 5-6. She alleges that defendants Raber and King violated her “Federal Right to Privacy” by “assisting in the use of information known to be false in order to close down” the plaintiff’s child care business. Id. at 6. Beyond that, the complaint contains no further allegations explaining how the Non-DCF Defendants’ conduct relates to the closure of her daycare business.

Invoking 42 U.S.C. §§1983 and 1985, the plaintiff claims that the defendants violated her rights under the “Federal Right to Privacy Act, ” the Child Abuse Prevention and Treatment Act, the 4th and 14th Amendments, and the Due Process Clause. Id.

B. Procedural History

In her first federal case relating to the closure of her daycare operation, the plaintiff sued the Wisconsin Department of Children and Families. Bradley v. Wis. Dep’t of Children & Families, No. 12-cv-1244 (E.D. Wis.) (“Bradley I”). That case was assigned to Judge Randa. Judge Randa dismissed the plaintiff’s complaint for lack of subject matter jurisdiction, because he found that the DCF was entitled to sovereign immunity. Bradley v. Wis. Dep’t of Children & Families, 528 F. App’x 680, 681 (7th Cir. 2013). The Seventh Circuit affirmed Judge Randa’s dismissal order on different grounds, holding that the DCF was not a “person” that could be sued under §1983. Id.

The plaintiff filed her second case against most of the same defendants she named in this case-defendants Sabree, Abshire, McFadden, King, and Raber. Bradley v. Sabree, No. 14-cv-429 (E.D. Wis.) (“Bradley II”). That case was assigned to Judge Stadtmueller, who dismissed the plaintiff’s complaint. As to defendants Sabree, Abshire, and McFadden, Judge Stadtmueller held that (1) “any challenge to the agency’s administrative action must be brought in accordance with Chapter 227’s provisions, ” and (2) the plaintiff failed to state a plausible claim for relief. Bradley II, Order at 4, Aug. 12, 2014, Dkt. No. 23. Judge Stadtmueller dismissed the plaintiff’s claims against defendants King and Raber because he determined that the complaint failed to state any claim against them. Id. at 5-6. The Seventh Circuit affirmed Judge Stadtmueller’s dismissal order. Bradley v. Sabree, 594 F. App’x 881 (7th Cir. 2015). The United States Supreme Court denied her petition for a writ of certiorari. Bradley v. Sabree, No. 15-124, 136 S.Ct. 239 (Oct. 5, 2015), and her petition for rehearing. Bradley v. Sabree, No. 15-124, 136 S.Ct. 528 (Nov. 16, 2015).

Four days later, on November 20, 2015, the plaintiff filed the current complaint. Defendants Sabree, Abshire, McFadden, and Kerber (the DCF Defendants) waived service. It does not appear that defendants King and Raber (the Non-DCF Defendants) have yet received service. Before the DCF Defendants responded to the complaint, the plaintiff filed a Motion for Hearing and Order to Show Cause, in which she listed the various past forums and cases in which she has sought to challenge the agency’s revocation of her daycare license, including Bradley I and Bradley II. Dkt. No. 12. In that motion, the plaintiff explained that she “is bringing [her] case back to this court For Judge Pamela Pepper to resolved some legal issues with DCF, BMCW, DHFS and the defendant(s) to rule on the applicability of the agency’s policies and procedures . . . .” Id. at 1.

The DCF Defendants have moved to dismiss the plaintiff’s complaint, arguing that (1) her claims are barred by claim preclusion and issue preclusion, (2) her allegations fail to meet the pleading standards set forth in Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure, (3) this court lacks subject matter jurisdiction over a civil action challenging a decision issued by a Wisconsin administrative agency, and (4) her claims against the DCF Defendants are barred by qualified immunity. Dkt. No. 14.

Following the DCF Defendants’ motion to dismiss, the plaintiff filed a motion for summary judgment (Dkt No. 15), and an amended motion for summary judgment (Dkt. No. 17). The parties’ motions are ripe for review.


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