United States District Court, E.D. Wisconsin
CASSANDRA GAMBLINS on behalf of her minor children AGW, AGG, GWJ, CAG, and KGT, Plaintiff,
MILWAUKEE CHILD PROTECTIVE SERVICES et al., Defendants.
REPORT AND RECOMMENDATION ON SCREENING OF
JOSEPH UNITED STATES MAGISTRATE JUDGE.
Gamblins filed a pro se complaint against Milwaukee
Child Protective Services (“Milwaukee CPS”),
Saint A, and several employees of Milwaukee CPS. (Docket #
1.) On March 19, 2018, I granted Gamblins' motion to
proceed in forma pauperis and allowed her to file an
amended complaint. (Docket # 5.) Because the defendants have
not yet appeared and had an opportunity to consent or refuse
magistrate judge jurisdiction, I issue a report and
recommendation regarding the screening of Gamblins'
complaint. See Coleman v. Labor and Industry Review
Commission, 860 F.3d 461(7th Cir. 2017). For the reasons
stated below, I recommend that Gamblins' amended
complaint be dismissed.
I granted Gamblins' motion to proceed in forma
pauperis, I now must determine that the action is
neither frivolous nor malicious, does not fail to state a
claim on which relief may be granted, or does not seek money
damages against a defendant immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i)-(iii). An action is frivolous
if it is clear that the legal theory or the facts alleged are
baseless or irrational. Neitzke, 490 U.S. at 324;
Denton v. Hernandez, 504 U.S. 25, 31 (1992).
Dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim are to be reviewed based on the
standards set for dismissals under Federal Rule of Civil
Procedure Rule 12(b)(6). Dewalt v. Carter, 224 F.3d
607, 611-12 (7th Cir. 2000). In evaluating whether a
plaintiff's complaint fails to state a claim, a court
must take the plaintiff's factual allegations as true and
draw all reasonable inferences in his favor. Id. at
612. Under Federal Rule of Civil Procedure 8(a)(2), an action
is considered to state a claim if, at a minimum, it includes
a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009).
proceed under 42 U.S.C. § 1983, a plaintiff must allege
that: 1) he was deprived of a right secured by the
Constitution or laws of the United States; and 2) the
defendant was acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). I will
give a pro se plaintiff's allegations,
“however inartfully pleaded, ” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
alleges that employees of Milwaukee CPS arrived at her home
and “took” her kids. (Am. Compl. at 2, Docket #
6.) She alleges that the Milwaukee CPS searched her home
without a warrant. (Id.) Gamblins does not explain
why her children were taken by Milwaukee CPS. She also
alleges that her children are dealing with high levels of
stress from being separated from her. (Am. Compl. at 2-4.) In
her request for relief, Gamblins is seeking to have
defendants “clear [her] name of what happen[ed] on
[her] record. (Am. Compl. at 4.) Further, Gamblins is
requesting that her children be returned to her home.
that Gamblins' amended complaint is neither frivolous nor
malicious. Still, even liberally construing the complaint, I
do not find that Gamblins makes out a federal claim. It seems
that Gamblins is seeking to appeal Milwaukee CPS'
decision to remove her children. However, Wisconsin has a
Child Protective Service Appeal Process separate from
federal court. Unlike state courts, federal courts are of
limited jurisdiction and can “only exercise
jurisdiction where it is specifically authorized by federal
statute.” Teamsters Nat. Automotive Transporters
Industry Negotiating Committee v. Troha, 328 F.3d 325,
327 (7th Cir. 2003).
Gamblins amended complaint appears to include several
employees of Milwaukee CPS. The Supreme Court has stated that
there is no 42 U.S.C. § 1983 employer liability based on
respondeat superior. Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 691
(1978). Moreover, Gamblins asserts that she is acting on
behalf of her minor children, AGW, AGG, GWJ, CAG, and KGT.
However, Gamblins does not claim to be a lawyer. A non-lawyer
parent may not represent her child in court. See Foster
v. Bd. of Educ. of City of Chicago, 611 Fed.Appx. 874,
877 (7th Cir. 2015) (“And we have repeatedly held that
the rule prohibiting a nonlawyer from representing another
person extends to a parent attempting to represent her minor
child pro se.”). Finally, Gamblins may wish to consult
with the Milwaukee Justice Center at the Milwaukee County
THEREFORE, IT IS RECOMMENDED that Gamblins'
complaint be DISMISSED.
attention is directed to General L.R. 72(c), 28 U.S.C. §
636(b)(1)(B) and Federal Rules of Criminal Procedure 59(b),
or Federal Rules of Civil Procedure 72(b) if applicable,
whereby written objections to any recommendation or order
herein, or part thereof, may be filed within fourteen days of
the date of service of this recommendation or order.
Objections are to be filed in accordance with the Eastern
District of Wisconsin's electronic case filing
procedures. Courtesy paper copies of any objections shall be
sent directly to the chambers of the district judge assigned
to the case. Failure to file a timely objection with the
district court shall result in a waiver of a party's
right to appeal. If no response or reply will be filed,
please notify the Court in writing.
 Child Protective Services Appeal
Process, https://dcf.wisconsin.gov/cps/appeal (last visited