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, SAINT A, ANDERSON IVES, ANDREA L. DIAMOND, and SHERRY GEORGE, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE
February 20, 2018, the plaintiff, Cassandra Gamblins
(“Gamblins”), filed a pro se complaint
and a petition to proceed in forma pauperis. (Docket
#1 and #2). The case was initially assigned to Magistrate
Judge Nancy Joseph, who granted Gamblins leave to proceed
in forma pauperis. (Docket #5). In screening the
complaint pursuant to 28 U.S.C. § 1915(e), Magistrate
Joseph determined that it failed to state a claim under
federal law, but allowed Gamblins the opportunity to file an
amended complaint making clear the federal claim she intended
to allege. Id. On April 5, 2018, Gamblins filed an
amended complaint. (Docket #6). Magistrate Joseph determined
that it, too, failed to state a claim under federal law and
therefore should be dismissed. (Docket #8). Because not all
parties have had the opportunity to consent to magistrate
judge jurisdiction, Magistrate Joseph prepared a
recommendation for dismissal and the case was reassigned to
this branch of the Court for consideration of that
recommendation. Id. Gamblins then filed another
amended complaint, (Docket #9), but she did not file an
objection to Magistrate Joseph's
noted previously by Magistrate Joseph, notwithstanding the
payment of any filing fee, the Court must dismiss a complaint
filed in forma pauperis if it raises claims that are
“frivolous or malicious, ” that fail to state a
claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B). The Court has reviewed de
novo Gamblins' amended complaint, Magistrate
Joseph's recommendation for dismissal, and Gamblins'
proposed second amended complaint (which the Court liberally
construes as an objection to the magistrate's
recommendation). The Court concurs with Magistrate Joseph
that Gamblins has not sufficiently pled a federal claim, but
the Court will allow Gamblins one final opportunity to cure
that defect, with the benefit of further instruction provided
alleges that Anderson Ives (“Ives”), Andrea L.
Diamond (“Diamond”), and Sherry George
(“George”), who work for either CPS or Saint A,
violated her constitutional rights. (Docket #6 at 2). On
January 10, 2018, Ives visited Gamblins' home
unannounced, and without a warrant, and performed a search of
the home that resulted in Ives removing Gamblins'
children. Id. On various dates between January and
April 2018, Gamblins met with Diamond and George, who appear
to have had some role in keeping Gamblins' children from
her or placing them in foster care. Id. at 2-3.
Gamblins claims that Diamond put her and her children through
“so much stress, ” and George suggested Gamblins
get a mental evaluation that Gamblins does not believe was
necessary. Gamblins does not provide many other coherent
details about Diamond's or George's role in this
incident. Id. Finally, Gamblins requests that the
Court return her children to her, award damages of $30, 000,
and “clear [her] name of what happen[ed].”
Id. at 4.
Magistrate Joseph explains in her recommendation,
Gamblins' complaint appears to be, at least primarily, an
attempt to appeal the decision by Milwaukee Child Protective
Services (“CPS”) to remove her children from her
home. (Docket #8 at 2-3). If the relief Gamblins seeks is the
return of her children, she cannot pursue her claim here. The
proper avenue for that relief is, as Magistrate Joseph
explained, an appeal through the CPS appeal process.
Id. at 3; see also Wis. Stat.
§48.981(3)(c)5p (explaining that “[a] person who
is the subject of a final determination … that the
person has abused or neglected a child has the right to a
contested case hearing on that determination under ch.
227” and detailing the procedure for requesting such a
that is not necessarily the end of the matter. Gamblins'
allegations also arguably touch on the constitutional rights
of her and her children. As to Gamblins' own
constitutional rights as the mother of removed children, the
Fourteenth Amendment “includes the right to associate
with relatives, ” meaning that Gamblins has a
substantive due process right to “familial
integrity.” Xiong v. Wagner, 700 F.3d 282, 291
(7th Cir. 2012). But the right under the Fourteenth Amendment
to keep one's family together is not absolute. 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.
(quotation removed). State agency caseworkers achieve this
balance when 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 custody.” Id. (quotation and
internal marks omitted). Therefore, Gamblins could state a
Fourteenth Amendment claim (for damages, for not for the
return of her children) if she alleges that the defendant
caseworkers removed her children without definite and
articulable evidence giving rise to a reasonable suspicion of
danger. Further, only those caseworkers who were personally
involved in the removal are proper defendants. See Palmer
v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003)
(Individual liability under Section 1983 requires personal
involvement in the alleged constitutional deprivation.).
Gamblins cannot bring this claim against CPS because it is a
state agency immune from suit for damages. See Ryan v.
Ill. Dep't of Children & Family Servs., 185 F.3d
751, 758 (7th Cir. 1999). Gamblins' allegations as
currently pled fall short in these respects, and therefore a
Fourteenth Amendment claim cannot proceed at this stage.
the rights of Gamblins' children, “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.” Xiong, 700 F.3d at
289. Removing a child from his home and family 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 officers have reason to
believe that life or limb is in immediate jeopardy.”
Id. at 289-90 (quotation omitted). Gamblins'
children may be able to state Fourth Amendment claims for
their unreasonable seizure, but as Magistrate Joseph
explained, Gamblins cannot bring those claims on behalf of
her children. An attorney would have to file actions on
behalf of the children. See Foster v. Bd. of Educ. of
City of Chicago, 611 Fed.Appx. 874, 877 (7th Cir. 2015)
(non-lawyer parent cannot represent her minor child).
Gamblins' amended complaint fails to state a viable claim
for relief, the Court must strike the amended complaint. The
Court will afford Gamblins one additional opportunity to
submit an amended complaint correcting the above-described
defects. If Gamblins wants to proceed on a Fourteenth
Amendment claim, she must file an amended complaint within 14
days of the entry of this Order. Failure to file an amended
complaint within this time period will result in dismissal of
this action. Gamblins is further advised that a successful
complaint alleges “the who, what, when, where, and how:
the first paragraph of any newspaper story.” See
DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.
1990). If an amended complaint is received, it will be
screened by the Court pursuant to 28 U.S.C. §
amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that,
in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
see also Pintado v. Miami-Dade Housing Agency, 501
F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's averments against his
adversary.'”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463
F.3d 1210, 1215 (11th Cir. 2006)).
the Court reiterates the instruction given above and by
Magistrate Joseph: If the relief Gamblins seeks is the return
of her children, this Court is not the proper place for her
claim. If that is what she wants, Gamblins should submit a
notice of voluntary dismissal of this case and pursue an
appeal of removal through the Wisconsin CPS appeal process.
IT IS ORDERED that Magistrate Judge Nancy
Joseph's report and recommendation (Docket #8) be and the
same is hereby ADOPTED in part as described
IS FURTHER ORDERED that Plaintiff's amended
complaint (Docket #6) be and the same is hereby
IS FURTHER ORDERED that Plaintiff shall file an
amended complaint on or before fourteen (14) ...