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 and SAINT A, 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). Upon 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
5, 2018, this Court entered an order allowing Gamblins one
additional opportunity to amend her complaint to cure the
defects that both Magistrate Joseph and this Court identified
for her. (Docket #10). On July 26, 2018, the Court received
Gamblins' second amended complaint. (Docket #12). As with
her previous complaints, Gamblins' second amended
complaint does not state a claim that can be remedied by this
alleges that Milwaukee Child Protective Services
(“CPS”) and Saint A violated her constitutional
rights (she no longer names as defendants the individuals who
work for those entities). (Docket #12 at 2). She repeats the
story she told in her earlier pleadings: officers of the
defendants visited her home unannounced and removed her
children. Id. This time, she explains that her
children were removed because “the house that I was
staying in became unlivable for me and my kids.”
Id. She believes CPS should help her improve her
living situation, not take her kids from her. Id. at
2-3. She also states that her two oldest children have been
returned to her care, but her three youngest children have
not been returned. Id. at 3.
Court explained in its July 5 order that Gamblins'
allegations arguably touch on her Fourteenth Amendment right
to “familial integrity.” Xiong v.
Wagner, 700 F.3d 282, 291 (7th Cir. 2012). To state a
claim for violation of that right, Gamblins must have alleged
that her children were removed from her care without definite
and articulable evidence giving rise to a reasonable
suspicion of danger. Id. Gamblins has not alleged
this; instead, she alleges that her children were removed
because the home where she was residing with them was
unlivable. Further, Gamblins no longer names the individual
caseworkers as defendants, and they are the only people from
whom she could get relief. As the Court already explained,
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 cannot bring a claim
against Saint A because, even if it were considered a state
actor, Gamblins has not alleged that a policy or practice of
Saint A, as opposed to the individual misconduct of its
caseworkers, caused her constitutional deprivation. See
Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d
917, 927 (7th Cir. 2004). Gamblins' allegations continue
to fall short in these respects, and therefore a Fourteenth
Amendment claim cannot proceed.
the Court also explained in its July 5 order that even if her
children had a claim under the Fourth Amendment for being
unreasonably removed from their home, see Xiong, 700
F.3d at 289, Gamblins cannot bring those claims on their
behalves. 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 again named her children as plaintiffs, but they are
not properly part of this case.
Court is left, again, with the impression that the relief
Gamblins truly seeks is the return of her children. She
cannot pursue that relief here. The proper avenue for that
relief is an appeal through the CPS appeal process.
See 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 hearing).
Gamblins has not stated a claim on which relief can be
granted, this case must be dismissed. 28 U.S.C. §
1915(e)(2)(B). Having already been given two opportunities to
amend her complaint, Gamblins will not be granted another.
The dismissal will be with prejudice.
IT IS ORDERED that this action be and the
same is ...