United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
Stuart Flom, April Flom, Rachel Flom, Rebecca Flom, and RJF,
a minor, filed a complaint in this action on July 23, 2018,
alleging that the defendants violated their civil rights. ECF
No. 1. The plaintiffs are representing themselves, and all
five of them have signed the complaint. As defendants, the
complaint names Outagamie County, the county's Department
of Health and Human Services (HHS), and the Probation and
Parole division within the Wisconsin Department of
Corrections (DOC). The complaint seeks damages from the
county and those entities for their alleged roles in the
removal of Rachel, Rebecca, and RJF from the custody of their
parents Stuart and April during 2012 and 2013. The plaintiffs
also seek to proceed in forma pauperis. ECF No. 2.
The Court has reviewed the affidavit submitted in support of
the motion and concludes that the plaintiffs lack sufficient
income and/or assets to pay the filing fee. Their motion to
proceed in forma pauperis will therefore be granted.
courts are permitted to screen every complaint, regardless of
a plaintiff's fee status. 28 U.S.C. § 1915(e)(2)(B);
Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir.
2003). Prompt screening of a complaint prior to service,
especially when the plaintiff is pro se, serves the
important function of protecting putative defendants from
unnecessary fear and anxiety and the expense of hiring an
attorney in order to respond to patently frivolous claims
brought either out of ignorance of the law or with intent to
embarrass or harass. In screening a complaint, the court must
determine whether it complies with the Federal Rules of Civil
Procedure and states at least plausible claims for which
relief may be granted.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts, and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. The court is obliged to give
the plaintiff's pro se allegations, however
inartfully pleaded, a liberal construction. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
this year, the plaintiffs filed an action in this court
against Outagamie County, the County's HHS Department
named in this suit, the DOC's Probation and Parole
division named in this suit, additional county departments,
and several individuals. Flom v. Outagamie Cty., No.
18-C-261 (E.D. Wis.). That case involved the same custody
dispute at issue in this case, and the court initially
dismissed the plaintiffs' complaint for failure to state
a claim but granted them leave to amend. Screening Order,
Flom, No. 18-C-261 (E.D. Wis. Mar. 12, 2018), ECF
No. 4. After the plaintiffs filed an amended complaint, the
court once again dismissed it for failing to state a claim.
Decision & Order Screening Am. Compl., Flom, No.
18-C-261 (E.D. Wis. Apr. 20, 2018), ECF No. 6.
regard to Outagamie County and the other entities, the order
dismissing the amended complaint observed that, under
Monell v. Department of Social Services of the City of
New York, a municipality may be liable under 42 U.S.C.
§ 1983 only “when execution of a government's
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” 436 U.S. 658, 694 (1978).
Because the amended complaint did not identify any policy
that allegedly caused the asserted constitutional
deprivations by Outagamie County or the other entities, the
court concluded that the amended complaint failed to state a
claim against those defendants. Order Screening Am. Compl. at
the complaint against Outagamie County, its HHS Department,
and the DOC's Probation and Parole division cures none of
the defects that afflicted the plaintiffs' earlier
complaints. The complaint alleges that the children were
removed from the custody of Stuart and April by CPS,
apparently a division of the county's HHS Department, in
2012 without a warrant and based on unproven allegations of
abuse and neglect. Subsequently, the complaint alleges, CPS
and the DOC's Probation and Parole division worked
together to keep the family separate, making false statements
to the children, failing to abide by an August 2012 contract
meant to result in family reunification, and arresting the
parents on the day they were supposed to be reunited with the
children in February 2013. Ultimately, the family was
reunited by order of Judge Gage in April 2013.
again, nothing about these allegations suggests that the
claimed constitutional deprivations occurred as a result of a
policy maintained by the County or its HHS Department. Under
Monell, a claim may arise
(1) through an express policy that, when enforced, causes a
constitutional deprivation; (2) through a “wide-spread
practice” that although not authorized by written law
and express policy, is so permanent and well-settled as to
constitute a “custom or usage” with the force of
law; or (3) through an allegation that the constitutional
injury was caused by a person with “final decision
Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005)
(citing McTigue v. City of Chi., 60 F.3d 381, 382
(7th Cir. 1995)). Although the complaint alleges that various
unnamed, individual actors improperly separated the family
and prolonged the separation, the complaint does not in any
way allege that a county-wide or department-wide policy
caused the alleged deprivations. Furthermore, to the extent
that the plaintiffs seek to bring a federal claim against the
Wisconsin DOC for the actions of its Probation and Parole
division, the Eleventh Amendment prohibits this court from
exercising subject matter jurisdiction over a claim for
monetary damages against a state agency. See
Ind. Prot. & Advocacy Servs. v. Ind. Family &
Soc. Servs. Admin, 603 F.3d 365, 370 (7th Cir. 2010).
Consequently, the complaint will be dismissed.
IS THEREFORE ORDERED that the motion to proceed
in forma pauperis (ECF No. 2) is
GRANTED and the complaint is
DISMISSED for failure to state a claim upon
which relief can be ...