Hatch v. Indiana Department of Child Services

          OPINION AND ORDER

          THERESA L. SPRINGMANN, CHIEF JUDGE.

         DeAngelo L. Hatch, a Plaintiff proceeding pro se, filed a Complaint [ECF No. 1] against Defendants, the Indiana Department of Child Services (“IDCS”), Chrystal Graham, Jennifer Fletcher, and Louise Dietzer. He also filed a Motion for Leave to Proceed in forma pauperis [ECF No. 2]. On August 28, 2017, the Court denied his Motion and dismissed his Complaint without prejudice for failure to state a claim [ECF No. 3]. The Plaintiff filed an Amended Complaint on October 2, 2017 [ECF No. 4], this time naming only IDCS, Fletcher, and Graham as Defendants, and a new Motion for Leave to Proceed in forma pauperis [ECF No. 5]. For the reasons set forth below, the Plaintiff's Motion is Granted.

         DISCUSSION

         Ordinarily, a plaintiff must pay a statutory filing fee to bring an action in federal court. 28 U.S.C. § 1914(a). However, the federal in forma pauperis (IFP) statute, 28 U.S.C. § 1915, provides indigent litigants an opportunity for meaningful access to the federal courts despite their inability to pay the costs and fees associated with that access. See Neitzke v. Williams, 490 U.S. 319 (1989). To authorize a litigant to proceed IFP, a court must make two determinations: first, whether the litigant is unable to pay the costs of commencing the action, § 1915(a)(1); and second, whether the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief, § 1915(e)(2)(B).

         Under the first inquiry, an indigent party may commence an action in federal court, without prepayment of costs and fees, upon submission of an affidavit asserting an inability “to pay such fees or give security therefor.” Id. § 1915(a). Here, the Plaintiff's Motion establishes that he is unable to prepay the filing fee.

         The inquiry does not end there, however. In assessing whether a plaintiff may proceed IFP, a court must look to the sufficiency of the complaint to determine whether it can be construed as stating a claim for which relief can be granted or seeks monetary relief against a defendant who is immune from such relief. Id. § 1915(e)(2)(B). District courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the defendants and must dismiss the complaint if it fails to state a claim. Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999). Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1018, 1027 (7th Cir. 2013).

         To state a claim under the federal notice pleading standards, a complaint must set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Factual allegations are accepted as true and need only give “fair notice of what the . . . claim is and the grounds upon which it rests.” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         However, a plaintiff's allegations must show that his entitlement to relief is plausible, rather than merely speculative. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).

         The Plaintiff has alleged several causes of action against the Defendants, which include violations of the Fifth, Sixth, and Fourteenth Amendments, as well as 42 U.S.C. § 1983. The Plaintiff alleges that the Defendants violated his Fifth Amendment rights by attempting to compel him to be a witness against himself by “regularly ordering [him] to cooperate with The Department of Child Services and trying to force [him] to use services [he] [does] not need.” (Compl., ECF No. 4 ¶ 5.) The Plaintiff alleges that the Defendants violated his Sixth Amendment rights by using hearsay evidence gathered from his daughter and that without this hearsay evidence, the Defendants would not have successfully petitioned the Indiana state court to remove his daughter from his custody. The Plaintiff alleges that the Defendants violated his Fourteenth Amendment rights to “custody, care, and management of [his] daughter, ” “to rear [his] child without state interference, ” and to due process of law.

         The Plaintiff seeks only injunctive relief in the form of the immediate return of his daughter to his custody. Thus, the Court notes that, because the Plaintiff does not seek monetary damages, IDCS may not invoke sovereign immunity under the Eleventh Amendment. See Brunken v. Lance, 807 F.2d 1325, 1329-30 (7th Cir. 1986).

         A. Fifth Amendment Claim

         The Fifth Amendment provides in relevant part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V. The Plaintiff alleges that the Defendants attempted to force him to “cooperate” with them and to “use services [he] [does] not need.” (ECF No. 4 ¶ 5.) However, the Fifth Amendment protects against compelled testimony “in any criminal case.” Because the Defendants did not compel the Plaintiff to testify against himself in a criminal case, the Plaintiff has failed to state a claim on which relief can be granted under the Fifth Amendment.

         B. Sixth Amendment Claim

         The Sixth Amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend. VI. The Plaintiff alleges that the Defendants used hearsay evidence gathered from his daughter. Specifically, his daughter reported that she had seen the Plaintiff sell marijuana and did not feel safe at his house. (ECF No. 4-1 ¶ 3.) This is not hearsay evidence for multiple reasons, including that the Plaintiff's daughter was not reporting the statement of a third party. See Fed. R. Evid. 801. Moreover, as with the Fifth Amendment, the Sixth Amendment is applicable only “[i]n all criminal prosecutions.” ...