United States District Court, D. Minnesota
JILL CHARNESKY, Individually and as Mother and Next Friend of [B.C., a Minor and Disabled Individual, Plaintiff,
TONY LOUREY,  in his Official Capacity of Commissioner of the Minnesota Department of Human Services; NIKKI FARAGO,  in her Official Capacity as Assistant Commissioner for Children and Family Services for DHS; JAMIE SORENSON, in his Official Capacity of Director of Child Safety and Permanency Division of CPS for DHS; HEIDI WELSH, Individually and in her Official Capacity as Olmsted County Administrator; PAUL FLEISSNER, Individually and in his Official Capacity as Deputy County Administrator of Olmsted County Health, Housing and Human Services; SARAH OAKES, Individually and in her Official Capacity as Director of Health, Housing And Human Services for Olmsted County; EMILY COLBENSON, in her Official Capacity as Director Of Adult and Family Services in Olmsted County; AMY SHILLIABEER, Individually and in her Official Capacity as Director of Child and Family Services; JESSE STRATTON, Individually and in his Official Capacity as Supervisor of Child Protection Services; CHAD KIRSCHBAUM, Individually and in his Official Capacity as Supervisor of Child Protection Services; KIM PEASE, Individually and in her Official Capacity of Social Worker; MARISSA GAGNON, Individually and in her Official Capacity of Social Worker; JENNIFER STILL, Individually and in her Official Capacity of Social Worker; KAREN HAUGERUD,  Individually And in her Official Capacity as Guardian Ad Litem; SUSAN JENKINS, M.D., Individually and in her Official Capacity as Olmsted County Medical Consultant; MARK OSTREM, Individually and in His Official Capacity as Olmsted County Attorney; MICHELLE BARNES, Individually and in her Official Capacity as Assistant Olmsted County Attorney; FREDERICK SUHLER,  Individually and in his Official Capacity as Public Defender; JUDITH TEED, Individually and in her Official Capacity as Olmsted County Foster Care Provider; and Unknown DOE defendants, Defendants.
Charnesky, pro se.
Nicholas Walker Anderson, Minnesota Attorney General, St.
Paul, MN, for defendants Tony Lourey, Nikki Farago, Jamie
Sorenson, and Karen Haugerud.
Gregory J. Griffiths, Dunlap & Seeger, Rochester, MN, for
defendants Heidi Welsh, Paul Fleissner, Sarah Oakes, Emily
Colbenson, Amy Shilliabeer, Jesse Stratton, Chad Kirschbaum,
Kim Pease, Marissa Gagnon, Jennifer Still, Mark Ostrem, and
Glen Ascheman and Richard J. Thomas, Burke & Thomas,
PLLP, St. Paul, MN, for defendant Susan Jenkins, M.D.
V. Desteian and Kelly A. Putney, Bassford Remele,
Minneapolis, MN, for defendant Frederick Suhler.
Michelle Draewell and James S. McAlpine, Quinlivan &
Hughes, PA, St. Cloud, MN, for defendant Judith Teed.
MEMORANDUM OPINION AND ORDER
C. TOSTRUD, UNITED STATES DISTRICT JUDGE
plaintiff Jill Charnesky commenced this action on her own
behalf and as “next friend” of her son, B.C.,
asserting claims against nineteen defendants relating to
their alleged involvement in child-protection matters
involving her and B.C. Defendants fall into five groups: (1)
four defendants are with the Minnesota Department of Human
Services (the “DHS Defendants”); (2) twelve
defendants are associated with Olmstead County (the
“Olmstead County Defendants”); (3) one defendant,
Frederick Suhler, served briefly as Charnesky's
court-appointed attorney in a proceeding in Olmstead County
District Court; (4) one defendant, Susan Jenkins, M.D., is a
private-practice physician who treated B.C. for a time; and
(5) one defendant, Judith Teed, is a foster-care provider in
Olmstead County. Defendants seek dismissal of all claims
asserted against them, with one exception. The exception is
the Olmstead County Defendants, who seek dismissal of some
claims and, with respect to other claims, an order pursuant
to Federal Rule of Civil Procedure (“Rule”)
7(a)(7) requiring Charnesky to reply to certain paragraphs of
their answer asserting immunity-related defenses. The law
requires that Defendants' motions be granted.
alleges that her son, B.C., is disabled, and has been
diagnosed with various longstanding mental and neurological
disorders. Compl. ¶¶ 7, 26-27, 29. Although the two
were living out of state at the time, B.C. was referred to
the Mayo Clinic, and he began receiving care there in
February 2016. Id. ¶¶ 33-37. But it was
difficult to pursue care at the Mayo Clinic while residing in
another state, and in December 2016, Charnesky and B.C.,
moved to Rochester, Minnesota in December 2016, to better
enable B.C. to treat at the Mayo Clinic. Id.
¶¶ 6, 38-39.
weeks after the pair moved to Minnesota, Charnesky became
severely depressed and went to the Mayo emergency department.
Id. ¶ 56(D). She was admitted to the hospital
for ten days to treat severe seasonal affective disorder.
Id. ¶ 56(E). Because she did not know anyone in
Minnesota at the time, she voluntarily surrendered B.C. to
the care of Olmstead County Social Services during her
hospital stay. Id. ¶ 56(D). Upon her discharge,
B.C. was returned to her custody; at that same time, she
expressed concerns about B.C.'s mental health to the
social worker with whom she had worked in surrendering
B.C.'s custody, Defendant Jennifer Still. Id.
¶ 56(F). The resources that Still suggested were not
available to Charnesky because of her limited financial
resources at the time. Id. ¶¶ 56(F), 57.
Charnesky's own treatment following her discharge has
been effective. Id. ¶ 71.
March 2017, a Mayo psychiatry resident made a serious error
with B.C.'s medication, and he had to be admitted to the
Mayo Clinic emergency department. Id. ¶ 43.
Charnesky retained an outside psychiatrist to treat B.C. and
informed the resident that B.C. would no longer be her
patient. Id. ¶¶ 44-45. Within twenty-four
hours of B.C. being admitted to the emergency department, the
psychiatry resident who made the medication error initiated a
false CHIPS petition with Olmstead County Child Protection
indicating that B.C. was the victim of child abuse.
Id. ¶ 46. (“CHIPS” stands for
“child in need of protection or services, ”
see generally Minn. Stat. § 260C.141.) The
resident's report recommended immediately removing B.C.
from Charnesky's care. Compl. ¶ 56. Charnesky
alleges that the resident, in concert with at least one other
Mayo staff member, did this so that Charnesky would be
preemptively discredited if she were to pursue a malpractice
claim based on the medication error, and that in this way
Olmstead County Child Protection acted as Mayo's
“enforcer.” Id. ¶ 83.
Still-the same Olmstead County social worker who had
interacted with Charnesky during her short-term voluntary
surrender of B.C. as she sought emergency medical
care-authored the CHIPS petition. Id. ¶¶
22, 47. That petition alleged that Charnesky suffered from
factitious disorder by proxy (previously called Munchausen
syndrome by proxy), a condition in which the subject falsely
claims that another person has physical or psychological
signs or symptoms of illness, or causes injury or disease in
another person-here, according to the CHIPS petition,
B.C.-with the intention of deceiving others. Id.
¶¶ 48, 64; see generally American
Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders § 300.19 (5th ed. 2013).
(Charnesky had previously disclosed to B.C.'s treating
neuropsychologist at Mayo that a physician in B.C.'s
previous state of residence had accused Charnesky of having
the disorder, but that an investigation by child-welfare
authorities in that jurisdiction had “completely
cleared” her. Compl. ¶¶ 62-63.) Not only does
Charnesky deny having such a condition, she denies several of
the other factual assertions in the CHIPS petition in ways
that range from small to highly significant. Id.
¶¶ 48-49, 56(A)-(C), 64-81, 84. B.C. is also
alleged to have denied most, if not all, of the allegations
in the CHIPS petition. Id. ¶ 84.
April 4, 2017, a Mayo psychiatrist who was sympathetic to
Charnesky and who disagreed with the resident's report to
Child Protective Services tried to warn Charnesky to leave
the state before the CHIPS petition was served, but Charnesky
was reluctant to remove B.C. from the care of his physicians
at the Mayo Clinic. Id. ¶¶ 52-54. She
stayed in Minnesota, and B.C. was taken into the custody of
Olmstead County. Id. ¶ 55.
there, Charnesky alleges, events worsened significantly. The
CHIPS petition proceeded in Olmstead County District Court,
although B.C.'s medical records-relevant to the central
issue of whether Charnesky was unable to care for B.C. due to
her own alleged factitious disorder by proxy-had not been
produced to Charnesky. Id. ¶¶ 86-93.
Meanwhile, B.C. was in a foster home that was unable to care
for his medical needs and in which he was emotionally and
verbally abused. Id. ¶¶ 94-96. B.C. was
driven to self-harm in that foster placement, and after a
hospitalization he was sent to a juvenile detention center
where he was assaulted. Id. ¶¶ 96-100. No
one reported that assault to the Olmstead County District
Court until Charnesky, who learned of the assault only by
happenstance, reported it. Id. ¶¶ 100-01,
105. After Charnesky reported B.C.'s assault to the state
court, she alleges, CPS began retaliating against her for
doing so by, among other things, barring her from attending
B.C.'s medical and therapy appointments, reducing her
visitation and requiring that it be supervised, cutting her
off from receiving information from B.C.'s school,
reducing her phone contact with B.C., and preventing her from
sending him mail. Id. ¶¶ 107, 109, 124,
164. When B.C. was moved from the juvenile facility to a new
foster home, Defendant Teed, the foster parent in that
placement, did not facilitate a phone call between Charnesky
and B.C. that had been planned for Christmas Day.
Id. ¶¶ 108, 164.
was about 16 when these events began, and he turned 18 a few
months ago. Mot. to Unseal [ECF No. 6]. The state-court judge
has extended B.C.'s CHIPS petition until B.C. turns 19,
which will occur about six months from now. Id.;
Compl. ¶ 55. Charnesky believes Defendants' ultimate
goal is to have B.C. placed into a permanent guardianship,
where she will be unable to have contact with him. Compl.
¶ 125. Ultimately Charnesky, with B.C., fled the state.
Id. ¶¶ 137-46. She was criminally charged.
Id. ¶ 146. Those criminal proceedings are not
at issue in this case.
her the benefit of every reasonable doubt and construing the
Complaint liberally, see Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (citations omitted),
Charnesky appears to bring one claim solely on her own
behalf-Count VIII (mistakenly numbered in the Complaint as
Count XIII), a claim under 42 U.S.C. § 1983 alleging
prosecutorial misconduct by two of the Olmstead County
Defendants. Compl. ¶ 170. She appears to bring all other
claims either solely on behalf of B.C., as his next friend,
see id. ¶¶ 152 (Count II), 154 (Count
III), 160 (Count IV), 162 (Count V), or jointly on behalf of
both herself and B.C., see id. ¶¶ 150
(Count I), 165 (Count VI), 164 (Count VII).
as she purports to bring claims on behalf of B.C., Charnesky
cannot pursue them because she is not an attorney and is not
represented by counsel in this action. “A nonlawyer . .
. has no right to represent another entity . . . in a court
of the United States.” Knoefler v. United Bank of
Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (citations
omitted). That general rule holds true even when the
non-attorney seeks to represent her own children. Bower
v. Springfield R-12 Sch. Dist., 263 Fed.Appx. 542, 542
(8th Cir. 2008) (per curiam) (unpublished table opinion)
(citation omitted); Myers v. Loudoun Cty. Pub.
Schs., 418 F.3d 395, 401 (4th Cir. 2005) (collecting
cases). This rule protects the rights of those whose cases
come before the Court for adjudication and also
“jealously guards the judiciary's authority to
govern those who practice in its courtrooms.”
Myers, 418 F.3d at 400 (citations omitted); see
also Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975) (per curiam) (“[T]he competence of a lay[person]
[litigating for herself is] clearly too limited to allow
h[er] to risk the rights of others”). The claims
Charnesky alleges on behalf of B.C. will be dismissed without
prejudice. See Bower, 263 Fed.Appx. at 542.
opposition to the Olmstead County Defendants' motion,
see ECF No. 77 at 23, and again at the hearing,
Charnesky requested that the Court appoint counsel for B.C.
Although no constitutional or statutory right exists to
appointed counsel in a federal civil case, Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006)
(citation omitted), a court “may request an attorney to
represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1). Federal district courts have
“a good deal of discretion to determine whether
representation is warranted given the nature of the case and
the litigants.” Chambers v. Pennycook, 641
F.3d 898, 909 (8th Cir. 2011) (citation omitted). In
determining whether to appoint counsel, courts consider
“the factual complexity of the issues, the ability of
the indigent person to investigate the facts, the existence
of conflicting testimony, the ability of the indigent person
to present the claims, and the complexity of the legal
arguments.” Phillips, 437 F.3d at 794
even where a court determines that the “plaintiff as
well as the court will benefit from the assistance of
counsel, ” see Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1005 (8th Cir. 1984), §
1915(e)(1) does not authorize the court to require
any attorney to undertake representation of an indigent civil
litigant; it merely codifies the court's authority to
ask. See 28 U.S.C. § 1915(e)(1)
(providing that the court “may request” such
representation); Mallard v. U.S. Dist. Court for S. Dist.
of Iowa, 490 U.S. 296, 305, 309 (1989) (“Congress
did not authorize mandatory appointments” by enacting
the forerunner to the current § 1915(e)(1), which
similarly provided that courts “may request” that
attorneys represent indigent civil litigants). Here, the
Court already made such a request by referring Charnesky to
the FBA Pro Se Project, a program operated by the
Minnesota Chapter of the Federal Bar Association in which
volunteer lawyers donate their time to assist unrepresented
individuals. See ECF No. 5. Charnesky was referred
to the FBA Pro Se Project six months ago, a few days
after filing the Complaint, and thus far either no lawyer has
been willing to represent her or B.C. or Charnesky has
declined to accept an offer of assistance.
other avenues for identifying willing counsel were available
and not redundant, it seems likely that pressing an attorney
into service in this litigation would not afford B.C.
adequate protection. See Fed. R. Civ. P. 17(c)(2)
(providing that “[t]he court must appoint a guardian ad
litem-or issue another appropriate order-to protect a minor
or incompetent person who is unrepresented in an
action”). His claims would still be deeply intertwined
with those his mother brings in this same case, and the
litigation of his factually and legally related claims
therefore would be bound up with the litigation decisions of
a pro se litigant. Furthermore, it is not at all clear
whether B.C.'s interests are served by participating in
this litigation, even through a representative. In December
2018-after his eighteenth birthday but while still operating
under a limited guardianship, see Desteian Decl.,
Ex. 1 (Order Appointing Limited Guardian entered in Olmstead
County on Nov. 28, 2018) [ECF No. 48-1]-he wrote a letter to
his mother and aunt in which he told them “I'm
tired of Court and I'm tired of these Court battles so
I'm asking you not to go to Court. I don't need you
to fight for me. I can fight my own battles. I want this to
be over. It causes too much stress for me.” Pl.'s
Opp'n to Olmstead Cty. Defs.' Mot., Ex. O at 6 [ECF
No. 77-21]. Charnesky insists the letter is a forgery,
see id. ¶ 32, but that is not at all evident
from her submissions to the Court. Compare id., Ex.
O at 6 (signature on allegedly forged letter) with
id., Ex. O at 7 (allegedly authentic signature).
circumstances presented by this case, including the
complexities and difficulties that would necessarily arise if
B.C. were to litigate his claims in this case separate from,
but still alongside, his mother, and the serious doubts about
whether B.C. wants, or believes he would benefit from being
the subject of, this type of federal civil-rights litigation,
dismissing B.C.'s claims without prejudice would afford
the widest range of protection to B.C.'s rights,
consistent with Rule 17(c)(2). If he wants to proceed with
litigation, he can take steps to do so, and nothing in this
Court's disposition of his claims today will prejudice
his rights. If does not want to sue, he need not.
Accordingly, the Court will decline to take further action to
facilitate retention of counsel for B.C. in this case at this
the only claims Charnesky may pursue are those she brings on
her own behalf, the Court next turns to those four claims:
Count I, a § 1983 substantive due process claim against
all Defendants based on the removal of B.C. from
Charnesky's home; Count VI, a § 1983 conspiracy claim
against all Defendants except three of the four DHS
Defendants; Count VII, an ADA-retaliation claim against all
Defendants; and Count ...