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Charnesky v. Lourey

United States District Court, D. Minnesota

April 5, 2019

JILL CHARNESKY, Individually and as Mother and Next Friend of [B.C., a Minor and Disabled Individual, Plaintiff,
TONY LOUREY, [1] in his Official Capacity of Commissioner of the Minnesota Department of Human Services; NIKKI FARAGO, [2] 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, [3] 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, [4] 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.

          Jill 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 Michelle Barnes.

          Bryon Glen Ascheman and Richard J. Thomas, Burke & Thomas, PLLP, St. Paul, MN, for defendant Susan Jenkins, M.D.

          Aram 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.



         Pro se 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.


         Charnesky 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.

         Several 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.

         In 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.

         Jennifer 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.

         On 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.

         From 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.

         B.C. 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.



         Giving 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).

         Insofar 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.

         In her 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 (citation omitted).

         But 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.

         Even if 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).

         In the 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 time.


         Because 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[6]; Count VI, a ยง 1983 conspiracy claim against all Defendants except three of the four DHS Defendants; Count VII, an ADA-retaliation claim against all Defendants; and Count ...

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