In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 15‐2220

REBIRTH CHRISTIAN ACADEMY DAYCARE, INC.,

Plaintiff‐Appellant,

v.

MELANIE BRIZZI and MICHAEL GARGANO,

Defendants‐Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 12‐cv‐01067‐SEB‐DKL — Sarah Evans Barker, Judge.

____________________

ARGUED JANUARY 5, 2016 — DECIDED AUGUST 30, 2016

____________________

Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Rebirth Christian Academy

Daycare, an Indiana non‐profit corporation, ran a child care

ministry—a “child care operated by a church or religious

ministry that is a religious organization exempt from federal

income taxation.” IND. CODE § 12‐7‐2‐28.8. A state agency re‐

voked Rebirth’s registration after an inspector concluded

that the organization had violated several statutory and reg‐
2 No. 15‐2220

ulatory provisions governing registered child care minis‐

tries. Rebirth sued state officials for damages and injunctive

relief under 42 U.S.C. § 1983, claiming that they had violated

the due‐process clause of the Fourteenth Amendment by re‐

voking its registration without providing it with an oppor‐

tunity to be heard. The district court dismissed Rebirth’s in‐

dividual‐capacity claims, concluding that qualified immuni‐

ty protected the defendants from liability for civil damages

because they had not violated clearly established law. After

the parties developed an evidentiary record on the

official‐capacity claims, Rebirth ultimately prevailed on its

claims for injunctive relief. It now challenges the district

court’s dismissal of its claims for damages against the de‐

fendants sued in their individual capacities. We conclude

that, based on the allegations in the complaint, the defend‐

ants were not entitled to qualified immunity because they

violated clearly established law: the complaint adequately

alleges that they deprived Rebirth of a property interest

without first providing an opportunity for some type of

hearing. Accordingly, we reinstate Rebirth’s

individual‐capacity claims and remand for further proceed‐

ings.

I.

Child care ministries are extensively regulated by the

State of Indiana—specifically, by the Bureau of Child Care (a

sub‐agency of the Division of Family Resources, which is a

branch of the Indiana Family and Social Services

Administration, see IND. CODE §§ 12‐13‐6‐1, 12‐13‐1‐1).

Indiana statutes provide that, to operate a child care minis‐

try lawfully, a religious organization must either obtain a li‐
No. 15‐2220 3

cense from or register with the Bureau. Id. §§ 12‐17.2‐6‐1

to ‐2.

A religious organization may procure a license to operate

a child care ministry as either a “child care home” (a child

care located in a residential building, IND. CODE

§ 12‐7‐2‐28.6) or a “child care center” (a child care located in

a nonresidential building, id. § 12‐7‐2‐28.4). To secure either

type of license, a provider must submit an application with

supporting documents, id. §§ 12‐17.2‐4‐3, 12‐17.2‐5‐3; under‐

go site visits and inspections, id. §§ 12‐17.2‐4‐7, 12‐17.2‐4‐15

to  ‐16, 12‐17.2‐5‐6, 12‐17.2‐5‐15 to  ‐16; and get re‐licensed

every two years, id. §§ 12‐17.2‐4‐12(a), 12‐17.2‐5‐12(a).

To operate a registered (as opposed to licensed) child

care ministry lawfully, a religious organization must submit

an application to the Bureau, see Indiana Family & Social

Services Administration, The ABC’s of a Child Care Business,

at 7–8 (Nov. 2010), available at http://www.in.gov/fssa/files/

5236_The_ABCs_of_a_Child_Care_Business.pdf; pay a regis‐

tration fee of $50, IND. CODE § 12‐17.2‐6‐12; submit an appli‐

cation to Indiana’s Department of Homeland Security for the

state fire marshal (paying another $50), id. § 12‐17.2‐6‐13;

ABC’s of a Child Care Business, supra, at 8; and pass inspec‐

tions by both the State Fire Division Inspector and the

Bureau’s inspector, IND. CODE §§ 12‐17.2‐6‐4 to  ‐5. (A regis‐

tered child care ministry must also submit to semiannual in‐

spections, id. § 12‐17.2‐6‐4, and re‐register annually, ABC’s of

a Child Care Business, supra, at 8.) A religious organization

that satisfies these requirements is issued a certificate of reg‐

istration showing that it is authorized to operate a child care

ministry without a license.  
4 No. 15‐2220

The state may revoke a child care ministry’s certificate of

registration only “if the operator or an employee of the child

care ministry violates” the statutes or regulations governing

registered ministries. IND. CODE § 12‐17.2‐6‐9. A license to

operate a child care ministry likewise may be revoked only

for a violation of the law. Id. §§ 12‐17.2‐4‐33, 12‐17.2‐5‐33.

State law affords a procedure for administratively appealing

the revocation of a license (and allows a licensed child‐care

provider to continue operating while such an appeal is

pending). See id. §§ 12‐17.2‐4‐33(b)(1), 12‐17.2‐4‐19 to ‐22,

12‐17.2‐5‐33(b)(1), 12‐17.2‐5‐19 to ‐22. But Indiana’s statutory

scheme does not give providers an administrative oppor‐

tunity to challenge the Bureau’s decision to revoke a

certificate of registration.

Rebirth obtained a certificate of registration and began

operating a child care ministry in late 2009. In mid‐2012, a

representative of the Bureau conducted an unannounced in‐

spection of the ministry. After the inspection, the Bureau

gave Rebirth a document titled “Plan of Improvement,”

which stated that Rebirth had violated statutes and regula‐

tions governing registered child care ministries. The Plan of

Improvement alleged eight violations; it also directed

Rebirth to cure the purported infractions and submit proof

within ten days that it had done so. The document did not,

however, offer any procedure for challenging the Bureau’s

findings.

Rebirth believed that it had not committed any of the vio‐

lations identified by the Bureau and thus did not submit any

documentation showing that it had cured the violations al‐

leged in the Plan of Improvement. Shortly after the deadline

for submitting the documentation had passed, Melanie
No. 15‐2220 5

Brizzi, the head of the Bureau, sent Rebirth a letter notifying

the organization that the Bureau would terminate Rebirth’s

certificate of registration in two weeks because of Rebirth’s

failure to provide evidence that it had cured the purported

violations. Like the Plan, the notice of termination did not

give Rebirth a chance to challenge the Bureau’s findings or

its decision to terminate Rebirth’s registration.

Rebirth nonetheless sent the Bureau a letter requesting an

opportunity to appeal administratively the agency’s impend‐

ing termination of the registration. Brizzi responded with a

letter of her own, telling Rebirth that “[t]he Indiana General

Assembly did not provide for an administrative appeal pro‐

cess for the loss of” a certificate of registration and that

therefore the Bureau would not grant “an administrative ap‐

peal review process before the Division of Family Resources.”

The Bureau terminated Rebirth’s registration without any

hearing, and Rebirth ceased operating the child care minis‐

try.  

The following month, Rebirth filed a lawsuit claiming

that the Bureau had violated its right to due process under

the Fourteenth Amendment by terminating its registration

without first providing Rebirth with an opportunity to chal‐

lenge the termination. In Rebirth’s first amended complaint

(the complaint relevant to this appeal), it named as defend‐

ants Brizzi and Michael Gargano, who was the Secretary of

the Indiana Family and Social Services Administration and

who oversaw the Bureau when it terminated Rebirth’s regis‐

tration. Rebirth sued the defendants in both their individual

and official capacities, seeking damages and injunctive relief.

Early in the litigation, the district judge granted the

defendants’ motion to dismiss the individual‐capacity claims
6 No. 15‐2220

on the ground of qualified immunity. The judge noted that

the procedures of the Family and Social Services

Administration do not require an administrative appeals

process and reasoned that, in light of this fact, Brizzi and

Gargano did not act contrary to clearly established law when

they failed to provide Rebirth with an administrative hear‐

ing or “to otherwise take unilateral action to change” the

agency’s procedures.

Rebirth’s official‐capacity claims went forward. After the

parties cross‐moved for summary judgment, the district

judge entered judgment for Rebirth on the official‐capacity

claims, reasoning that Rebirth was deprived of a property

interest without due process. See Rebirth Christian Acad.

Daycare, Inc. v. Brizzi, 96 F. Supp. 3d 835 (S.D. Ind. 2015). The

judge explained that when “state law gives people a benefit

and creates a system of nondiscretionary rules governing

revocation or renewal of that benefit, the recipients have a

secure and durable property right.” Id. at 845 (quoting

Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir. 1988)). And,

the judge continued, because “Indiana law provides that

child care ministries are entitled” to a certificate of registra‐

tion “as long as they are in compliance with” the relevant

statutes and regulations, Rebirth “has a property interest in

its certificate of registration as an unlicensed child care min‐

istry to which due process protections apply.” Id. The district

judge concluded that the process provided by the agency—

notice provided by the Plan of Improvement and only

post‐deprivation judicial remedies proposed by the defend‐

ants—“do not provide a level of process that comports with

the due process requirements.” Id. at 849. The judge ex‐

plained that the Plan of Improvement did not provide ade‐

quate process because it afforded Rebirth an opportunity
No. 15‐2220 7

“only to correct alleged violations, but not challenge them.”

Id. at 850. Although an informal challenge by Rebirth to the

findings in the Plan might be resolved by the individual in‐

spector, “[s]uch an ad hoc and unpredictable process can

hardly be considered to comport with procedural due pro‐

cess standards.” Id. The district judge also determined that

the post‐deprivation judicial remedy identified by the de‐

fendants (an action in tort) did not provide due process be‐

cause no tort claim exists under Indiana law that would pro‐

vide relief to Rebirth. Id. at 851–52.

In the order granting Rebirth’s motion for summary

judgment, the district judge directed the parties to confer

and “reach an agreement regarding administrative proce‐

dures that meet the requirements” of due process. Rebirth,

96 F. Supp. 3d at 852. After discussions, the parties proposed

that the district judge enter a permanent injunction ordering

the Family and Social Services Administration to provide

registered child care ministries with “the same administra‐

tive appeal process as provided to licensed child care centers

for enforcement actions.” The district judge entered the

permanent injunction proposed by the parties.  

II.

On appeal, Rebirth challenges the district court’s dismis‐

sal of the individual‐capacity claims against Brizzi and

Gargano. Rebirth maintains that the defendants are not

entitled to qualified immunity because, at the time its

registration was terminated, the law clearly established that

Rebirth had a property interest in its registration as a child

care ministry and that the defendants could not deprive

Rebirth of this property interest without first allowing it an

opportunity to be heard.
8 No. 15‐2220

Rebirth can overcome the qualified‐immunity defense

(which protects government officials from liability from civil

damages) only if we conclude (1) that the defendants violat‐

ed a constitutional right and (2) that the constitutional right

was clearly established at the time of the violation. See Wood

v. Moss, 134 S. Ct. 2056, 2066–67 (2014); Ashcroft v. al‐Kidd,

563 U.S. 731, 735 (2011); Novoselsky v. Brown, 822 F.3d 342,

354 (7th Cir. 2016). The appellees (Brizzi and Gargano) ac‐

cept the district court’s ruling that they violated Rebirth’s

constitutional right. Thus, we address only the question

whether the constitutional right at issue was clearly estab‐

lished at the time of the violation.

Rebirth’s due‐process claim requires a two‐step analysis:

“The first step requires us to determine whether the plaintiff

has been deprived of a protected interest; the second re‐

quires a determination of what process is due.” Doherty v.

City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996) (citing Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Forbes v. Trigg,

976 F.2d 308, 315 (7th Cir. 1992)); see Kentucky Depʹt of Corr. v.

Thompson, 490 U.S. 454, 460 (1989); Barrows v. Wiley, 478 F.3d

776, 780 (7th Cir. 2007). We therefore begin with the question

whether the law clearly established that Rebirth had a prop‐

erty interest in its registration as a child care ministry. We

conclude that the answer is yes.

This question is not a close one, as the law on this issue

has been clearly established for decades. As we said almost

thirty years ago (and have since repeated), “[w]here state

law gives people a benefit and creates a system of nondiscre‐

tionary rules governing revocation or renewal of that benefit,

the recipients have a secure and durable property right, a

legitimate claim of entitlement.” Cornelius v. LaCroix,
No. 15‐2220 9

838 F.2d 207, 210 (7th Cir. 1988); see Kvapil v. Chippewa Cty.,

Wis., 752 F.3d 708, 713 (7th Cir. 2014); Barrows, 478 F.3d

at 780; Talley v. Lane, 13 F.3d 1031, 1035 (7th Cir. 1994); Contʹl

Training Servs., Inc. v. Cavazos, 893 F.2d 877, 893 (7th Cir.

1990). Here, the state did exactly that: it gave Rebirth a bene‐

fit—a certificate of registration entitling it to operate a child

care ministry—and created a system of rules defining when

the state could revoke that entitlement. See IND. CODE

§ 12‐17.2‐6‐9 (providing that child care ministry’s certificate

of registration may be revoked only “if the operator or an

employee of the child care ministry violates” the statutes or

regulations governing registered ministries). Thus, any rea‐

sonable government official would have understood that

Rebirth had a property interest in its registration as a child

care ministry. See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015)

(“To be clearly established, a right must be sufficiently clear

that every reasonable official would have understood that

what he is doing violates that right.” (quoting Reichle v.

Howards, 132 S. Ct. 2088, 2093 (2012)).

Numerous Supreme Court decisions reinforce our

conclusion that, because Rebirth was entitled to retain its

registration unless it violated state law, Rebirth’s ability to

operate a registered child care ministry was a clearly pro‐

tected property right at the time that the defendants revoked

its registration. See, e.g., Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 538–39 (1985) (holding that classified civil ser‐

vice employees had property rights in continued employ‐

ment where state statute provided that such employees

could be dismissed only for cause); Barry v. Barchi, 443 U.S.

55, 64 (1979) (holding that trainer had property interest

in horse‐training license where state law provided that li‐

cense could be suspended “only upon a satisfactory showing
10 No. 15‐2220

that his horse had been drugged and that he was at least

negligent in failing to prevent the drugging”); Mackey v.

Montrym, 443 U.S. 1, 10 (1979) (“[S]uspension of a driver’s

license for statutorily defined cause implicates a protectible

property interest ... .”); Goldberg v. Kelly, 397 U.S. 254, 262

(1970) (recognizing property interest in welfare benefits be‐

cause “[s]uch benefits are a matter of statutory entitlement

for persons qualified to receive them”).  

These decisions thus demonstrate that the question

whether Rebirth had a protected property interest in its reg‐

istration was beyond debate. See al‐Kidd, 563 U.S. at 741 (ex‐

plaining that case directly on point is not required for consti‐

tutional right to be clearly established; rather, “existing prec‐

edent must have placed the statutory or constitutional ques‐

tion beyond debate”); Estate of Escobedo v. Bender, 600 F.3d

770, 781 (7th Cir. 2010) (“[E]ven where there are notable fac‐

tual distinctions between the precedents relied on and the

case before the Court, if the prior decisions gave reasonable

warning that the conduct at issue violated constitutional

rights they can demonstrate clearly established law.”);

McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004) (“The sali‐

ent question is not whether there is a prior case on all fours

with the current claim but whether the state of the law at the

relevant time gave the defendants fair warning that their

treatment of the plaintiff was unconstitutional.”).

The appellees respond that Rebirth’s property interest

was not clearly established because the registration is “not a

license but [is] an exemption from licensure.” But an argu‐

ment over semantics does not get the appellees anywhere

because, when determining the existence of a property inter‐

est, “we must look behind labels.” Reed v. Vill. of Shorewood,
No. 15‐2220 11

704 F.2d 943, 948 (7th Cir. 1983). “A license is nothing but a

promise by the issuing body not to interfere in business con‐

ducted according to its terms.” Natʹl Paint & Coatings Assʹn v.

City of Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995) (citing River

Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir.

1994); Toulabi v. United States, 875 F.2d 122 (7th Cir. 1989)).

Thus, the certificate of registration that Rebirth obtained was

a de facto license; the appellees’ referring to it as an “exemp‐

tion” does not persuade us to treat it otherwise.

The appellees also maintain that “[t]he fact that a reason‐

able official would know that a license to operate is a proper‐

ty interest does not mean that the official would know that

an exemption from the licensure requirement is also a prop‐

erty interest.” They contend that “[i]t is not unreasonable for

a public official to believe that an exemption from licensure

differs from a license, because even if the exemption is lost

the entity can continue to operate if it obtains a license.” This

argument misses the point. Even if Rebirth could have re‐

quested a license after the defendants had revoked its regis‐

tration, a reasonable official would nonetheless have under‐

stood that Rebirth had a property interest in the uninter‐

rupted registration of its child care ministry. If anything, the

purported distinction between a license and registration

goes only to the value of a registration, not its status as a

property interest; as the appellees point out in their brief,

“[t]he requirements for registering and operating an unli‐

censed child care ministry are less extensive than the re‐

quirements for operating a licensed child care center or

home.”  

The only question that remains is whether the manner in

which the appellees deprived Rebirth of its property interest
12 No. 15‐2220

violated clearly established law. Here, too, we conclude that

the answer is yes. “An essential principle of due process is

that a deprivation of life, liberty, or property ‘be preceded by

notice and opportunity for hearing appropriate to the nature

of the case.’” Loudermill, 470 U.S. at 542 (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). It

has long been clearly established that the “root requirement”

of due process is that a person “be given an opportunity for

a hearing before he is deprived of any significant property

interest, except for extraordinary situations where some val‐

id governmental interest is at stake that justifies postponing

the hearing until after the event.” Boddie v. Connecticut,

401 U.S. 371, 379 (1971); see Zinermon v. Burch, 494 U.S. 113,

127 (1990) (explaining that the Constitution usually “re‐

quires some kind of a hearing before the State deprives a per‐

son of liberty or property”); Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 570 n.7 (1972) (stating that “deprivation of

a protected interest need not be preceded by opportunity for

some kind of hearing” only in “rare and extraordinary situa‐

tions”); Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir.

2013) (“The due process clause of the fourteenth amendment

does require a state to afford an opportunity for a hearing

before depriving someone of a property right created by

state law.”); Somerset House, Inc. v. Turnock, 900 F.2d 1012,

1015 (7th Cir. 1990) (“Generally, a pre‐deprivation hearing is

required, but the formality and procedural requisites for a

hearing can vary, depending on the importance of the inter‐

ests involved and the nature of the subsequent proceed‐

ings.”).  

Rebirth was clearly entitled to a pre‐deprivation oppor‐

tunity to challenge the proposed loss of its registration. We

agree with the district judge’s assessment—unchallenged by
No. 15‐2220 13

the appellees—“that the interest at stake here, to wit,

[Rebirth’s] interest in the continued operation of its child

care business, is an important one.” Rebirth, 96 F. Supp. 3d

at 847. Moreover, the appellees have not identified any gov‐

ernmental interest that might have arguably justified their

failure to provide Rebirth with an opportunity to be heard

before depriving it of this significant property interest. The

fact that the Bureau did not revoke the registration until two

weeks after it gave Rebirth notice of the revocation further

undermines any potential argument that the Bureau was

responding to some perceived emergency necessitating that

it quickly rescind Rebirth’s registration without first giving it

a chance to challenge the Bureau’s allegations. We therefore

conclude that, by revoking Rebirth’s registration without

first providing the organization with an opportunity to be

heard, the appellees violated clearly established law and are

not entitled to qualified immunity.

The appellees argue that the proper inquiry is not wheth‐

er Rebirth had a clearly established right to be heard before

its registration was revoked but whether it had a clearly es‐

tablished right to an administrative appeal of the type avail‐

able to license holders. We reject this argument. Contrary to

the appellees’ assertions, this is not a case about “what

amount of process is due.” Rather, this is a case in which due

process clearly required some pre‐deprivation opportunity to

be heard and the appellees provided no opportunity for a

hearing, though nothing prevented them from doing so.  

The appellees offer several further arguments, but none

is persuasive. First, they argue that they gave Rebirth “some

form of process”—namely, notice of the termination. But no‐

tice is just one component of due process; it is not a substi‐
14 No. 15‐2220

tute for an opportunity to be heard. Second, the appellees

contend, as they did in the district court, that Rebirth “had

an opportunity to correct the deficiencies by submitting its

plan of improvement.” As the district judge explained, how‐

ever, the Plan of Improvement gave Rebirth an opportunity

only to correct alleged violations, not to challenge them at a

hearing. Third, the appellees continue to insist that Rebirth

“had an opportunity for judicial review.” But even assuming

this to be the case, post‐deprivation judicial review is not

equivalent to a pre‐deprivation hearing, and the allegations

in the complaint identify no possible justification for the ap‐

pellees’ postponing Rebirth’s hearing until after it lost its

ability to operate.

Finally, the appellees offer a fallback position. They argue

that we can affirm the district court’s dismissal of the indi‐

vidual‐capacity claims on the alternative ground that

Rebirth’s complaint contains no plausible allegations that

Brizzi and Gargano are “personally responsible for the due

process violation.” (Recall that the district judge dismissed

the individual‐capacity claims on the pleadings.) Specifically,

they contend that Rebirth advances only “an incorrect legal

conclusion”—not a factual allegation—when it states in its

complaint that Brizzi and Gargano are personally

responsible for the due‐process violation because they had

the “authority to create an administrative appeal process.”

The appellees note that the Indiana statute does not provide

for an administrative appeal and thus, they maintain,

“[r]esponsibility for not giving Rebirth an administrative

appeal ... lays with the Indiana General Assembly,” which is

immune from suit.
No. 15‐2220 15

Like the appellees’ other arguments, this one lacks merit.

As an initial matter, although the appellees are correct that

no statutory provision requires an administrative appeal be‐

fore the revocation of a registration, this does not mean that

Brizzi and Gargano are excused from providing Rebirth with

due process. True, the statutory scheme did not require that

registered child care ministries receive an administrative ap‐

peal of the type afforded to license‐holders, but neither did it

prohibit the appellees from providing registered child care

ministries with some type of pre‐deprivation hearing. The

issue then is whether Rebirth adequately alleged that the

appellees personally decided to withhold from Rebirth the

pre‐deprivation hearing that they could have provided.

We conclude that Rebirth’s complaint plausibly alleges

that Brizzi and Gargano were personally involved in depriv‐

ing Rebirth of an opportunity for a pre‐deprivation hearing,

and thus the complaint satisfies the requirements of notice

pleading. See Bank of Am., N.A. v. Knight, 725 F.3d 815, 818

(7th Cir. 2013) (explaining that [t]he Rules of Civil Procedure

set up a system of notice pleading,” under which a “defend‐

ant is entitled to know what he or she did that is asserted to

be wrongful”); Alexander v. United States, 721 F.3d 418, 422

(7th Cir. 2013) (“[A] complaint must contain facts that are

sufficient, when accepted as true, to ‘state a claim to relief

that is plausible on its face.’ ... “[T]he plausibility require‐

ment demands only that a plaintiff provide sufficient detail

‘to present a story that holds together.’” (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Swanson v. Citibank,

N.A., 614 F.3d 400, 404 (7th Cir. 2010)). The letters that the

Bureau sent to Rebirth are attached to the complaint and

demonstrate that, as the head of the Bureau of Child Care,

Brizzi personally notified Rebirth that the Bureau would
16 No. 15‐2220

terminate its registration and, when Rebirth requested a

hearing, told the organization that her Bureau would pro‐

vide none. These letters, coupled with the allegations in the

complaint, plausibly allege that Brizzi was personally in‐

volved in the constitutional violation. See Williamson v.

Curran, 714 F.3d 432, 436 (7th Cir. 2013) (“[W]hen a plaintiff

attaches to the complaint a document that qualifies as a writ‐

ten instrument, and her complaint references and relies up‐

on that document in asserting her claim, the contents of that

document become part of the complaint and may be consid‐

ered as such when the court decides a motion attacking the

sufficiency of the complaint.”).  

Although the allegations against Gargano are less specif‐

ic, the complaint permits an inference that he was also per‐

sonally responsible for the denial of due process. As

Secretary of the Family and Social Services Administration,

Gargano was empowered to “[e]stablish and implement the

policies and procedures necessary to implement” the stat‐

utes governing child care ministries. IND. CODE § 12‐8‐1.5‐7.

He had the statutory authority to perform any functions

permitted by the human‐services provisions of the Indiana

statutes, see id. § 12‐8‐1.5‐7(9), (10), and the appellees have

identified no law prohibiting him from providing registered

child care ministries the opportunity—however informal—

for a pre‐deprivation hearing. The complaint permits the

plausible inference that Gargano knew that registered organ‐

izations like Rebirth lacked pre‐deprivation hearings, yet he

did nothing within his power to provide such organizations

with an opportunity to be heard. These allegations are thus

sufficient to permit fact development on the individual‐

capacity claims.
No. 15‐2220 17

III.

In sum, we do not decide the type of pre‐deprivation

hearing that Rebirth was entitled to or that Rebirth shall now

recover damages. We conclude only that Rebirth’s complaint

alleges that the appellees personally violated clearly estab‐

lished law by depriving Rebirth of a property interest (its

registration) without first providing Rebirth with any oppor‐

tunity to be heard. Rebirth will, of course, need more than

allegations to prevail on these claims; it will need evidence

proving that these defendants were personally involved in

the constitutional violation. Given the procedural posture of

this case, the district court should, if necessary, provide

Rebirth with an opportunity for additional discovery so that

it may obtain such evidence.

Accordingly, the judgment of the district court is

VACATED only to the extent that it dismisses Rebirth’s

individual‐capacity claims against Brizzi and Gargano, and

the case is REMANDED to the district court for further pro‐

ceedings consistent with this opinion.