made, the excessive delay before conducting the appcal hearing, and the defendants’
resistance to her efforts to expunge het record, Specifically, Via alleges that defendants
Montalvo and Lagrand violated her rights by their purporled use of the credible evidence
standard and also because they approved the “indicated” finding even though they had no
supporting evidence at all. She alleges that defendants John Goad, then the director of
DCP, and Mary Ellen Eads, a manager within DCP, were responsible for the
development, maintenance and enforcement of the policics that led to the deprivation of
her rights. Via also alleges that Eads violated her rights by failing to expunge her record
upon the recommendation of the ALJ.
Discussion

Defendants have moved to dismiss Via’s complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Though they have tried to couch their argument as based
entirely on qualified immunity, in fact they make two logically and legally distinct
arguments. First, Montalvo, Fads and Goad argue that Via has failed to allege their
involvement in any constitutional violation. Second, all of the defendants claim qualified
immunity.

To bring a claim against defendants under 42 U.S.C. § 1983, a plaintiff first must
allege the defendant’s personal involvement in a constitutional violation. See Doyle v.
Camelot Care Centers, Inc., 305 F.3d 603, 614 (7th Cir. 2002) (Doyle 17). The complaint
adequately alleges the involvement of Montalvo, Eads and Goad with regard to the claim
arising from the usc of the credible evidence standard, Via alleges that Montalvo
reviewed Lagrand’s work and approved the issuance of an indicated report against Via.
The claims against Eads and Goad are premised primarily upon their oversight and

4



Boyle, 144 F.3d 1060, 1064 (7th Cir. 1998). Because Via alleged in her complaint that
the indicated report was based on no evidence, the Court may properly consider the
additional allegation made in her brief.

No reasonable official would belicve that issuing an indicated finding with no
supporting evidence at all complied with constitutional norms; defendants do nol argue
otherwise. “Qualified immunity is dissolved .,. when the conduct is so egregious that no
reasonable person could have believed that it would not violate clearly established
rights.” Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). Essentially Via
alleges that Lagrand and Montalvo made an intentionally false report of wrongdoing on
Via’s part with knowledge of the likely devastating consequences to her ability to obtain
and maintain cmployment in the child care field. No reasonable official could have
believed this was consistent with constitutional norms, and thus Lagrand and Montalvo
are not entitled to qualified immunity from Via’s claims based on that theory. As we
have indicated, defendants do not argue otherwise; indeed they do not challenge Via’s
“no evidence” claim other than by making the argument that it was not adequately
alleged in her complaint, an argument that we have rejected.

Via’s allegations in this regard are not sufficient, however, to support claims
against Eads or Goad. “(UJnder § 1983, a plaintiff may not rely on the doctrine of
tespondeat superior to hold supervisory officials fiable for the misconduct of their
subordinates.” Doyle if, 305 F.3d at 614. Neither Goad nor Eads is alleged to have
participated in the making of (he allegedly unsupported report regarding Via or in the
investigation that led to the report. Goad’s only alleged involvement stems [rom the
creation of policies, The complaint does allege that Eads reviewed the file at the appcal

9


Via also must allege that she was deprived of her liberty interest without duc
process of law, Due process requires adequate notice and the opportunity to be heard.
Doyle IT, 305 F.3d at 617 (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Mathews requires consideration of three factors to determine the nature of the process
that is due: the nature of the right that is infringed, the likelihood of erroneous
deprivation and the probable value of additional safeguards, and the government’s
interest, including the function involved and the burden that would be imposed by
imposing additional procedural requirements. fd. a 335.

In Doyle Ii, the Seventh Circuit recognized that the right to work in the profession
of one’s choice is a significant interest. It concluded that in light of the “meager”
evidentiary threshold used by DCFS, there is a “perceptible risk of erroneous
deprivations” of this right. The court stated that in light of DCFS’s obligation to assure
the safety of children exposed to abuse or neglect, and the need in many cases to act
quickly, it had a significant interest in its current system. On the other hand, the court
noted that the need for dispatch does not exist in every case, and it suggested that
DCF8’s system might not “adequately differentiate[ ] among various forms of abuse and
neglect” that are reportable. In some circumstances, the court stated, “the exigencics that
permit disclosure of an indicated finding to prospective employers prior to an
administrative hearing simply may not exist.” The court further stated that it appeared
that DCFS does not inform employers whether an “indicated” employee has had an
opportunity to challenge the agency’s determination, Finally, the court took account of
the delays that had occurred in providing the plaintiffs with a post-deprivation hearing at
which they could challenge the indicated finding. The court concluded that in the Doyle

6



development of DCF'S’s policies and practices. In Doyle 1/, the Seventh Circuit
concluded that allegations against officials concerning their involvement in implementing
policies and procedures alleged to have caused a constitutional violation are sufficient to
allege (heir personal involvement in the violation. See id. at 615. The Court therefore
rejects defendants’ personal involvement arguments with respect to Via’s claims based
on defendants’ use of the credible evidence standard,

All four defendants argue that they arc entitled to qualified immunity from suit.
‘To assess (his argument the Court first determines whether the plaintiff has alleged the
deprivation of an actual constitutional right, and second, whether the right was clearly
established at the time of the violation. See Wilson v. Layne, 526 U.S. 603, 609 (1999);
Doyle 1, 305 F.3d at 616.

A plaintiff making a claim for violation of due process must allege (hat she was
deprived of liberty or property without due process of law. See U.S. Const., amend. XLV,
In Doyle II, the Seventh Circuit held that DCFS’s system under which an indicated report
may be filed in the central register based upon some “credible evidence,” combined with
the delayed appeals process, infringes the subject’s constitutionally protected liberty
interest in pursuing specific career opportunities. Doyle If 305 F.3d at 617. Once such a
report is filed, child care employers are “strongly discourage[d] or eflectively
prohibit[ed]” from hiring persons who are listed in the central register as having an
indicated report, barring those persons from the entering the profession of their choice.
Complaint 4 27(f). Via’s allegation that she was effectively blacklisted for twenty
months by the indicated report filed against her is sufficient to allege a deprivation of a

liberty interest.



that the use of the standard, combined with the absence of a pre-deprivation hearing,
violated the Constitution. Doyle IT, 305 F.3d at 621. Via’s argument against qualified
immunity thus hinges entirely on whether Dupuy and Doyle I were sufficient, together
with the earlier cases, to clearly establish the constitutional right on which she relics for
this claim. They were not. A single district court decision docs not “clearly establish” a
proposition of constitutional jurisprudence, see Alliance to End Repression v, City of
Chicago, 820 F.2d 873, 875 (7th Cir. 1987); the same is true of two decisions issued by a
single district judge on onc day. Dupuy and Doyle J likewise were not sufficient to tip
the scales when added to the previously referenced cases from other jurisdictions. For
these reasons, the Court finds that the constitutional right Via alleges was infringed by
the use of the credible evidence standard was not clearly established at the time of the
alleged infringement of Via’s rights. The claims premised on that theory are therefore
dismissed.

Via also alleges, however, that Lagrand and Montalvo issued an indicated report
of neglect or abuse even though they knew there was no evidence whatsoever supporting
the allegation. Though defendants protest that this theory does not appear in Via’s
complaint, the Court disagrees; Via repeatedly alleges that the finding against her was
made without any supporting evidence whatsoever. See Complaint 4 1, 11, 12, 48(a).
In addition, in her response to the motion to dismiss, Via contends that Lagrand testified
in the expungement hearing that she made the indicated report despite having no
evidence and that she was simply following the orders of her supervisors. See Plaintiff's
Memorandum at 8. The plaintiff may oppose a motion to dismiss by making factual
allegations in her brief that are consistent with the allegations of her complaint. Smith v,

8


Minute Order Form (08/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Matthew F, Kennelly Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 3278 DATE 12/10/2003
CASE Via vs. Lagrand, ct al.
TITLE
[In the following bax (a) indicate the party filing the motion, ¢.g., plaintiff, defendunt, 3rd party plaintiff, and (b) state brietly the nature

MoTION: of the motion being presented.]

DOCKET ENTRY:

a) Oo Filed motion of [ usc listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) a Answer bricf to motion due. . Reply to answer brief duc___

(4) O Ruling/LJearing on | sct for at

(5) Oo Status hearing[held/continued to) (set for/re-sct for] on set for at

(6) i] Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) o Trial{set for/re-set for] on al

(8) oO (Bench/Tury trial] [Hearing] held/continued to at___

(9) ia ‘This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to]

OOFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) OC FRCP41(a)(2).

(10) | {Other docket entry) © ENTER MEMORANDUM OPINION AND ORDER. Defendants’ motion to dismiss is
granted in part. Count I is dismissed as to defendants Goad and Eads, as arc the claims against defendants Lagrand and
Montalvo in Count T which stem from their use of the credible evidence standard. The motion is otherwise denied. Tagrand
and Montalvo are directed to answer Via’s remaining federal claim, and all defendants are directed to answer Via’s state law
claims, within ten days of this order. The case is set for a status on 12/22/03 at 9:30am for the purpose of setting a discovery
schedule on the remaining claims.

(11) @f [For further detail see order attached to the original minute order.)

No notices required, advised in open court, Document
Number
No notices required, umes of tices
Notices mailed by judge's staff. 3
Nolified counsel by telephone. Un dite \
v | Docketing to mail notices.
Mail AQ 430 form, ae AS, intish
Copy to judge/magistrate judge “sj
“ dit wnitilod tice
courtroom
JD deputy's : 3
initials
Date/time received in
ventrat Clerk's Office raling depuy al



process, but simple reliance on the reports of subordinates does not rise to the level of an
intentional violation of constitutional rights of the type claimed as to Lagrand and
Montalvo.
Conclusion

For the foregoing reasons, defendants’ motion to dismiss [docket # 7-1] is granted
in part. Count 1 is dismissed as to defendants Goad and Eads, as are the claims against
defendants Lagrand and Montalvo in Count 1 which stem from their use of the credible
evidence standard. The motion is otherwise denicd. Lagrand and Montalvo are directed
to answer Via’s remaining federal claim, and all defendants are directed to answer Via’s
state law claims, within ten days of this order. The case is set for a status hearing on
December 22, 2003 at 9:30 a.m. for the purpose of setting a discovery schedule on the

remaining claims.

MATTHEW F. KENNELL
United States District Judge,
Date: December 9, 2003

10


case, “[t]he largely ex parle process conducted under the credible evidence standard,
when coupled with [extensive] delay in post-deprivation proceedings, provided
insufficient process” to protect the plaintiffs’ liberty interests. Doyle if, 305 F.3d at 618-
19.

Much like the plaintiffs in Doyle IJ, Via alleges she was forced to wait for an
unnecessarily prolonged period of over seventeen months before she could challenge the
indicated finding. Under Doyle £1, her assertion of a claim based on DCFS’s usc of the
credible evidence standard, combined with the lack of a pre-deprivation hearing and the
delay in the appeals process, is sufficient to state a claim for denial of due process.

An official is entitled to qualified immunity if the constitutional right at issue was
not clearly established at the time of the violation. “The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson vy, Creighton, 483 U.S. 635, 640 (1987). Doyle JT had not
yet been decided at the time of the making of the report against Via, so she must look
clsewhere (o attempt to defeat the claim of immunity. She relics on two decisions from
this District issued on March 30, 2001, Dupuy v. McDonald, 141 1’. Supp. 2d 1090 (N.D.
Tl. 2001), and the district court decision in the Doyle case, Doyle v. Camelot Care
Centers, Inc., 160 F, Supp. 2d 891 (N.D. Ll. 2001) (Doyle J, along with threc cases from
other jurisdictions. Valmonre v. Bane, 18 F.3d 992 (2d Cir. 1994); Lee TT v. Dowling, 87
N.Y.2d 699, 642 N.Y.S.2d 181 (1996); Cavarretta v, Department of Children and Family
Services, 277 Ill. App. 3d 16, 660 N.E.2d 250 (1996).

As the Seventh Circuit held in Doyle If, the latter three decisions may have
indicated a trend against the credible evidence standard, but they did not clearly establish

7



credible evidence to support a finding that Via had abused M.L. Jd. 42. DCFS notified
KinderCare of the finding, and Via was fired from her job there. Jd. ] 43.

Under CANTS, following the making of an indicated report, a final report is
entered into a central register. See 325 ILCS 5/7.7. The accused is not afforded an
opportunity to be heard for a hearing before the report is entered into the register. /d. 4]
27(d). After receiving notice of an indicated report, the subject may appeal to DCFS for
an administrative hearing before an Administrative Law Judge. Jd. 124. The AT.J uses a
preponderance of evidence test to determine whether abuse is indicated, as opposed to the
credible evidence standard employed by DCFS investigators, /d. {| 25. Ifthe subject’s
appeal is successful, the DCFS Director makes a final decision whether the repori should
be expunged from the central register. /d. The indicated report remains in the register
through the entire appeal process. Jd. § 27(f).

The indicated report against Via was made on May 16, 2001; she received notice
of the finding in a letter dated September 14, 2001. /d. 944. Via initiated the appeal
process and appeared before an ALJ in October 2002, approximately seventeen months
after the initial report. /d. 446. Via alleges that the ALJ repcatedly advised DCFS
during the hearing to expunge the report from its records; the ALJ ultimately issued a
recommendation that the report be expunged, /d, 946. Finally, exactly twenty months
after the indicated report was made, DCFS Director Jess McDonald expunged Via's
record on January 16, 2003. id.

Via alleges that her rights under the Due Process Clause of the Fourteenth
Amendment were violated by the defendants’ use of the credible evidence standard, their
failure to meet even that standard, the lack of notice or a hearing before the report was

3



Elgin, Illinois. Complaint { 33. On the afternoon of April 11, 2001, Via replaced
another teacher and began to care for a six-month old child, M.L., who was enrolled at
KinderCare, /d. 935. Via claims that M.L. was unusually upset that afternoon and had
demonstrated similar behavior the previous day. /d. J] 35, 36. About thirly minutes after
starting work, Via was changing M.L.’s diaper and noticed that the baby was
experiencing pain in her left leg. fd. 36. Via notified another teacher and the [acility’s
director, who also examined the girl and decided to call M.L.’s mother. Jd. 99 37, 38.
MLL.’s mother picked up her daughter and took her to a hospital, where it was determined
that M.L. had a broken left leg. Jd. 7 39.

DCFS has procedures by which it investigates, reports and tracks allegations of
child abuse pursuant to the requirements of the Tinois Abused and Neglected Child
Reporting Act (ANCRA), 325 ILCS 5/1 ef seg. DCFS operates the Child Abuse and
Neglect Tracking System (CANTS) in accordance with this mandate. Complaint { 14.
Under CANTS, any time the Child Abuse Hotline receives a telephone call alleging child
abuse, child welfare professionals with DCFS investigate the report and determine if the
person accused is responsible for the act. /d. $9] 15, 18. Specifically, the investigators
determine whether abuse is “indicated” based upon the existence of “credible evidence,”
or whether the report is “unfounded.” Jd. fj 20-22.

Shortly after April 11, 2001, defendant Sandra Lagrand, a DCP investigator,
conducted an investigation into the injury sustained by M.L. /d. J] 40, 41. Defendant
Roi Montalvo supervised Lagrand’s investigation. /d. 41. Via alleges that despite the
fact that there was no credible evidence against her, Lagrand recommended, and
Montalvo approved an “indicated” finding against her after determining that there was

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TONISHA VIA, )
)

Plaintiff, )

)

vy ) Case No. 03 C 3278

)

SANDRA LAGRAND, ROI )
MONTALVO, MARY ELLEN EADS, _ )
JOHN GOAD, and UNKNOWN )
EMPLOYEES OF DCFS, )
)

Defendants. )

MEMORANDUM OPINION AND ORDER
MATTHEW F, KENNELLY, District Judge:

Tonisha Via filed suit pursuant to 42 U.S.C. § 1983 against four employces and
officials of the Department of Child Protection (DCP) of the Illinois Department of
Children and Family Services (DCFS). Via alleges that she was falsely accused of
mistreating a child in her care and as a result was blacklisted from her profession as a
child care teacher. She attributes this to unconstitutional practices and procedures carried
out by the defendants, and to the fact that at least some of the defendants knowingly
made a false report against her. Via also asserts various state law claims against the
defendants. The defendants have moved to dismiss Via’s claims based on qualified
immunity. For the reasons stated below, the Court grants their motion in part and denies
it in part.

Factual Background

Via was employed as a child care teacher at KinderCare Learning Centers, Inc., in

(6