expungement. Id.

Following the expungement, Via filed suit against LaGrand, Montalvo, Eads, and Goad,
alleging that they violated her constitutional rights under 42 U.S.C. § 1983 and committed
intentional infliction of emotional distress under Illinois law. Via claimed that LaGrand and
Montalvo’s use of the credible evidence standard in indicating her for child abuse or neglect
violated due process. As to Goad and Eads, Via claimed that their maintenance and enforcement
of the credible evidence standard throughout the investigation and appeal of her case violated due
process. In addition, she alleged that the evidence against her failed to meet even the credible
standard and that indicating her for child abuse violated due process irrespective of the standard
that properly applies. Compl. 1.

All four defendants moved to dismiss Via’s claims based on qualified immunity and
Via’s failure to allege their personal involvement in any constitutional violation. The Court
granted the motion in part and denied it part. Via v. LaGrand, et al., No. 03 C 3278, 2003 WL
22901210, * 2 (N.D. Ill. Dec. 9, 2003). The Court first rejected defendants’ personal
involvement claims. Jd. The Court then moved on to the qualified immunity inquiry and ruled
that allegations in Via’s complaint were insufficient to defeat qualified immunity for Goad or
Eads because they were charged with relying on subordinates and therefore could not be held
liable for intentional deprivation of Via’s constitutional rights. Jd. at *5. With respect to
LaGrand and Montalvo, the Court ruled they could not be held liable for their use of the credible

evidence standard because the unconstitutionality of that standard was not yet clearly established


To raise an issue of fact as to whether Montalvo knew or should have known that
LaGrand had found no credible evidence against Via, Via points to LaGrand’s testimony that she
consulted daily with Montalvo. Def. Ex. G, LaGrand Dep. at 50-51. She also points to the fact
that as LaGrand’s supervisor, Montalvo reviewed her investigation and based on that review
recommended the filing of an indicated report against Via. Def. Ex. H, Montalvo Dep. at 25.
This is not enough to defeat qualified immunity for Montalvo. Via does not dispute Montalvo’s
assertion that he relies on the documentation and evidence gathered by subordinates during their
investigations in determining whether to indicate someone for child abuse or neglect. Pl. Resp.
to Def. 56.1(a)(3) Stmt. 172. As a supervisor in the DCFS, a large state agency, Montalvo is
“entitled to rely on the determinations of [his] colleagues.” J.H. ex rel. Higgin v. Johnson, 346
F.3d 788, 794 (7th Cir. 2003). Therefore, “absent awareness” that LaGrand’s investigation of
Via was “a sham,” Montalvo cannot be held liable for a baseless finding of child abuse or
neglect. Jd. Via has failed to raise a genuine issue of fact that Montalvo believed that LaGrand’s
recommendation to indicate Via was a sham. Montalvo is entitled to summary judgment on his
immunity defense.

C. Mary Ellen Eads

Via alleged in her first complaint that Eads, as a high ranking manager in DCF S, violated
her right to due process because she supported the indicated finding against Via. In ruling on the
motion to dismiss, this Court held that, under § 1983, “a plaintiff may not rely on the doctrine of
respondeat superior to hold supervisory officials liable for the misconduct of their subordinates”
and that, therefore, Eads was entitled to dismissal of the claim against her. Via, 2003 WL

22901210, at *5 (quoting Doyle IZ, 305 F.3d at 614), Via has since amended her complaint to



immunity, a court engages in a two-step inquiry. Wilson v. Layne, 526 USS. 603, 609 (1999).
First, the plaintiff must present evidence that, taken in the light most favorable to the plaintiff,
would allow a reasonable fact finder to determine that she has been deprived of a constitutional
right. Id; see also Saucier v. Katz, 533 US. 194, 201 (2001). If the plaintiff satisfies this
requirement, then the Court must determine whether the particular constitutional right was
clearly established at the time of the alleged violation. Wilson, 526 U.S. at 609.

A Sandra LaGrand

Via alleges that LaGrand violated her constitutional right to due process. This claim is
based on the assertion that LaGrand issued an indicated report of neglect or abuse despite
knowing that there was no evidence to suggest that Via abused or neglected Madison L. Am.
Compl. {[ 49(a). In denying defendants’ motion to dismiss, this Court found that Via made
sufficient allegations to overcome the immunity defense at that stage. Via, 2003 WL 22901210,
at *4, The question now facing the Court is whether Via has presented enough evidence to allow
a reasonable fact finder to find in her favor.

In her response to defendants’ motion for summary judgment, Via relies heavily on
LaGrand’s testimony before the ALJ in 2002. The transcript of LaGrand’s testimony raises a
genuine issue of fact as to whether she indicated Via without any evidence of abuse or neglect.
While examining LaGrand at the hearing, Via’s attorney, Kevin Doherty, asked:

Mr. Doherty: Tell me what was this act of negligence or neglect that you determined
Tonisha did?

Ms. LaGrand: Based on information that we had got from the doctor, that’s why the case

was indicated on Tonisha.



at the time of the investigation of Via.' Jd. at *4. The Court did, however, direct LaGrand and
Montalvo to answer Via’s § 1983 claim based on the theory that they indicated her without any
supporting evidence at all. /d. Finally, the Court directed all four defendants to answer Via’s
state law claims. Jd.

After the Court’s ruling on the motion to dismiss, Via amended her complaint to add
allegations against Goad and Eads in an effort to defeat qualified immunity. She now alleges that
their resistance to expungement even after finding out that there was no credible evidence against
Via violated due process. Am. Compl. ff] 9-10.

Analysis

Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). In considering a motion for summary judgment, the Court views the facts in
the light most favorable to the non-moving party and draws reasonable inferences in favor of that
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

dL Qualified Immunity

Defendants assert that they are entitled to qualified immunity. Qualified immunity
shields government actors from liability when performing discretionary functions as long as they
do not violate “clearly established statutory or constitutional rights of which a reasonable person
would have known.” Berman v. Young, 291 F.3d 976, 983 (7th Cir. 2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1984)). To determine whether a defendant is entitled to qualified

'The Seventh Circuit held that the credible evidence standard was unconstitutional in
2002, one year after the investigation of Via. Doyle v. Camelot Care Centers, Inc., 305 F.3d 603,
614 (7th Cir. 2002) (Doyle H).



anything in the record that would support that claim. Def. Am. Mot. at 13. Taking the evidence
in the light most favorable to Via, a reasonable jury could therefore find that LaGrand violated
her constitutional right to due process.

This does not, however, end the Court’s inquiry into whether to grant LaGrand qualified
immunity. The Court must also decide whether the constitutional right allegedly violated by
LaGrand was clearly established at the time of the investigation of the cause of Madison’s broken
leg. Wilson, 526 U.S. at 609. The Court already decided this issue in the motion to dismiss. As
discussed more fully in that decision, signing a report indicating someone for child abuse or

ee,

neglect without any supporting evidence is conduct ““so egregious that no reasonable person
could have believed that it would not violate clearly established rights.” Via, 2003 WL
22901210, at *5 (quoting Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001)). In other
words, any reasonable person in LaGrand’s position would have known in 2001 that indicating
Via for abuse or neglect in the absence of evidence of abuse or neglect was a clear violation of
Via’s right to due process. For these reasons, the Court rejects LaGrand’s motion for summary
judgment on the immunity defense.

B. Roi Montalvo

Via makes essentially the same claim of deprivation of due process against Montalvo as
she did against LaGrand. The case against Montalvo is different, however, because Montalvo
was LaGrand’s supervisor; he did not actually perform any investigative work. Pl. Resp. to Def.
56.1(a)(3) Stmt. J 169. Via bases her claim against Montalvo on the assertion that he knowingly

supported and encouraged LaGrand’s decision to indicate Via without any supporting evidence.

Pl. Resp. at 13.


Minute Order Fors (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judg Sitting Judge if Oth
nar Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 03 C 3278 DATE 11/10/2004
CASE Via vs. Langrand
TITLE

of the motion being presented.)

{Iu the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nawure

MOTION:

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

GB) G Answer brief to motion due___- Reply to answer brief due

(4) o Ruling/Hearingon set for_— at

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—s set for at

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__setfor__ at
(7) a Trial[set for/re-set for}on at

(8) a [Bench/Jury trial] [Hearing] held/continued to____ at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) Local Rule 41.1 CFRCP41(a\(1) 1 FRCP41(a)(2).

filing the final pretrial order. The final pretrial conference is set for 12/2/04 at 1:30 p.m.

(dl) [For further detail see order attached to the original minute order.]

qo) [Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
the Court grants defendants’ motion for summary judgment (45-1) in part and denies it in part. Summary
judgment is granted in favor of defendants Motalvo, Eads, and Goad on plaintiff's § 1983 claim and in
favor of Goad on the state law claims. The motion is otherwise denied. A date has already been set for

No notices required, advised in open court

No notices required. _
number of novices

Document
Number

Notices mailed by judge’s stat. NOV ] 5 2

Notified counsel by telephone.

date docketed

nase

ocketing deputy initials

Y | Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

date mailed notice

courtroom
OR deputy’s -
y aN et PP tear ene
initials f 24 nad
Date/time received in

central Clerk's Office mailing deputy initials

a)



support the claims. Contrary to the defendants’ suggestions, however, Via does not have to
satisfy Illinois pleading requirements. In fact, the Seventh Circuit has stated that, “no one thinks
that the Illinois rules of pleading are binding on the federal courts.”* AXA Corporation Solutions
y. Underwriters Reinsurance Corp., 347 F.3d 272, 277 (7th Cir. 2004). Rather, pleading in
federal courts is governed by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 requires
only notice pleading. Jd. Under Rule 8, it is well settled that once it arrives in federal court, “a
suit should not be dismissed if it is possible to hypothesize facts, consistent with the complaint,
that would make out a claim.” Petri v. Gatlin, 997 F. Supp. 956, 965 (N.D. Ill. 1997) (quoting
Graehling v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995)). In her amended complaint,
Via alleges in counts two through four that defendants’ actions in indicating her without
evidence, communicating that finding to others, and refusing her efforts at expungement defamed.
her and caused her severe emotional and economic damage. This is sufficient to make out her
state law claims; defendants’ contrary argument, which consists of two sentences with no
supporting authority, is insufficient to warrant the Court’s consideration.

Defendants also argue that Via’s state law claims fail because Illinois law grants DCFS
investigators immunity from civil liability. Def. Mot. at 15. Though it is conceivable that this
argument may have merit, defendants have advanced it as an afterthought, devoting merely a one
sentence footnote to it, again without citing authority. Jd. n. 7. The Court will not address such a

perfunctory argument.

Actually, in this Court’s experience, many lawyers on the defense side think, or at least
proffer, exactly that. Their beliefs in this regard, however, are unreasonable.

11



allege that Eads not only supported the decision of LaGrand, but also exercised her own
judgment in reviewing the investigation, seeing there was no credible evidence against Via, and
nevertheless resisting her efforts at expungement. Am. Compl. { 10.

The additional allegations against Eads do not alter the outcome of the qualified
immunity inquiry. Via still does not dispute that Eads was not in any way involved in the
decision to indicate her for child abuse. Pl. Resp. to Def. 56.1(a)(3) Stmt. { 241. Via also does
not dispute that Eads had no role in reviewing her case once it was appealed to the ALJ. Jd. 4
244-46. Rather, the basis of the claim against Eads is that she rejected the advice of DCFS”
attorney that there was not enough evidence against Via and chose to resist Via’s request for
expungement despite the fact that there allegedly was not enough evidence to sustain a charge.
Pl. Resp. at 14. Via, however, provides no evidence to support this allegation. The only citation
to the record that Via provides to support for this allegation is to Via’s attorney’s opening
statement in the administrative hearing. Jd. The words of an opening statement, without more,
do not raise a genuine issue of fact as to whether Eads violated Via’s due process rights. Eads is
entitled to summary judgment on the § 1983 claim.

Dz John Goad

Via does not contest defendant John Goad’s request for summary judgment. Pl. Resp. at
1. Therefore, the Court grants summary judgment in his favor on both the federal and state law
claims.

2 State law claims
The defendants argue that Via’s state law claims should be disposed of because, under

Illinois’ fact pleading requirements, Via failed to plead sufficient facts in her complaint to

10


Mr. Doherty: I heard your answer, but I don’t understand it in relation to my question, so
Pll ask it again, What was this act that Tonisha did that was an act of neglect you determined?

Ms. LaGrand: That during the time that she was changing the diaper that the incident
occurred.

Mr. Doherty: Well what did she do, what was the act of neglect?

Ms. LaGrand: I don’t know.

Mr. Doherty: Well you already told us there was no direct action [no action of abuse],
right?

Ms. LaGrand: Correct.

Mr. Doherty: So you didn’t find any blatant acts of disregard of caretaker responsibility
done by Tonisha, did you?

Ms. LaGrand: No.

Mr. Doherty: Isn’t that how the Department defines neglect?

Ms. LaGrand: Correct.
Def. Ex. B, Admin. Hearing at 118-19. And later in the hearing, Via’s attorney asked:

Mr. Doherty: So you just concluded that the last one to be with the child [Via], she must
have been the one who did it, is that basically what we are talking about here?

Ms. LaGrand: Yes.
Id. at 124. Based on this testimony, LaGrand arguably admitted under oath that there was no
evidence to support an indication against Via. LaGrand presents no contrary evidence in her
amended motion for summary judgment. The motion asserts that Via’s accusation that LaGrand

issued an indicated report of child abuse without evidence “is baseless” but fails to cite to


indicated report of abuse of Madison against Via, and Montalvo approved this report. Compl. {
42. Via alleges that despite the fact that there was no credible evidence against her, LaGrand
recommended, and Montalvo approved, an “indicated” finding against her. Jd. DCFS notified
KinderCare of the finding, and Via was fired from her job there. /d. § 43.

Under CANTS, following the making of an indicated report, a final report is entered into
acentral register. 325 ILCS 5/7.7. The accused is not afforded an opportunity for a hearing
before the report is entered into the register. Compl. {| 27(d). After receiving notice of an
indicated report, the accused may appeal to DCFS for an administrative hearing before an
Administrative Law Judge. Id. 24. The ALJ uses a preponderance of evidence test to
determine guilt, as opposed to the credible evidence standard employed throughout the
investigation. Id. 25. If the subject’s appeal is successful, the DCFS Director makes a final
decision whether the report should be expunged from the central register. Jd, The indicated
report remains in the register through the entire appeal process. Id. { 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. Via initiated the appeals process and appeared
before an ALJ in October, 2002, approximately seventeen months after the initial report. Compl.
946. Via alleges that the ALJ repeatedly advised DCFS during the hearing to expunge the report
from its records but that the Assistant Associate Deputy Director for Child Protection in Cook
County, Mary Ellen Eads, refused to expunge the report. Id. Via further alleges that John Goad,
the Associate Deputy Director for Child Protection, supported Eads’ decision to resist
expungement. The report was ultimately expunged on January 16, 2003, exactly twenty months

after the indicated report was made, after the ALJ issued a written recommendation for



Facts and Procedural History

Via was employed as a child care teacher at KinderCare Learning Centers, Inc., in Elgin,
Illinois. On the afternoon of April 11, 2001, Via was caring for a six-month old child, Madison
L., who was enrolled at KinderCare. Via claims that Madison L. was unusually upset that
afternoon and had demonstrated similar behavior the previous day. Compl. 35, 36. While
changing Madison’s diaper, Via noticed that the baby was experiencing pain in her left leg. Via
notified another teacher and the facility’s director, who also examined the girl and decided to call
Madison’s mother. Madison’s mother picked up her daughter and took her to a hospital, where it
was determined that she had a broken left leg. Id. 4 39.

DCES has procedures by which it investigates, reports and tracks allegations of child
abuse pursuant to the requirements of the Illinois Abused and Neglected Child Reporting Act
(“ANCRA”), 325 ILCS 5/1 et seq. DCFS operates the Child Abuse and Neglect Tracking
System (“CANTS”) in accordance with this mandate. Under CANTS, any time the Child Abuse
Hotline receives a phone call alleging child abuse, child welfare professionals with DCFS
investigate the report and determine if the person accused is responsible for the act. Specifically,
the investigators determine whether abuse is “indicated” based upon the existence of “credible
evidence,” or whether the report is “unfounded.”

We are not provided with information indicating how DCFS became involved in
investigating Madison’s broken leg. Shortly after April 11, 2001, however, defendant Sandra
LaGrand, a DCP investigator, conducted an investigation into the injury sustained by Madison.
Defendant Roi Montalvo supervised LaGrand’s investigation. Allegedly applying DCFS policies

and procedures, Defendant LaGrand determined that there was credible evidence to support an


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

EASTERN DIVISION
TONISHA VIA, )
)
Plaintiff, )
)
v. ) Case No. 03 C 3278
)
SANDRA LAGRAND, ROI )
MONTALVO, MARY ELLEN EADS, _) .
JOHN GOAD, and Unknown employees ) ‘
of DCFS, ) ‘
)
Defendants. )

MEMORANDUM OPINION AND ORDER

MEMORANDUM OFLNIh eee

MATTHEW F. KENNELLY, District Judge:

Tonisha Via filed suit against four employees and officials of the Department of Child
Protection (“DCP”) of the Illinois Department of Children and Family Services (“DCFS”)
pursuant to 42 U.S.C. § 1983 and Illinois law. 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, and that the defendants also should be held liable for intentional infliction of emotional
distress. Defendants have moved for summary judgment on Via’s federal law claims based on
qualified immunity and on her state law claims based on immunity and insufficient pleading.

For the reasons stated below, the Court grants summary judgment in favor of Montalvo,
Goad, and Eads’ favor on Via’s § 1983 claim but denies summary judgment for LaGrand on the

§ 1983 claim as well as on the state law claims against all four defendants.



Conclusion
For the foregoing reasons, the Court grants defendants’ motion for summary judgment
[docket no. 45] in part and denies it in part. Summary judgment is granted in favor of defendants
Montalvo, Eads, and Goad on plaintiff's § 1983 claim and in favor of Goad on the state law
claims. The motion is otherwise denied. A date has already been set for filing the final pretrial

order. The final pretrial conference is set for 12/2/04 at 1:30PM.

Date: November 10, 2004

12