Eftekhara v. Ill. Dept. of Children & Fam. Serv.

• Decision Date: 03 June 1987
• Docket Number: No. 87 C 2293.,87 C 2293.
• Citation: 661 F. Supp. 522
• Parties: Amee EFTEKHARA, Plaintiff, v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendants.
• Court: U.S. District Court — Northern District of Illinois

661 F. Supp. 522

Amee EFTEKHARA, Plaintiff, v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendants.

No. 87 C 2293.

United States District Court, N.D. Illinois, E.D.

June 3, 1987.

COPYRIGHT MATERIAL OMITTED

Michael Weininger, David C. Kluever, Katz, Randall, Weinberg, Chicago, Ill., for plaintiff.

Thomas A. Ioppolo, Asst. Atty. Gen., General Law Div., Atty. Gen. of Illinois, Chicago, Ill., for defendants.

MEMORANDUM

LEIGHTON, Senior District Judge.

Plaintiff has filed a complaint for declaratory and injunctive relief under 42 U.S.C. § 1983, to redress violations of her rights under the Fifth and Fourteenth Amendments.¹ She alleges she was denied her due process and equal protection rights by the conduct of defendants during their investigation of alleged child abuse by plaintiff and their failure to comply with state statutes and rules promulgated by defendant Illinois Department of Children and Family Services ("DCFS" or "Department"). Defendants now move to dismiss, contending the complaint fails to state a claim upon which relief can be granted. The events described in plaintiff's complaint, which the court accepts as true for the purposes of this motion, are as follows.

I

Plaintiff was employed as a pre-school teacher at the TLC Academy, a day care center in Evanston, Illinois, duly licensed by DCFS. On November 9, 1986, DCFS received a report that a minor child, while in the care of TLC, was allegedly abused by plaintiff. DCFS has the power to revoke the license of any child care facility that fails to discharge an employee who is under investigation by the Department on charges of child abuse. TLC was informed by DCFS that it could not continue to employ plaintiff and she was discharged.

Under Ill.Rev.Stat. ch. 23, ¶ 2051 et seq., and administrative rules promulgated by DCFS, the Department is required to conduct its investigation within the following time limits. First, it is to determine within 60 days of the filing of the initial report whether there is some credible evidence of child abuse. If some credible evidence is found, an "indicated" finding is reported to the State Central Register ("SCR"), a unit of DCFS that maintains "indicated" reports of child abuse for a period of 5 years. A person who is the subject of an "indicated" report cannot be employed by a child care facility during that 5-year period. If no credible evidence is found during the initial investigation, an "unfounded" finding is reported.

If an investigation cannot be completed within 60 days, for good cause, the investigation period can be extended an additional 30 days, but a final written report determining whether the accusations are "indicated" or "unfounded" must be made no later than 90 days after the filing of the initial report. The accused must then be given timely notice of the DCFS decision within 5 days. The notice must inform the individual of DCFS's intended action, the reasons for it, the rules supporting it, and the right to review and appeal of the decision.

Plaintiff alleges that the investigation was completed in early December 1986, but no report was issued and she was informed on December 12, 1986 that the investigation was still pending. On March 3, 1987, she received a letter from DCFS stating that the initial report had been "indicated"; that is, some credible evidence of child abuse was found. The letter is dated February 20, 1987 and is postmarked February 27, 1987. Plaintiff was informed that she had until March 20, 1987 to appeal this decision.² This suit followed.

Plaintiff asserts that defendants deprived her of her due process rights under the Fifth Amendment and her equal protection rights under the Fourteenth Amendment by failing to complete and issue their report within the time frames indicated by its rules. She alleges this action caused her to be terminated from her position based on unsubstantiated allegations of child abuse, depriving her of employment in child care facilities. She seeks: (1) a declaration by this court barring DCFS from issuing an "indicated" report or revoking the license of any child care facility that employs plaintiff; (2) a preliminary and permanent injunction enjoining defendants from filing the report with the SCR or revoking the license of any child care facility that may employ plaintiff; and (3) a mandatory injunction compelling DCFS and SCR to expunge the report and all records related to the investigation and to deliver all reports and records to plaintiff.

Defendants move to dismiss, arguing, inter alia, that violation of a state law or procedure does not, in and of itself, state a federal constitutional claim and that none of the rule violations noted by plaintiff rise to the level of a constitutional claim. Moreover, defendants assert that under the Eleventh Amendment, this court has no jurisdiction to compel a state official to conform his conduct to state law. Finally, defendants contend plaintiff has not and will not be deprived of a prompt decision. She has yet to exhaust her administrative remedies and has the right to file suit in the Circuit Court of Illinois seeking review of any unfavorable administrative decision.

Plaintiff opposes this motion, asserting that the actions of the DCFS in issuing its decision 13 days later than the 90-day period provided in the rules deprived her of her due process rights. Plaintiff argues that this 90-day period is a mandatory requirement which has the effect of a statute of limitations and once this period expires, plaintiff has a property interest protected by the due process clause. In addition, she contends she has a property interest in continued employment and a liberty interest in pursuing her chosen occupation. Plaintiff concludes that the denial of procedural due process rights depriving a person of a property interest in continued employment is the proper subject of a § 1983 suit and that her complaint clearly sets out the basis of her claim and the process she claims was due.

II

In order to state a claim under § 1983, a plaintiff must allege: (1) that the conduct complained of was committed by a person acting under color of state law and (2) that the conduct deprived her of rights, privileges, or immunities secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1985); Toney-El v. Franzen, 777 F.2d 1224, 1226 (7th Cir. 1985). There is no question in this case that defendants acted under color of state law. The issue is whether defendants' conduct deprived plaintiff of rights, privileges, or immunities secured by the Constitution. Reading plaintiff's complaint broadly, she alleges both her equal protection and due process rights under the Fourteenth Amendment, and her due process rights under the Fifth Amendment, were violated by defendants' actions.

At the outset, it is clear that the Fifth Amendment's due process clause applies only to actions by the federal government. E.g. Rubacha by Rubacha v. Coler, 607 F.Supp. 477, 479 (N.D.Ill.1985). The actions plaintiff complains of here were taken by the state, not the federal government. Plaintiff's allegation that she was deprived of her due process rights under the Fifth Amendment must therefore fail.

In regard to her claims under the Fourteenth Amendment, in order to state a claim under the equal protection clause, a plaintiff must allege a classification of similarly situated persons caused by purposeful discrimination on the part of the agency. Muckway v. Craft, 789 F.2d 517, 523 (7th Cir.1986). It is beyond dispute that the mere violation of a state statute or rule does not on its face state a federal constitutional claim. Id. Plaintiff has failed to allege that other persons similarly situated had investigations completed in a timely manner. Her failure to allege that the agency's administration of its rules resulted in classification of similarly situated persons because of purposeful discrimination on the part of DCFS is fatal to her equal protection claim. Id.

The question remains whether procedural due process protections apply in this case. It is well established that the requirements of procedural due process apply only to deprivations included within the Fourteenth Amendment's protection of property and liberty. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Munson v. Fiske, 754 F.2d 683, 692 (7th Cir.1985). The court must look to the nature of the interest at stake to determine whether it falls within Fourteenth Amendment due process protections. Munson, 754 F.2d at 692.

A property interest in employment must stem from an independent source, such as state law, and must support a claim of entitlement that is more than a unilateral expectation of continued employment. Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th Cir.1986). The distinguishing characteristic of a property interest is that it creates an entitlement grounded in state law that cannot be removed except for cause. Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982). Jobs are deemed property only if the jobholder has a legitimate claim of entitlement to the position because of a state rule creating the entitlement. Salkin v. Washington, 628 F.Supp. 138, 140 (N.D.Ill.1986).

Plaintiff alleges no property interest in her employment, nor does she allege any facts from which this court could conclude that she may have such an interest. She was not a public employee with a tenured position who could be dismissed only for cause. Plaintiff points to no state rule or regulation creating an entitlement to her position.

Plaintiff relies on Wilson v. All-Steel Inc., 87 Ill.2d 28, 56 Ill.Dec. 897, 428 N.E.2d 489 (1981). Wilson holds that a limitations defense to a cause of action that has accrued vests a property right...