Mann v. Vogel

• Decision Date: 22 February 2013
• Docket Number: No. 11–1971.,11–1971.
• Citation: 707 F.3d 872
• Parties: Lorene MANN, Plaintiff–Appellant, v. Meldon VOGEL, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

707 F.3d 872

Lorene MANN, Plaintiff–Appellant,

v.Meldon VOGEL, et al., Defendants–Appellees.

No. 11–1971.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 30, 2012.

Decided Feb. 22, 2013.

Elizabeth J. Cervantes (submitted), Attorney, Bozeman, Neighbour, Patton & Noe, Moline, IL, for Plaintiff–Appellant.

Christopher M.R. Turner, Attorney, Office of the Attorney General, Chicago, IL, for Defendants–Appellees.

Before BAUER, FLAUM, and WOOD, Circuit Judges.

BAUER, Circuit Judge.

This case involves complaints of due process violations against employees of the Illinois Department of Children and Family Services (DCFS). In August 2008, DCFS initiated an investigation after receiving complaints of child abuse and neglect against Lorene Mann and her day care center. During the investigation, Mann stopped operating her day care center pursuant to a protective plan agreed to between Mann and DCFS. The investigation led to a finding that Mann had failed to provide proper supervision of the children at the day care center, in violation of the Illinois licensing standards for day care facilities. DCFS recommended that Mann's day care license be revoked but, after an informal review, allowed Mann to enter into corrective plan to rectify the violation. Shortly thereafter, Mann filed an appeal of DCFS's conclusion that she violated the licensing standards; the Administrative Law Judge granted her request and expunged the finding.

Mann then filed suit against the DCFS employees involved and the State of Illinois, contending that she was deprived of a protected liberty interest without due process during the pendency of the investigation and review.

The district court dismissed the State of Illinois on sovereign immunity grounds; Mann does not appeal that decision. The district court also granted the DCFS employees' motion to dismiss, concluding that Mann's allegations were insufficient to state a claim for a due process violation. Mann amended her complaint; the district court dismissed that complaint with prejudice.

We agree with the district court that Mann did not adequately plead a violation of due process rights and affirm the dismissal of the suit.

I. BACKGROUND

Mann owns and operates the Rainy Day Care Center (the Center) out of her personal residence in Rock Island, Illinois. On August 20, 2008, Mann temporarily left the Center to purchase groceries for the home. The Amended Complaint is not clear as to how many children were at the Center when Mann left, but her husband, a licensed day care provider, and Sharon Thompson, a newly-hired day care assistant, remained at the Center to supervise the children. While Mann was gone, her husband left the children with Thompson in the basement level of the home while he was absent for approximately twenty to thirty minutes. While Mann's husband was gone, Thompson left the basement and went to the first floor to prepare food for the children. She remained out of the basement for approximately eight to ten minutes. During the time that Mann's husband and Thompson were both out of the basement, one child hit another child with a highchair tray, which caused minor bruising to the other child's face. When Mann, Mann's husband, and Thompson discovered this or how they reacted to the incident is not clear from the Amended Complaint.

The next day, on August 21, a complaint was made to DCFS about the child's injuries. DCFS opened an investigation and visited the Center later that day in accordance with the rules governing complaints against licensed child care facilities in Illinois. See89 Ill. Admin. CodeE § 383.35(b). The initial investigation revealed that Thompson was working without the completion of a background search or a medical evaluation. Meldon Vogel, a Licensing Supervisor for DCFS, determined that Mann had failed to provide proper supervision to the children at the Center by leaving them in the care of Thompson, an unlicensed assistant. Instead of immediately moving to close the Center or revoke Mann's license, Vogel presented Mann with a protective plan. See§ 383.45.

Mann entered into the protective plan with DCFS, which shut down the Center and required that the children be removed from the Center.¹ The protective plan also prohibited Mann and her husband from providing any child care services until the conclusion of a full DCFS investigation and the entry of a corrective plan. And at some point, DCFS entered Mann's name into the Illinois state database concerning child abuse and neglect based on its finding that Mann had failed to properly supervise the children at the Center; the Amended Complaint does not specify when this occurred.

An investigation of a licensed child care facility is to be completed within thirty days after receipt of a complaint; however, it may be extended for an additional thirty days upon written notice to the licensee. See§ 383.35(b). On September 11, 2008, DCFS formally extended its investigation by an additional thirty days.

On December 19, 2008, DCFS completed its investigation into the complaint and concluded that the alleged licensing violation was “substantiated.” See§ 383.35(d) (“At the conclusion of the licensing complaint investigation, the licensing representative shall make a determination and enter a finding of ‘substantiated’ or ‘unsubstantiated’ with regard to each allegation in the complaint and shall document these findings.”). In Illinois, a substantiated finding may also be referred to as an “indicated” report of child abuse or neglect. See Dupuy v. Samuels ( Dupuy I ), 397 F.3d 493, 497 (7th Cir.2005).

On January 6, 2009, Richard Sherrard, a DCFS Licensing Supervisor, conducted a supervisory review of the determination. See89 Ill. Admin. CodeE § 383.35(g). Mann attended the supervisory review but was not represented by counsel. On January 12, 2009, Sherrard determined that the indicated lack of adequate supervision was a violation of the Illinois licensing standards and recommended that Mann's day care license be revoked.

On February 18, 2009, approximately six months after the initial complaint, Kim Morgan, a DCFS Interim Central Region Licensing Administrator, granted Mann an informal review of the indicated report and of Sherrard's recommendation that Mann's license should be revoked. On March 6, 2009, Morgan determined that Mann had violated the licensing standards by failing to provide adequate supervision but concluded that a corrective plan should be instituted rather than a revocation of Mann's license. A corrective plan is a document that lists the violations a licensee or permit holder must correct and a time frame for correcting the violations. § 383.50(a). (It is not required when the supervising agency determines the violations cannot be corrected or an administrative order of closure has been issued. § 383.50(c)-(d).) Mann entered into a corrective plan with DCFS on March 20, 2009.

Sometime after Morgan's decision, Mann filed an appeal to have the indicated report expunged and her name removed from the central database. See § 336.80. On April 7, 2009, DCFS conducted a hearing of Mann's appeal.

The Administrative Law Judge ruled in Mann's favor and expunged the indicated finding of inadequate supervision.

On April 6, 2010, Mann initiated a lawsuit in the Rock Island Circuit Court against Vogel, Sherrard, and the State of Illinois for indemnifying Vogel and Sherrard in accordance with 5 Ill. Comp. Stat.. 350/2.² Mann brought her claim under 42 U.S.C. § 1983 and alleged that the Defendants improperly terminated the operation of the Center and violated her constitutional rights by depriving her of a protected liberty interest without due process. The case was removed to the U.S. District Court for the Central District of Illinois on May 12, 2010.

Vogel and Sherrard filed a Rule 12(b)(6) motion to dismiss, contending that Mann failed to state a claim against them and, alternatively, that they were entitled to qualified immunity. On January 24, 2011, the district court granted the motion to dismiss without prejudice, which provided Mann with an opportunity to cure her complaint's deficiencies.

Mann filed her Amended Complaint on January 26, 2011, in which she alleged that the Defendants violated her due process rights in the following respects: (1) issued an improper protective plan and indefinitely closed the Center without a hearing before she agreed to the plan or could contest the plan's terms; (2) failed to issue an order of closure directing her to immediately stop operating the facility; (3) failed to initiate proceedings to revoke her license within ten days of a finding that the Center jeopardizes the health, safety, morals, or welfare of children; (4) failed to conduct a timely investigation of the complaint; and (5) improperly and indefinitely closed the Center as a result of a meritless allegation.³

The Defendants filed a second motion to dismiss, which the district court granted with prejudice on March 29, 2011. The district court concluded that Mann was not unconstitutionally deprived of a protected liberty interest as it relates to the imposition of the protective plan. The district court also looked to whether Mann was deprived of due process when she was prohibited from running her day care facility during the pendency of the DCFS investigation; the court concluded she was not.

On appeal, Mann contends that the district court erred in dismissing her Amended Complaint, claiming she had sufficiently pleaded a cause of action for a due process violation.

II. DISCUSSION

We review de novo the district court's dismissal of Mann's Amended Complaint pursuant to Rule 12(b)(6), construing the allegations in the light most favorable to Mann, accepting all well-pleaded facts as true, and drawing all reasonable inferences in favor of Mann. See Citadel Grp. Ltd. v. Wash. Reg'l Med. Ctr., 692 F.3d 580, 591 (7th Cir.2012). To survive the Defendants' motion to dismiss, Mann's Amended...