Lоrene MANN, Plaintiff-Appellant, v. Meldon VOGEL, et al., Defendants-Appellees.
No. 11-1971.
United States Court of Appeals, Seventh Circuit.
Decided Feb. 22, 2013.
Submitted Oct. 30, 2012.
The title of a work of intellectual property can infringe another author‘s mark only if the title falsely implies that the latter author is its origin. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). The titles of Truman Capote‘s novella Breakfast at Tiffany‘s, and the movie of the same name, do not infringe the rights of Tiffany & Co. because no reasonable reader or moviegoer thinks that the jeweler is the source of the book or the movie. (We do not consider the possibility of relief under dilution statutes.) Dastar held that trademark law cannot be used to obtain rights over the content of an artistic work; that would amount to an indefinite extension of a copyright. Titles of songs and movies cannot be copyrighted (see Peters, 692 F.3d at 635-36;
AFFIRMED.
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 hаd 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.
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 operatеs 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 cоmplaints against licensed child care facilities in Illinois. See
Mann entered into the protective plan with DCFS, which shut dоwn 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
On January 6, 2009, Richard Sherrard, a DCFS Licensing Supervisor, conducted a supervisory review of the determination. See
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.
Sometime after Morgan‘s decision, Mann filed an appeal to have the indicated report expunged and her name removed from the central database. See
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
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 Dеfendants violated her due process rights in the following respects: (1) issued an improper protective plan and indefinite-ly 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 closеd the Center as a result of a meritless allegation.3
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 Complaint must contain sufficient factual information “to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal citation omitted).
“The Due Process Clause of the Fifth and Fourteenth Amendments prohibits deprivation of life, liberty, and property without due process of law.” Matamoros v. Grams, No. 12-2045, 2013 WL 323075, at *4-5, 2013 U.S.App. LEXIS 1965, at *13 (7th Cir. Jan. 29, 2013) (citing
A. Protected Liberty Interest
We first look to whether Mann has adequately alleged a protected liberty interest. Mann‘s Amended Complaint says that she was “deprived ... of her liberty and/or property interest in continued business operation in her chosen field of occupation and the maintenance of her good reputation in the local community in violation of her rights under the Fourteenth Amendment of the United States Constitutiоn.” We have previously stated:
It is well-settled that an individual has no cognizable liberty interest in his reputation; consequently, when a state actor makes allegations that merely damage a person‘s reputation, no federally protected liberty interest has been implicated. See Paul v. Davis, 424 U.S. 693, 711-12 [96 S.Ct. 1155, 47 L.Ed.2d 405] (1976); Hojnacki v. Klein-Acosta, 285 F.3d 544, 548 (7th Cir.2002). Indeed, “mere defamation by the government does not deprive a person of liberty protected by the Fourteenth Amendment, even when it causes serious impairment of one‘s future employment.” Hojnacki, 285 F.3d at 548 (internal quotations and citations omitted). Rather, it is only the “alteration of legal status,” such as governmental deprivation of a right previously held, “which, combined with the injury resulting from the defamation, justifies the invocation of procedural safeguards.” Paul, 424 U.S. at 708-09 [96 S.Ct. 1155]; Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir.2001). As such, when a state actor casts doubt on an individual‘s “good name, reputation, honor or integrity” in such a manner that it becomes “virtually impossible for the [individual] to find new employment in his chosen field,” the government has infringed upon that individual‘s liberty interest to pursue the occupation of his choice. Dupuy I, 397 F.3d at 503 (quoting Doyle, 305 F.3d at 617).
This has become known as the “stigma plus” test. See Schepers v. Comm‘r, Ind. Dep‘t of Corr., 691 F.3d 909, 914 (7th Cir.2012) (“The need to show alteration of legal status along with some stigmatic or reputation injury is commonly referred to as the ‘stigma plus’ test.” (quoting Khan, 630 F.3d at 534 (internal quotation marks omitted))).
Here, the protective plan, which we presume described that Mann was the subject of an investigation into child abuse or neglect, prohibited Mann from operating the Center. Likewise, the finding that the indicated report of a lack of adequate supervision was a violation of the licensing standards labeled Mann as a violator of the Illinois child care laws and regulations and also prevented her from operating the Center. We believe Mann has sufficiently pleaded the requirements of the “stigma plus” test—(1) damage to her good name, reputation, honor, and integrity (e.g., being labeled as a possible child abuser), and (2) the inability to pursue the occupation of her choice because of the label (i.e., employment in the child care field)—to put a protected liberty interest at issue. See Dupuy I, 397 F.3d at 503; Munson v. Friske, 754 F.2d 683, 693 (7th Cir.1985).
B. Deprivation of a Protected Liberty Interest
A deprivation of a protected Fourteenth Amendment liberty interest occurs when “a right or status previously recognized by state law [is] distinctly altered or extinguished.” Paul, 424 U.S. at 711, 96 S.Ct. 1155; see Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 753-55 (7th Cir.2012).
C. Due Process
The final issue is whether the deprivation occurred without due process. We balance three factors to answer that question: “[f]irst, the private interest that [was] affected by the official action; second, the risk of еrroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In this case, we balance Mann‘s right to employment in the field of her choice, with the procedures afforded to her and the additional procedures she claims were necessary, in conjunction with the state‘s strong interest in protecting children from abuse and neglect.
1. The Protective Plan
Mann contеnds that she was entitled to a hearing before the imposition of the protective plan and another after she entered into the plan in order to contest its terms. A protective plan is presented to the operator of a licensed day care facility when:
(1) a pending formal child protection investigation names the individual as an alleged perpetrator;
(2) the licensing representative determines that contact between the children in care and the individual presents an ongoing risk to the children, but that the health, safety and best interests of the children do not require closurе of the program or facility...; or
(3) after a monitoring visit, the licensing representative documents a violation that requires a protective plan to restrict contact between the children in care and the individual to assure the health, safety and best interests of the children while the licensee is provided an opportunity to correct the violation.
It is similar to a safety plan, which is often offered in the context of parental child abuse or neglect. See Dupuy v. Samuels (Dupuy II), 465 F.3d 757, 760 (7th Cir. 2006) (“But sometimes, in lieu of immediately removing the child from its parents, the state will offer parents the option of agrеeing to a ‘safety plan,’ under which restrictions short of removal are imposed pending completion of the state‘s investigation into abuse or neglect.“). We have described a safety plan as an optional form of relief akin to an “interim settlement agreement pending the outcome of [an] investigation;” “[i]t imposes no obligation on anybody.” Id. at 761. The same is true of a protective plan. The individual is not required to enter into the protective plan, and the individual can opt out of it at any point. Thus, Mann‘s contention that she was entitled to a hearing before the issuance of the protective plan and a hear-
We were clear in Dupuy II why a hearing before entering into a plan is not required: “There is no right to a hearing when no substantive right has been infringed or is threatened with being infringed. The state does not force a safety plan on the parents; it merely offers it. Parents are entitled to a hearing if their parental rights are impaired, and the offer of settlement no more impairs those rights than a prosecutor‘s offer to accept a guilty plea impairs the defendant‘s right to trial by jury.” Id. If anything, the point is stronger in this case because a parent‘s right to “familial relations” is more significant than the right to pursue employment in the field of one‘s choice. See Doe v. Heck, 327 F.3d 492, 520 (7th Cir.2003) (stating that courts apply “some form of heightened scrutiny” when analyzing claims alleging a violation of the fundamental right to familial relations). The safety of one‘s children in the care of another is of the utmost importance, and the state must work quickly to avoid possible abuse or neglect. See Siliven v. Ind. Dep‘t of Child Servs., 635 F.3d 921, 928 (7th Cir.2011) (explaining that a child may be removed from his home if the facts and circumstances known to the state demonstrate that the child is in immediate physical danger). Accordingly, Mann was not entitled to a hearing before agreeing to the protective plan.
Furthermore, Mann was not entitled to a hearing to contest the protective plan‘s terms. Mann voluntarily agreed to stop operating the Center, and her consent rendered a subsequent hearing to contest the plan‘s terms unnecessary. See Dupuy II, 465 F.3d at 761-62 (“Because the safety plan is voluntary, no hearing of any kind is necessary; hearings are required for deprivations taken over objection, not for steps authorized by consent.“); see also Smith v. Williams-Ash, 520 F.3d 596, 599-600 (6th Cir.2008) (adopting the reasoning described in Dupuy II). But in any event, Mann‘s assertion that she had no opportunity to have the protective plan‘s requirements reviewed is incorrect. See
To the extent Mann argues in her brief that the protective plan was not presented to her in a way that suggested it was voluntary, the Amended Complaint does not describe how she was coerced into the protective plan. That DCFS told her “it would be in the best interest to cooperate with DCFS‘s actions” does not mean DCFS “coerced” her into a settlement. It was merely threatening to enforce the rights it was legally entitled to enforce, which we have found to be permissible. See Dupuy II, 465 F.3d at 762. We recognize that a threat may be coercive if the agency has no lawful authority to make the threat (especially if it involves one‘s own children, see, e.g., Hernandez v. Foster, 657 F.3d 463, 482-84 (7th Cir. 2011); Siliven, 635 F.3d at 926; Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123, 1125 n. 1 (3d Cir. 1997)), but DCFS was acting on a complaint regarding events that Mann acknowledges occurred. It was not acting “without a suspicion of neglect or abuse“—to be discussed further below. Cf. Hernandez, 657 F.3d at 482-84. The facts alleged here do not support an inference
Mann‘s allegation that she was entitled to a hearing before agreeing to the protective plan and after to contest its terms cannot survive the motion to dismiss.
2. The Investigation, Review, and Expungement Appeal
Each of the remaining allegations relates to procedures Mann believes were required during the pendency of the investigation, review, and subsequent expungement appeal, but they all fail to state a claim that Mann‘s due process rights were violated.
Mann says that due process required the Defendants to (1) issue an order of closure directing her to immediately stop operating the facility, and (2) initiate proсeedings to revoke her license within ten days of a finding that the Center jeopardizes the health, safety, morals, or welfare of children. These claims find their roots in
Whenever the Department expressly finds that the continued operation of a child care facility ... jeopardizes the health, safety, morals, or welfare of children served by the facility, the Department shall issue an order of closure directing that the operation of the facility terminates immediately, and, if applicable, shall initiate revocation proceedings under Section 9 within ten working days.
(emphasis added).
Mann contends that the Defendants neither issued an order of closure nor initiated revocation proceedings against her. We assume that to be true. Mann, however, ignores two important words in the provision: expressly finds. As the district court concluded in its original motion to dismiss order, Mann does not allege that such findings were ever made. We presume this may have occurred on December 19, 2008, when DCFS determined the complaint was “substantiated,” or on January 12, 2009, when Sherrard issued his supervisory review decision, but even so, Mann does not allege that the Defendants were immediately required to close the Center or revoke Mann‘s license at any point. That is because
In fact, Mann may have actually benefitted from the procedures she was afforded during the entire process. The protective plan, the additional reviews, the corrective plan, and the expungement appeal were all in place to prevent the closure of the Center or the revocation of her license, which she now claims should have occurred. Mann‘s contention is circular: DCFS should have done more before preventing her from operating the Center, yet it should have permanently prevented her from operating the Center before providing her with opportunities to avoid that result. In short, we believe the procedures in place were sufficient to provide Mann an opportunity to be heard and prevent an erroneous deprivation of a protected liberty interest. See Dupuy I, 397 F.3d at 504 (“Due Process ... ‘is flexible and calls for such procedural protections as the particular situation demands.‘” (quoting Hudson v. City of Chi., 374 F.3d 554, 559 (7th Cir.2004))).
We move to the sufficiency of Mann‘s claim that the Defendants failed to timely complete its investigation of the complaint against her. This allegation invokes
In this case, which deals with allegations of child abuse and neglect, we do not believe that the sixty-day delay can support a due process violation finding. All parties benefit from a thorough review of a child abuse complaint. DCFS has a duty to ensure that children will not be subjected to abuse or neglect when they are in the care of a day care provider, and day сare providers should not have a “substantiated” or “indicated” finding entered against them without a proper investigation and review. See Dupuy I, 397 F.3d at 507-09 (affirming the district court‘s injunction requiring DCFS to provide child care workers with an opportunity to respond to allegations before a report is indicated and disclosed because the injunction‘s requirements adequately balanced the competing interests of the state and the workers). An additional sixty days to make these determinations and balance the countervailing concerns is not an unreasonable amount of time.
Moreover, despite the delay, thе facts as pleaded demonstrate that Mann was given an opportunity to be heard at the January 6, 2009 supervisory review, which was completed within the time frame required. See
That leaves Mann‘s allegation that the Defendants improperly and indefinitely closed the Center based on a meritless allegation. But even when viewed in the light most favorable to Mann, the facts alleged demonstrate that a child was hit in the face and injured by another child when the only two licensed day care providers at the Center were out of the room. As we have stated, Mann acknowledges that these events occurred and that they formed the basis of the complaint to DCFS. The complaint was not without merit. Cf. Hernandez, 657 F.3d at 481-82 (stating that the DCFS investigator did not have a reasonable suspicion that the child “had been abused or was in imminent danger of abuse“).
Insofar as Mann claims that the complaint was meritless because the indicated finding was later expunged, that does not
As a final matter, Mann attempts to shoehorn the allegations in her Amended Complaint into an argument that the Defendants erroneously applied the “credible evidence” standard. She states that “DCFS officials failed in this case to take into account all available evidence.” Mann also contends in her brief that the Defendants failed to provide her with a timely appeal hearing. Neither of these contentions was alleged in Mann‘s Amended Complaint, let alonе presented to the district court, so they are waived. See Pole v. Randolph, 570 F.3d 922, 937-38 (7th Cir.2009) (stating that issues may not be raised on appeal if they were not adequately before the district court). The district court provided Mann with an opportunity to amend her complaint; that time has since passed.
We need not address the Defendants’ qualified immunity defense because Mann has not adequately pleaded a cause of action for deprivation of a constitutional right.
III. CONCLUSION
We AFFIRM the dismissal of Mann‘s Amended Complaint.
BAUER
Circuit Judge