Lorene Mann v. Meldon Vogel , 707 F.3d 872 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1971
L ORENE M ANN,
Plaintiff-Appellant,
v.
M ELDON V OGEL, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:10-cv-04042-MMM-JAG—Michael M. Mihm, Judge.
S UBMITTED O CTOBER 30, 2012—D ECIDED F EBRUARY 22, 2013
Before B AUER, FLAUM, and W OOD , Circuit Judges.
B AUER, 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
2 No. 11-1971
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 there-
after, 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 em-
ployees’ 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
No. 11-1971 3
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 base-
ment and went to the first floor to prepare food for
the children. She remained out of the basement for ap-
proximately 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 high-
chair 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. See 89 ILL. A DMIN.
C ODE § 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 immedi-
4 No. 11-1971
ately 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 pro-
viding 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 com-
plaint; 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 ex-
tended its investigation by an additional thirty days.
On December 19, 2008, DCFS completed its investiga-
tion into the complaint and concluded that the alleged
licensing violation was “substantiated.” See § 383.35(d)
(“At the conclusion of the licensing complaint investi-
gation, the licensing representative shall make a deter-
1
The record does not contain a copy of the protective plan,
so the information regarding the protective plan’s terms is
taken from Mann’s Amended Complaint.
No. 11-1971 5
mination and enter a finding of ‘substantiated’ or ‘unsub-
stantiated’ with regard to each allegation in the com-
plaint 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 de-
termination. See 89 ILL. A DMIN. C ODE § 383.35(g). Mann
attended the supervisory review but was not rep-
resented by counsel. On January 12, 2009, Sherrard deter-
mined 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.
6 No. 11-1971
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. C OMP. S TAT. 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
2
The State of Illinois was previously dismissed from the case,
and it is not a party to this appeal.
No. 11-1971 7
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 pro-
ceedings 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 inves-
tigation of the complaint; and (5) improperly and indefi-
nitely 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 pro-
tected 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.
3
Mann also claimed that Vogel engaged in harassing be-
havior towards her, but we do not see how the facts
alleged support a due process violation on that ground. Ac-
cordingly, we reject this claim without further discussion.
8 No. 11-1971
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 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (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 U.S. App. LEXIS 1965, at *13 (7th
Cir. Jan. 29, 2013) (citing U.S. C ONST. amends. V, XIV).
Mann contends that the imposition of the protective
plan and the Defendants’ investigation and subsequent
review of the complaint against her violated her right to
due process. But to properly plead a due process claim
under § 1983, Mann must sufficiently allege (1) that
she had a cognizable liberty interest under the Four-
teenth Amendment; (2) that she was deprived of that
liberty interest; (3) and that the deprivation was
No. 11-1971 9
without due process. See Khan v. Bland, 630 F.3d 519, 527
(7th Cir. 2010); Polenz v. Parrott, 883 F.2d 551, 555 (7th
Cir. 1989).4 We analyze whether Mann’s allegations
satisfy these elements in turn.
A. Protected Liberty Interest
We first look to whether Mann has adequately alleged
a protected liberty interest. Mann’s Amended Com-
plaint 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 Constitution.” 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 (1976); Hojnacki v. Klein-Acosta, 285
F.3d 544, 548 (7th Cir. 2002). Indeed, “mere defamation
4
Mann must also establish that a state actor was the individual
who deprived her of the protected liberty interest. Doyle v.
Camelot Care Ctrs., Inc., 305 F.3d 603, 616 (7th Cir. 2002). Because
Mann alleges that Vogel and Sherrard were acting within the
scope of their employment as agents of DCFS during the
pendency of the allegations in the Amended Complaint,
we presume that they were in fact state actors.
10 No. 11-1971
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 gov-
ernmental 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; 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 oc-
cupation 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 com-
monly 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
No. 11-1971 11
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 pre-
vented 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 extin-
guished.” Paul, 424 U.S. at 711; see Hannemann v. S. Door
Cnty. Sch. Dist., 673 F.3d 746, 753-55 (7th Cir. 2012). In
determining whether Mann was deprived of a liberty
interest, we recognize that Mann’s allegations of wrong-
doing relate to two distinct issues: (1) the imposition of
the protective plan; and (2) the process by which DCFS
investigated and reviewed the complaint against her.
Nonetheless, prior to the imposition of the protective
plan and the investigation of the complaint, Mann was
able to operate the Center under Illinois law; she was
prohibited from doing so after. We believe Mann has
sufficiently alleged a deprivation of a protected liberty
interest as it relates to all her allegations.
12 No. 11-1971
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
erroneous deprivation of such interest through the pro-
cedures used, and the probable value, if any, of addi-
tional 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 (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 neces-
sary, in conjunction with the state’s strong interest
in protecting children from abuse and neglect.
1. The Protective Plan
Mann contends 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 investiga-
tion 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
No. 11-1971 13
the health, safety and best interests of the children do
not require closure of the program or facility . . . ; or
(3) after a monitoring visit, the licensing representa-
tive 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.
89 ILL. A DMIN. C ODE § 383.45(a)(1)-(3).
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 agreeing to a ‘safety plan,’ under which restric-
tions 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 hearing after to challenge its terms cannot be sus-
tained.
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
14 No. 11-1971
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) (ex-
plaining that a child may be removed from his home if
the facts and circumstances known to the state demon-
strate 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.
No. 11-1971 15
2008) (adopting the reasoning described in Dupuy II).
But in any event, Mann’s assertion that she had no op-
portunity to have the protective plan’s requirements
reviewed is incorrect. See 89 ILL. A DMIN . C ODE § 383.45(c)
(explaining that a protective plan “shall be reviewed by
the licensing supervisory every [six] months”). Mann’s
protective plan was reviewed within the time frame
prescribed (on January 6, 2009, approximately four-and-
a-half months after she entered into it), which we
believe was more than reasonable given the basis for
the complaint against her.
To the extent Mann argues in her brief that the protec-
tive 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 recog-
nize 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
16 No. 11-1971
here do not support an inference that Mann did not
voluntarily enter into the protective plan.
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 immedi-
ately stop operating the facility, and (2) initiate proceed-
ings 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
225 ILL. C OMP. S TAT. 10/11.2, which provides in part:
Whenever the Department expressly finds that the
continued operation of a child care facility . . . jeopar-
dizes the health, safety, morals, or welfare
of children served by the facility, the Department
shall issue an order of closure directing that the op-
eration of the facility terminates immediately, and,
if applicable, shall initiate revocation proceedings
under Section 9 within ten working days.
(emphasis added).
No. 11-1971 17
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 89 ILL. A DMIN. C ODE § 383.50 allows the state
to offer a corrective plan to the individual (which
Mann agreed to) instead of pursuing the most drastic
means available.
In fact, Mann may have actually benefitted from
the procedures she was afforded during the entire pro-
cess. 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 per-
manently 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
18 No. 11-1971
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
89 ILL. A DMIN. C ODE § 383.35, which states that an in-
vestigation shall be completed within thirty days upon
receipt of a complaint. The investigation in this case
took almost 120 days—though it was initially extended
an additional thirty days in accordance with § 383.35(b).
The Defendants concede that the investigation was not
completed within the time frame prescribed, but a vio-
lation of state procedures does not automatically equate
to a violation of Mann’s due process rights. See Anult
v. Speicher, 634 F.3d 942, 947 (7th Cir. 2011) (“[E]ven
if Plaintiff could show Defendant violated Illinois
law, failure to comply with state procedures does not
demonstrate the violation of Plaintiff’s clearly estab-
lished constitutional due process rights.”). We must
make an independent determination as to whether this
delay could be a violation of due process. Boyd v. Owen,
481 F.3d 520, 524 (7th Cir. 2007) (citing Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 541 (1985)).
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
No. 11-1971 19
children will not be subjected to abuse or neglect when
they are in the care of a day care provider, and day
care 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 re-
quirements adequately balanced the competing interests
of the state and the workers). An additional sixty days
to make these determinations and balance the counter-
vailing concerns is not an unreasonable amount of time.
Moreover, despite the delay, the facts as pleaded demon-
strate 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 89 ILL.
A DMIN. C ODE § 383.45(c). Mann was also granted an
informal review of the supervisory review, and she was
given an opportunity to have the indicated report ex-
punged. See § 336.80. This information supports a con-
clusion that Mann was afforded all the process “due”
and that the Defendants’ intrusion on Mann’s right to
operate the Center was no greater than was necessary
to address the complaint against her. See Dupuy I, 397
F.3d at 504 (“As long as substantial post-deprivation
process is available, the pre-deprivation process
required . . . need not be elaborate or extensive. Rather,
in many situations, it ‘should be an initial check against
mistaken decisions[.]’ ” (quoting Hudson, 374 F.3d at 560)).
Mann’s allegation regarding the delay is insufficient
to support a due process violation.
20 No. 11-1971
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 ex-
punged, that does not mean DCFS cannot act diligently
to prevent the possibility of future harm or neglect
when it receives a credible complaint. See Siliven, 635
F.3d at 929 (explaining that the state has a “strong
interest in protecting children from abuse” and must
take reasonable action in light of the particular facts
known to it). The standard required for certain actions
throughout the pendency of an investigation is dif-
ferent, and the allegation was not meritless when
DCFS initiated its investigation of Mann and began a
formal investigation into the complaint. See 89 ILL. A DMIN.
C ODE § 300.100 (DCFS must have “reasonable cause”
to begin an initial investigation when it receives a com-
plaint and a “good faith indication that child abuse or
neglect exists” to commence a formal investigation). We
agree with the district court that Mann’s allegation that
No. 11-1971 21
the Center was closed as a result of a meritless com-
plaint cannot survive the Defendants’ motion to dismiss.
As a final matter, Mann attempts to shoehorn the al-
legations 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 evi-
dence.” Mann also contends in her brief that the Defen-
dants failed to provide her with a timely appeal hearing.
Neither of these contentions was alleged in Mann’s
Amended Complaint, let alone 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 im-
munity defense because Mann has not adequately
pleaded a cause of action for deprivation of a constitu-
tional right.
III. CONCLUSION
We A FFIRM the dismissal of Mann’s Amended Com-
plaint.
2-22-13