Shontay Humphries v. Milwaukee Coun , 702 F.3d 1003 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3758
S HONTAY H UMPHRIES,
Plaintiff-Appellant,
v.
M ILWAUKEE C OUNTY,
M ILWAUKEE C OUNTY D EPARTMENT
OF H EALTH AND H UMAN S ERVICES,
JUAN M UNIZ, P ANG X IONG, and F ELICE R ILEY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10 CV 99—J.P. Stadtmueller, Judge.
A RGUED A PRIL 20, 2012—D ECIDED D ECEMBER 26, 2012
Before M ANION, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Shontay Humphries sub-
mitted an application to Milwaukee County, Wisconsin
to renew her child care provider certificate. Juan Muniz
reviewed her application, sent a standard inquiry to a
state agency as part of the background check, and
learned that Humphries had a substantiated finding of
2 No. 11-3758
child abuse from 1988. As a result, after conferring with
his supervisor, Muniz denied Humphries’s application.
Although Humphries maintains that the denial of her
application violated her right to due process, we agree
with Muniz and his supervisor that qualified immunity
protects them from any liability for this decision. They
had no involvement whatsoever in the investigation or
determination of the 1988 finding of substantiated abuse,
and no case law clearly establishes that they violated
Humphries’s constitutional rights when they relied on
that finding to deny her child care provider renewal
application. Therefore, we affirm the district court’s
grant of summary judgment to Muniz and his super-
visor on the basis of qualified immunity.
I. BACKGROUND
On December 12, 1988, an assistant principal contacted
Wisconsin’s Child Protective Services after a six-year-old
student came to school with a welt on her face. A CPS
social worker met with the girl and observed a five- or six-
inch mark. The girl told the social worker that her aunt
hit her with a shoe or slipper because she was writing on
the furniture. The social worker visited the aunt, Shontay
Humphries, who was also the child’s guardian, and
interviewed her as well. The social worker concluded
and reported to the state that the incident was one of
“substantiated” abuse by Humphries, and the substanti-
ated abuse finding was entered into the state’s child
offender database. Humphries maintains she was not
aware at the time that the finding had been entered.
No. 11-3758 3
In Wisconsin, one must have a license in order to be
paid to care for four or more children under the age of
seven who are not related to the child care provider.
Wis. Stat. § 48.65(1). A license holder must submit an ap-
plication for review every two years. Wis. Stat. § 48.65(1),
48.66(5). On June 27, 2008, Humphries submitted her
application for renewal of her child care certification
to the Milwaukee County Department of Health and
Human Services, as she had been certified in the past. Juan
Muniz, a child care specialist in the background check
unit, processed Humphries’s application. Pursuant to
state law, Muniz initiated a background check on
Humphries, which includes a check of whether there
are any substantiated findings of abuse or neglect against
an applicant. See Wis. Stat. § 48.685. Milwaukee County,
where Muniz worked, did not have access to the state’s
abuse and neglect findings, so Muniz faxed a request to
the Bureau of Milwaukee Child Welfare (“BMCW”),
which, despite its name, is a state agency and not an
agency of Milwaukee County. A few weeks later, Muniz
received a response from the BMCW with a case
number for Humphries, so Muniz went to the BMCW
office to review and copy the file. The file included a
copy of the December 1988 Child Abuse & Neglect In-
vestigation Report that detailed the investigation after
the assistant principal’s call and concluded that the
reported incident was one of “substantiated” abuse.
Pursuant to Wisconsin statute, a county department
may not license or renew the license of a child care
provider if a determination has been made under
4 No. 11-3758
§ 48.981(3)(c)4 1 that the person has abused or neglected
a child. Wis. Stat. § 48.685(4m)(a)4. Knowing that,
Muniz concluded that Humphries’s application had to
be denied. He was concerned because the Department
had previously certified Humphries in 2004 and 2006, so
he consulted with Pang Xiong, his supervisor. Xiong
approved the denial of Humphries’s application. Ap-
parently, the BMCW had failed to produce the 1988
substantiated abuse finding during the 2004 and
2006 background checks.
With Xiong’s approval, Muniz sent Humphries a
letter on October 23, 2008 informing her that her child
care certification application had been denied. The letter
cited the 1988 substantiated finding of abuse and the
Wisconsin statute prohibiting a county department
from certifying a provider knowing that a determina-
tion had been made that the person had abused or ne-
glected a child. The letter also informed Humphries of
her right to appeal the denial, which she did. The hearing
was postponed several times at Humphries’s request,
and it was eventually held on February 5, 2009.
1
This provision provides in relevant part:
The county department . . . within 60 days after receipt of a
report that the county department, department, or licensed
child welfare agency investigates under subd. 1. [reports
of suspicion of child abuse or neglect], whether abuse or
neglect has occurred or is likely to occur. The determina-
tion shall be based on a preponderance of the evidence
produced by the investigation.
No. 11-3758 5
In a decision on February 23, 2009, the hearing examiner
reversed the certification denial on the basis that the
uncertified report of the substantiated finding of abuse
that Muniz presented at the hearing lacked foundation
and was inadmissible hearsay. The hearing examiner
ordered that Humphries be reinstated to the applica-
tion process. On April 1, 2009, Xiong sent a letter to the
BMCW asking it to allow Humphries to appeal the sub-
stantiated finding of abuse determination. Humphries
received a copy of this letter as well.
Humphries filed this suit on December 31, 2009, in-
voking 42 U.S.C. § 1983 and alleging that her procedural
due process rights were violated when the defendants
denied her application for a child care certificate based
on the 1988 substantiated finding of child abuse without
first affording her an opportunity to contest that finding
of abuse. The State of Wisconsin took control of
the child care program from Milwaukee County the
day after Humphries filed her lawsuit, including the
responsibility for processing child care certification
renewal applications. About six months later, the BMCW
state agency overturned the 1988 substantiated abuse
finding. Muniz then forwarded Humphries’s applica-
tion onto the next steps in the child care certification
process, and Humphries received her child care certifica-
tion from the state.
In the lawsuit, the defendants moved for summary
judgment. The district court granted their motion
after concluding that they were entitled to qualified
immunity. Humphries appeals that decision with
6 No. 11-3758
respect to Muniz and Xiong. She does not appeal the
dismissal of her claims against other defendants or for
injunctive and declaratory relief.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment on the basis of qualified immunity de novo. Levin
v. Madigan, 692 F.3d 607, 622 (7th Cir. 2012). The doctrine
of qualified immunity protects government officials
from liability for civil damages when their conduct “ ‘does
not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.’ ” Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
Supreme Court held in Pearson that a court may grant
qualified immunity on the ground that a purported right
was not “clearly established” by prior case law without
first resolving whether the purported right exists. Id. at
236; see also Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(noting that this approach comports with the Court’s
reluctance to decide constitutional questions unneces-
sarily).
As the plaintiff, Humphries has the burden of
defeating the qualified immunity defense that the defen-
dants raised, so she must show that the due process
right she asserts was clearly established by prior case
law. See Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010).
To be clearly established, at the time of the challenged
conduct, the right’s contours must be “ ‘sufficiently
No. 11-3758 7
clear’ that every ‘reasonable official would have under-
stood that what he is doing violates that right.’ ” Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). While a case directly
on point is not required, “existing precedent must have
placed the statutory or constitutional question beyond
debate.” Id. This standard “protects the balance between
vindication of constitutional rights and government
officials’ effective performance of their duties by ensuring
that officials can ‘reasonably . . . anticipate when their
conduct may give rise to liability for damages.’ ” Reichle,
132 S. Ct. at 2093 (quoting Anderson, 483 U.S. at 639).
The “clearly established” requirement is not satisfied
here. As Humphries emphasizes, there is case law estab-
lishing circumstances when a person is entitled to
hearing rights before a finding of substantiated child
abuse may be entered, and there is no suggestion that a
hearing took place before the substantiated finding of
child abuse against Humphries was entered in the Wis-
consin database. See Doyle v. Camelot Day Care Ctrs., Inc.,
305 F.3d 603, 617 (7th Cir. 2002); Duprey v. Samuels, 397
F.3d 493, 503 (7th Cir. 2005); Boyd v. Owen, 481 F.3d 520,
525 (7th Cir. 2007). Humphries argues in her brief that
Doyle, Dupuy, and Boyd clearly established that it
violates due process for an initial investigation of
abuse or neglect allegations not to take into account
exculpatory evidence, for an agency to attach what she
calls an “abuser label” without some pre-deprivation
notice and review process, and for an agency to fail to
give notice and an opportunity for a full evidentiary
hearing very soon after identifying someone as a
8 No. 11-3758
purported “abuser.” But Muniz and Xiong had no in-
volvement before or in the entry of the finding of sub-
stantiated abuse here. It is undisputed that they had no
role in the child abuse investigation that resulted in
the 1988 finding and had no role at all in 1988 when the
substantiated abuse determination was made.
None of the case law to which Humphries points
holds that persons without a role in the abuse determina-
tion may not later rely on such a determination without
first independently ensuring the determination was
made in accordance with due process. Humphries
argues that because Milwaukee County made the sub-
stantiated finding of abuse against Humphries in 1988,
at a time when it did not consistently provide due
process to individuals against whom a finding was
made, the defendants should have been on notice that it
was unconstitutional to deny Humphries’s application
for child care certification based on the finding without
first giving her an opportunity to refute the finding of
abuse. She points to the Doyle, Duprey, and Boyd cases
and argues that they clearly established this proposition.
These cases, however, do not reach as far as Humphries
would like.
Our decision in Doyle would not put a reasonable
person on notice that relying on the substantiated
finding of abuse to deny the certification renewal as
Muniz and Xiong did was unconstitutional. In Doyle,
Illinois Department of Children and Family Services
(“DCFS”) officials “indicated” the plaintiffs for abuse
and medical neglect of a child after a brief investigation
No. 11-3758 9
and ex parte proceeding. (Being “indicated” for abuse
in Illinois is substantially the same as having a “sub-
stantiated” finding of abuse in Wisconsin.) The officials
recorded that determination in a statewide registry and
also disclosed their findings to the plaintiffs’ employers.
305 F.3d at 608. The plaintiffs lost their jobs as child care
providers as a result, and they brought a procedural
due process claim against the DCFS officials. Id. They
maintained that the use of the credible evidence
standard during administrative proceedings, the failure
to provide them with adequate notice of the findings
against them, and the delay preceding their post-depriva-
tion hearings violated due process. We ruled that “the
credible evidence standard, operating in conjunction
with a belated post-deprivation hearing, failed to
afford adequate process in this case.” 305 F.3d at 620.
Doyle would not put a reasonable person in the posi-
tion of Muniz or Xiong on notice that they could not
rely on the 1988 substantiated finding of abuse. The
defendants in Doyle who violated the plaintiffs’ due
process rights all played a role in the child neglect in-
dication determination. The defendants here did not.
Neither Muniz nor Xiong had any role in the child abuse
investigation, nor did they or their county department
have any power or control over the state finding. It is
true, as Humphries emphasizes, that Doyle did not limit
its holding to investigators. But the defendants we
found liable in that case all had some involvement in
the indication decision, either as investigators, super-
visors who approved the investigators’ findings, or
administrators who permitted the indicated reports
10 No. 11-3758
to be recorded in the central register or had created the
policies. Id. at 615. And we dismissed the claims against
the plaintiffs’ employers because their actions did
not contribute to the constitutional deprivation. Id. at
624 (“The DCFS employees indicated Ms. Doyle and
Mr. Konold, placed their names in the central register
and then disclosed these findings. It was this conduct,
standing alone, that effectively blacklisted Ms. Doyle
and Mr. Konold from working in child-care services and
implicated the protected liberty interest. The actions
of Camelot and Central Baptist did not contribute to the
constitutional deprivation that occurred in this case.”).
Our decision in Dupuy also would not have caused a
reasonable person to understand that relying on a sub-
stantiated finding of abuse as Muniz and Xiong did was
unconstitutional. There, a class of Illinois child care
workers who had been indicated for child abuse or
neglect alleged that DCFS’s procedures for investigating
such allegations deprived them of due process of law.
Dupuy, 397 F.3d at 496. We ruled that due process
requires equal consideration of both inculpatory and
exculpatory evidence when determining whether credible
evidence of abuse or neglect exists. Id. at 506-07. As in
Doyle, our decision in Dupuy concerned the process re-
quired before an indication of abuse may be entered.
Dupuy does not speak to what government employees
who do not work in the investigation of child
abuse must do when later faced with an existing
finding of abuse.
The final case to which Humphries points also does not
help her. In Boyd, we considered a plaintiff’s claim that
No. 11-3758 11
a child welfare investigator and her supervisor violated
the plaintiff’s right to due process in their investigation
and conclusion that a claim against the plaintiff for
child abuse was indicated. 481 F.3d at 522. After
discussing Dupuy, we stated that the focus solely on
inculpatory evidence, at the exclusion of exculpatory
evidence, meant that the procedure used in the investiga-
tion and indication determination failed to comport
with due process. Id. at 526. Because Dupuy was decided
after the decision to indicate Boyd’s abuse, however,
we affirmed the dismissal of his claims on the basis of
qualified immunity because he could not demonstrate
that the right was clearly established at the time of the
investigation. Id. at 527. Like Doyle and Dupuy, our
decision in Boyd does not establish that a person with
no role in the abuse determination who later relies on
such a finding acts in violation of the right to due pro-
cess. Indeed, the implication of Humphries’s position
seems to be, for example, that a public school principal
could be sued for declining to hire a teacher on the basis
of a prior child abuse determination with which the
principal had no involvement if the principal had not
first independently verified whether that finding had
been made in accordance with due process. The existing
case law does not support such a position.
Humphries also argues that Muniz and Xiong denied
her due process when she did not immediately receive
her certification after the hearing examiner’s February 23,
2009 decision. Because a certified copy of the sub-
stantiated abuse finding was not presented at the
hearing, the hearing examiner reversed the certification
12 No. 11-3758
denial. Humphries asserts that Muniz and Xiong refused
to obey the hearing examiner’s order and that their
“continued post-hearing deprivation” violates the Due
Process Clause. Humphries points to no case law to
support her argument on this point and instead
maintains it is self-evident that government officials
must comply with orders.
Muniz and Xiong did not fail to comply with the
hearing examiner’s order. The order did not direct that
Humphries was to receive her certification simply by
virtue of that order. Rather, the order stated in its
findings of fact that Humphries “may not be immediately
reinstated to conduct Certified Childcare, as Petitioner
was not revoked from a current certification.” Instead,
the order directed that “the Petitioner is to be reinstated
to the Application process of Childcare Certification
with the signing of this order at the point that the
process was interrupted on October 23, 2008.” And in
direct contradiction to what Humphries now argues, the
order stated: “However, concerning the demand of the
Petitioner to be recertified immediately, this Hearing
Examiner makes the determination that the Petitioner
was not certified when the County denied childcare
certification on October 23, 2008 . . . . Therefore, that
demand would be unreasonable.” The hearing
examiner’s decision only ordered that Humphries be
reinstated to the certification process.
Consistent with that decision, on April 1, 2009, Xiong
wrote to the BMCW, explained that the County had denied
Humphries’s certification based on the substantiated
No. 11-3758 13
finding, that Humphries had a hearing, and that she
presented evidence during the hearing that she had not
been aware of the substantiated finding by the BMCW
and therefore had not been afforded the appropriate
appeal rights. Xiong requested that the state agency
“send notification of the substantiated CAN [Child
Abuse and Neglect] finding with appropriate appeal
rights to Shontay Humphries” and stated that “Milwau-
kee County believes that due process and fundamental
fairness require that Shontay Humphries have an op-
portunity to appeal the basis of the finding by BMCW.”
The letter further stated that the County would hold
the certification action in abeyance until there was a
resolution on the underlying CAN appeal. A copy of
this letter was sent to Humphries through her counsel
as well. Instead of pursuing the matter with the
BMCW, the entity that had the power to change the
substantiated finding, Humphries filed this lawsuit in
December 2009. Cf. Veterans Legal Def. Fund v. Schwartz,
330 F.3d 937, 941 (7th Cir. 2003) (“[W]e do not allow a
plaintiff to claim that she was denied due process just
because she chose not to pursue remedies that were
adequate.”). When the substantiated finding of abuse
was addressed with the BMCW, it reversed the finding,
and then Humphries received her certification.
Humphries also contended at oral argument that her
due process rights were violated because she never re-
ceived the opportunity to argue that the 1988 sub-
stantiated finding abuse was not a determination under
§ 48.981(3)(c)4. The Wisconsin statute provides that
child care certification must be denied if a “determina-
14 No. 11-3758
tion has been made under § 48.981(3)(c)4 that the
person has abused or neglected a child,” but the statute
does not use the term “substantiated finding of abuse.”
Wis. Stat. § 48.865(4m)(a)4. Although Humphries con-
tended at oral argument she never had the opportunity
to make the argument, Humphries stated in her reply
brief that “the quasi judicial administrative hearing
before Hearing Examiner Partipillo was Ms. Humphries’
opportunity to be heard, inter alia, that a ‘substantiated
finding of abuse’ (whether from 1988 or 2008) is not a
determination under§ 48.981(3)(c)4 . . . . ” The brief then
argued that Muniz and Xiong failed to obey the hearing
examiner’s order, which as we discussed, they did not.
To the extent Humphries is arguing that Muniz and
Xiong violated her constitutional right to due process
by concluding that the 1988 substantiated abuse
finding was the equivalent of a determination under
§ 48.981(3)(c)4, and denying her certification as a
result, we disagree that it was clearly established
that they were wrong to do so. Wisconsin Statute
§ 48.685(4m)(a)4 strictly prohibits a county department
from certifying an applicant as a child care provider if
there has been a determination under § 48.981(3)(c)4
that the person has abused or neglected a child. The
County has no discretion to overlook a finding of abuse.
The 1988 finding was entered into the State’s data-
base prior to the enactment of Wisconsin Statute
§ 48.685(4m)(a)4, but the statute gives no guidance as to
how a government employee conducting the requisite
background check is to treat a finding of abuse made
prior to its passage. Nor does Humphries point to any
No. 11-3758 15
case law that might have provided guidance. The
County’s internal caregiver background check manual,
while recognizing that a person might not be aware of a
pre-1999 finding of abuse entered against her as before
then the agency often did not provide due process to
the person against whom the finding was made, also
does not address what a child care specialist should
do when a pre-1999 finding of substantiated abuse is
discovered as part of a background check. In light of
Wisconsin’s strict direction against certification when
there is an existing abuse finding on the books and a lack
of direction as to how to treat a pre-1999 finding, Muniz
and Xiong did not act unreasonably. That is, Humphries
has not demonstrated that it was clearly established
that Muniz and Xiong were wrong to deny Humphries’s
certification based on a pre-1998 substantiated finding
of abuse.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
12-26-12