Via, Tonisha v. LaGrand, Sandra

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-4011

TONISHA VIA,

Plaintiff-Appellee,

v.

SANDRA LAGRAND, a DCP investigator,

in her individual capacity,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 3278—Matthew F. Kennelly, Judge.

____________

ARGUED SEPTEMBER 14, 2006—DECIDED NOVEMBER 17, 2006

____________

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Tonisha Via sued four em-

ployees and officials of the Department of Child Protec-

tion (“DCP”) within the Illinois Department of Children and

Family Services (“DCFS”), alleging claims under 42 U.S.C.

§ 1983 and Illinois law. The defendants claimed they were

entitled to qualified immunity on the federal claims and

moved for summary judgment. The district court granted

summary judgment in favor of three of the defendants on

the § 1983 claims, but denied summary judgment to defen-

2 No. 04-4011

dant Sandra LaGrand. LaGrand appeals. We dismiss for

lack of jurisdiction.

I.

Tonisha Via worked as a child-care teacher at KinderCare

Learning Centers, Inc., in Elgin, Illinois, where six-month-

old Madison L. was enrolled. During the afternoon of

April 11, 2001, while changing Madison L.’s diaper, Via

noticed Madison L. acting as if she were experiencing

pain in her left leg. Via also claims that Madison L. was

unusually upset earlier that day and the previous day. Via

notified another daycare worker and the facility’s director

that Madison L. seemed to be in pain. After examining

Madison L., the director called her mother who picked

Madison L. up and took her to the hospital. Doctors deter-

mined that Madison L. had a broken leg.

Sandra LaGrand, a DCP investigator for the Illinois DCFS,

was assigned to the case involving Madison L.’s broken leg.

Following her investigation, LaGrand determined that

credible evidence supported an indicated report against Via

for child abuse or neglect of Madison L. LaGrand’s supervi-

sor, Roi Montalvo, approved the report, and it was officially

entered against Via on May 16, 2001. The DCFS notified

KinderCare of the indicated finding against Via and

KinderCare responded by firing Via. The indicated finding

was also posted on the Child Abuse and Neglect Tracking

System (“CANTS”). The DCFS did not provide Via with a

hearing before entering the indicated finding on CANTS.

Via appealed the indicated finding to an Administrative

Law Judge (“ALJ”). Via claims that during the appeal

process the ALJ repeatedly advised the DCFS to expunge

the indicated report from its record, but that the Assistant

No. 04-4011 3

Associate Deputy Director for Child Protection in Cook

County, Mary Ellen Eads, refused to expunge the report. Via

further alleged that the Associate Deputy Director for Child

Protection, John Goad, supported Eads’ decision not to

expunge the indicated report during the appeal process. On

January 16, 2003, exactly twenty months after the DCFS

initially indicated Via, the indicated report was expunged,

after the ALJ issued a written recommendation for

expungement.

After the expungement, Via sued LaGrand, Montalvo,

Eads, and Goad under 42 U.S.C. § 1983, alleging they

violated her constitutional right to due process. Via also

alleged a state law claim for intentional infliction of emo-

tional distress against the four defendants. The district court

granted qualified immunity on the constitutional claims for

defendants Montalvo, Eads, and Goad, but denied

LaGrand’s claim of qualified immunity. The district court

also granted summary judgment in favor of Goad on Via’s

state law intentional infliction of emotional distress claim,

but denied LaGrand, Montalvo, and Eads’ motions for

summary judgment on that state law theory. LaGrand filed

this interlocutory appeal, claiming she is entitled to quali-

fied immunity, which is the only issue before us.

II.

On appeal, LaGrand claims that she is entitled to qualified

immunity on Via’s § 1983 due process claim. Section 1983

provides that:

[e]very person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

4 No. 04-4011

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress. . . .

42 U.S.C. § 1983. To state a claim under § 1983, then, Via

must allege she was “(1) deprived of a right secured by the

Constitution or laws of the United States, and (2) the

deprivation was visited upon [her] by a person or persons

acting under color of state law.” Jones v. Wilhelm, 425 F.3d

455, 465 (7th Cir. 2005).

In her complaint, Via alleged that she had a liberty

interest in her job as a daycare worker. Via further alleged

that LaGrand, while acting on behalf of the DCP, vio-

lated her constitutional right to due process by indicating

her for child neglect or abuse despite knowing that

there was no evidence that she had abused or neglected

Madison L. On appeal, LaGrand does not challenge Via’s

claim of a liberty interest in her chosen profession. Rather,

LaGrand claims that she only indicated Via for child

abuse or neglect after investigating the claim and finding

credible evidence to support the indicated finding. LaGrand

then stresses that the credible evidence standard was not

declared unconstitutional until Doyle v. Camelot Care Ctrs.,

Inc., 305 F.3d 603, 619-20 (7th Cir. 2002), which this court

decided after she indicated Via.1 Accordingly, LaGrand

1

In Doyle, this court held that the DCFS’s meager “credible

evidence” standard for indicating a daycare employee for

abuse or neglect violated the plaintiffs’ right to due process

because of the plaintiffs’ significant interests in their employment

in the child-care industry, coupled with the extensive delay in

(continued...)

No. 04-4011 5

claims she is entitled to qualified immunity. See Jones, 425

F.3d at 460 (holding that a defendant is entitled to qualified

immunity if the alleged constitutional right was not clearly

established at the time of the alleged violation).

In this case, the district court agreed with LaGrand that if

credible evidence supported an indicated finding

against Via, LaGrand would be entitled to qualified immu-

nity “because the unconstitutionality of that standard was

not yet clearly established at the time of the investigation of

Via.” District Court Opinion at 4-5. The district court,

however, also concluded that “signing a report indicating

someone for child abuse or neglect without any supporting

evidence is conduct ‘so egregious that no reasonable person

could have believed that it would not violate clearly

established rights.’ ” District Court Opinion at 8. As the

district court further explained: “In other words, any

reasonable person in LaGrand’s position would have known

in 2001 that indicating Via for abuse or neglect in the

absence of evidence of abuse or neglect was a clear violation

of Via’s right to due process.” District Court Opinion at 8.

The district court reviewed the record to determine

whether Via presented sufficient evidence that “LaGrand

issued an indicated report of neglect or abuse despite

knowing that there was no evidence to suggest that Via

abused or neglected Madison L.” District Court Opinion at

6. The district court concluded that “[t]he transcript of

LaGrand’s testimony raises a genuine issue of fact as to

whether she indicated Via without any evidence of abuse or

neglect.” District Court Opinion at 6. Specifically, the

district court relied on this exchange between LaGrand and

1

(...continued)

holding a post-deprivation hearing. Doyle, 305 F.3d at 618-19.

6 No. 04-4011

Via’s attorney, at the hearing on Via’s administrative

appeal:

[Attorney]: Tell me what was this act of negligence or

neglect that you determined Tonisha [Via]

did.

LaGrand: Based on information that we had got

from the doctor, that’s why the case

was indicated on Tonisha [Via].

[Attorney]: I heard your answer, but I don’t understand

it in relation to my question, so I’ll ask it

again. What was this act that Tonisha [Via]

did that was an act of neglect you deter-

mined?

LaGrand: That during the time that she was chang-

ing the diaper that the incident occurred.

[Attorney]: Well what did she do, what was the act of

neglect?

LaGrand: I don’t know.

[Attorney]: Well you already told us there was no

direct, right?

LaGrand: Correct.

[Attorney]: So you didn’t find any blatant acts of disre-

gard of caretaker responsibility done by

Via, did you?

LaGrand: No.

[Attorney]: Isn’t that how the Department defines

neglect?

LaGrand: Correct.

***

No. 04-4011 7

[Attorney]: So you just concluded that the last one to be

with the child, she must have been the one

who did it, is that basically what we are

talking about here?

LaGrand: Yes.

District Court Opinion at 6-7.

The district court concluded that “[b]ased on this testi-

mony, LaGrand arguably admitted under oath that there

was no evidence to support an indication against Via. . . .

Taking the evidence in the light most favorable to Via,

a reasonable jury could therefore find that LaGrand violated

her constitutional right to due process.” District Court

Opinion at 7-8.

On appeal, LaGrand argues that “she was entitled to

summary judgment because there was evidence in sup-

port of her recommendation that Via be indicated for

child abuse or neglect.” Appellant Brief at 17. The district

court, however, concluded otherwise, holding that “[t]he

transcript of LaGrand’s testimony raises a genuine issue

of fact as to whether she indicated Via without any evidence

of abuse or neglect.” District Court Opinion at 6. Critically,

and dispositively, this court lacks interlocutory jurisdiction

to review the district court’s conclusion whether genuine

issues of material fact exist. Johnson v. Jones, 515 U.S. 304,

319-20 (1995) (holding that a defendant “may not appeal a

district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial”). A straightforward

application of Johnson makes clear that this court lacks

interlocutory jurisdiction over this appeal. Yet, because the

briefs and oral argument in this case demonstrate an

apparent misunderstanding of the jurisdictional principles

8 No. 04-4011

governing interlocutory appeals, some additional analysis

is called for.

Generally, this court lacks jurisdiction under 28 U.S.C.

§ 1291 to review a district court’s denial of summary

judgment. Jones, 425 F.3d at 466. “However, an exception to

this rule comes into play when a movant requests summary

judgment based on qualified immunity.” Id. “Under the

collateral order doctrine the district court’s denial of

[a] motion for summary judgment based on qualified

immunity is an immediately appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 to the extent that it

turns on legal rather than factual questions.” Wernsing v.

Thompson, 423 F.3d 732, 741 (7th Cir. 2005). However, in

Johnson, the Supreme Court held that a defendant “may

not appeal a district court’s summary judgment order

insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact for trial.” Johnson,

515 U.S. at 319-20.

This court recently summarized the Supreme Court’s

Johnson decision, in McKinney v. Duplain, 463 F.3d 679 (7th

Cir. 2006):

In Johnson, the plaintiff, Houston Jones, sued several

policemen, claiming the officers used excessive force

when they arrested him and later beat him at the police

station. Johnson, 515 U.S. at 307. Five officers arrested

Jones or were present when he was booked. The arrest-

ing officers had found Jones lying on the street; the

officers thought Jones was drunk, but, in reality, he had

suffered an insulin seizure. Id. When Jones came to, he

was in a hospital with several broken ribs. Id. Three of

the officers moved for summary judgment, arguing that

Jones failed to present sufficient evidence that they had

either beaten him or been present when others had done

No. 04-4011 9

so. Id. Jones responded by pointing to his own deposi-

tion testimony in which he swore that officers (although

he did not identify which ones) had used excessive force

when arresting him and later at the police station. Id.

Jones further pointed to the depositions of the three

officers, all of whom admitted they were present at the

arrest and in or near the booking room when Jones was

there. Id. at 307-08. The district court concluded that this

evidence was sufficient to create a genuine issue of fact

whether the three officers stood by and watched the

beating, and if they had done so, that was sufficient to

create liability. Id. at 308. The officers appealed, arguing

that “the denial was wrong because the record con-

tained not a scintilla of evidence . . . that one or more of

them had ever struck, punched or kicked the plaintiff,

or ever observed anyone doing so.” Id. (internal quota-

tions omitted). This court refused to consider the

officers’ argument, holding that we lacked appellate

jurisdiction to determine whether the record contained

sufficient evidence to raise a “genuine” issue of fact for

trial. The officers appealed to the Supreme Court. The

Supreme Court in Johnson affirmed, holding “that a

defendant, entitled to invoke a qualified immunity

defense, may not appeal a district court’s summary

judgment order insofar as that order determines

whether or not the pretrial record sets forth a ‘genuine’

issue of fact for trial.”

Id. at 686. Thus, if the district court finds a genuine issue

of material fact exists, appellate courts lack jurisdiction to

review the record, even if the appellate court perceives an

error in the district court’s reading of the summary judg-

10 No. 04-4011

ment record. Id. at 689-90.2

McKinney also noted that the Supreme Court clarified the

scope of Johnson in Behrens v. Pelletier, 516 U.S. 299 (1996).

McKinney, 463 F.3d at 686 (citing Behrens, 516 U.S. 299). The

Court in Behrens explained that “Johnson surely does not

mean that every such denial of summary judgment is

nonappealable.” Behrens, 516 U.S. at 313 (emphasis in

original). Rather, the Behrens Court explained:

Johnson held, simply, that determinations of evidentiary

sufficiency at summary judgment are not immediately

appealable merely because they happen to arise in a

qualified immunity case; if what is at issue in the

sufficiency determination is nothing more than whether

the evidence could support a finding that particular

conduct occurred, the question decided is not truly

”separable” from the plaintiff’s claim, and hence there

is no “final decision.”

Behrens, 516 U.S. at 313 (citing Johnson, 515 U.S. at 313-18).

Behrens also stressed that “Johnson reaffirmed that summary

judgment determinations are appealable when they resolve

a dispute concerning an ‘abstract issu[e] of law’ relating to

qualified immunity, [Johnson, 515 U.S.] at 317—typically, the

issue whether the federal right allegedly infringed was

clearly established . . . .” Behrens, 516 U.S. at 313 (quoting

Johnson, 515 U.S. at 317). The Court in Behrens further

emphasized that “Johnson permits petitioner to claim on

appeal that all of the conduct which the District Court

2

Conversely, if the defendant argues on appeal that he is

entitled to qualified immunity no matter how the genuine

issue of material fact is resolved, we would have jurisdiction

to consider that purely legal question. See Johnson, 515 U.S. at 317.

No. 04-4011 11

deemed sufficiently supported for purposes of summary

judgment met the (qualified immunity) standard of objec-

tive legal reasonableness.” Behrens, 516 U.S. at 313.

We applied Johnson and Behrens in McKinney. In McKinney,

the estate of Michael McKinney sued Officer Duplain,

alleging Officer Duplain violated Michael’s constitutional

rights by using excessive force; in responding to a 911

burglary-in-progress call, Officer Duplain had shot and

killed McKinney. McKinney, 463 F.3d at 680. Officer Duplain

argued that he was entitled to summary judgment because

the undisputed facts established that McKinney had

charged him and that therefore he was justified in shooting

McKinney. Id. at 689. The district court rejected Officer

Duplain’s argument, concluding that the testimony pre-

sented by McKinney’s experts created a factual issue as to

whether McKinney had charged Officer Duplain. Id. On

appeal, this court noted that there were several problems

with the expert’s testimony, but held that under Johnson, we

lacked jurisdiction to consider a Daubert challenge. Id. at

690-91. Specifically, we explained that “given the mandate

of Johnson, we lack jurisdiction to conduct such a review of

the record. As Johnson made clear, a defendant ‘may not

appeal a district court’s summary judgment order insofar as

that order determines whether or not the pretrial record sets

forth a “genuine” issue of fact for trial.’ ” Id. at 690 (quoting

Johnson, 515 U.S. at 319-20). We then explained that that was

exactly what Officer Duplain sought to do: “Officer Duplain

maintains that the record does not support the district

court’s conclusion that a genuine issue of fact exists as to

whether McKinney charged Officer Duplain, because the

only evidence that supports the view that McKinney did not

charge comes from the inadmissible opinions of the prof-

fered experts. . . .” Id. Accordingly, in McKinney, we held

that “notwithstanding the numerous problems with the

12 No. 04-4011

proffered experts’ opinions that Officer Duplain identifies,

we must dismiss Officer Duplain’s appeal for lack of

jurisdiction.” Id. at 691.

In holding in McKinney that we lacked jurisdiction, we

acknowledged that “[i]t is true, . . . that the defense of

qualified immunity is not just a defense to liability, but it

also entitles a defendant not to stand trial . . . [and] . . . that

the issue of qualified immunity should be resolved at the

earliest possible stage in the litigation.” Id. (internal quota-

tion omitted). We stressed, though, that “the Supreme Court

in Johnson, while acknowledging those principles, nonethe-

less concluded that other policy concerns outweighed the

need for an immediate appeal.” Id. See Johnson, 515 U.S. at

317-18 (noting that “the countervailing considerations that

we have mentioned (precedent, fidelity to statute, and

underlying policies) are too strong to permit” an immediate

appeal). We further noted that:

[a]lthough in some cases, the same factors that the

Supreme Court in Johnson believed weighed against

immediate appeal, might instead cut the other way—for

instance, where the district court’s mistake seems

obvious—the Court in Johnson stressed that it must “of

course decide appealability for categories of orders

rather than individual orders.”

McKinney, 463 F.3d at 691 (quoting Johnson, 515 U.S. at 315).

Accordingly, we explained, “we cannot, in each indivi-

dual case, ‘engage in ad hoc balancing to decide issues

of appealability.’ ” Id. McKinney then concluded that “even

though in this case a holding that we lack jurisdiction may

problematically prolong this case, under Johnson that is

our only option.” Id.

As the above summary makes clear, under Johnson and its

progeny, this court lacks interlocutory jurisdiction to review

No. 04-4011 13

the record to determine whether the district court erred in

finding that a genuine issue of material fact exists. In this

case, the district court concluded that a genuine issue of fact

existed concerning whether LaGrand indicated Via without

any evidence of abuse or neglect. Even LaGrand acknowl-

edges as much, stating in her brief, “[t]rue, the district court

found that there was a genuine issue of disputed fact.”

Appellant’s Brief at 3. LaGrand, however, does not argue

that she is entitled to qualified immunity notwithstanding

the factual issue found to exist by the district court. Rather,

she argues that the district court misread LaGrand’s testi-

mony and that a genuine issue of fact does not exist. See

Appellant’s Brief at 3 (“The district court’s reading of that

testimony, however, did not create a genuine issue of fact

because it is undisputed that LaGrand did not have any

direct evidence of abuse or any evidence of specific acts of

neglect. Instead, LaGrand relied on circumstantial evidence

to recommend an indicated finding against Via.”). LaGrand

then cites to numerous pieces of evidence which, she claims,

supported the indicated finding, and Via responds by

pointing to contrary evidence. Were this an appeal from a

grant of summary judgment, this court would review the

record de novo to determine if a genuine issue of material

fact existed. Denisi v. Dominick’s Finer Foods, Inc., 99 F.3d 860,

864 (7th Cir. 1996). However, on interlocutory appeal of a

denial of qualified immunity, this court generally3 lacks

3

Had the district court not set forth the factual basis for its

decision, or merely stated that genuine issues of material fact

existed, without elaborating on exactly what those facts were, this

court would then have had jurisdiction to review the record. See

Johnson, 515 U.S. at 319 (holding that if the district court does not

state what facts it assumed in denying summary judgment “a

(continued...)

14 No. 04-4011

jurisdiction to review the factual record. Instead, we may

only consider whether the defendant is entitled to qualified

immunity given the factual disputes found by the district

court. Johnson, 515 U.S. at 319-20. As in McKinney, LaGrand

challenges a denial of qualified immunity by arguing that

the district court incorrectly assessed the record in determin-

ing that a genuine issue of material fact existed concerning

whether any evidence supported LaGrand’s indication of

Via for child abuse or neglect. We lack jurisdiction over such

an appeal.

III.

The district court in this case concluded that a genuine

issue of fact exists about whether LaGrand indicated Via for

child abuse or neglect without any evidence of abuse

or neglect. On appeal, LaGrand argues she is entitled to

qualified immunity because the undisputed facts show

that she had some evidence to support the indicated finding.

Under Johnson, this court lacks jurisdiction to determine

whether the summary judgment record sets forth a genuine

issue of fact for trial. Accordingly, we DISMISS for lack of

jurisdiction.

3

(...continued)

court of appeals may have to undertake a cumbersome review of

the record to determine what facts the district court, in the light

most favorable to the nonmoving party, likely assumed”)

(internal quotations omitted).

No. 04-4011 15

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-17-06