Boyd, James v. Owen, Mickey

In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-3587

JAMES BOYD,

Plaintiff-Appellee,

v.

MICKEY OWEN and LESLIE FOOTT,

Defendants-Appellants.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 04-cv-00025-GPM—G. Patrick Murphy, Chief Judge.

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ARGUED SEPTEMBER 14, 2006—DECIDED MARCH 22, 2007

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Before CUDAHY, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. James Boyd filed an action

in the district court alleging that the Department of

Children and Family Services (DCFS) child welfare inves-

tigator Leslie Foott and her supervisor Mickey Owen

violated his rights to due process in their investigation of

a claim of child abuse and their finding that the claim

against him for physical abuse of a child was “indicated.”

Foott and Owen filed a motion for summary judgment,

arguing that they were entitled to qualified immunity

on the claim. The district court denied that motion, and

they appeal that denial to this court.

2 No. 05-3587

We generally lack jurisdiction to review denials of

summary judgment, but under the collateral order doc-

trine, a denial of summary judgment on the issue of

qualified immunity is immediately appealable to the

extent that it presents questions of law rather than fact.

Via v. LaGrand, 469 F.3d 618, 622 (7th Cir. 2006). There-

fore, Boyd may not appeal the district court’s denial of

summary judgment on qualified immunity insofar as that

order determines whether the record sets forth a genuine

issue of material fact. Id.; Johnson v. Jones, 515 U.S. 304,

313 (1995). Such a denial is appealable, however, to

resolve disputes concerning an abstract issue of law, such

as whether the federal right allegedly infringed was

clearly established. Via, 469 F.3d at 623; Johnson, 515

U.S. at 318; Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

We therefore do not review whether the district correctly

determined that genuine issues of fact existed. Instead,

accepting the district court’s determinations as to the

factual issues, and taking the facts as characterized by

the district court in the light most favorable to the plain-

tiff, we determine whether the defendants were none-

theless entitled to qualified immunity as a matter of law.

Via, 469 F.3d at 623.

On December 30, 2002, DCFS received a hotline report

that James Boyd, a police officer with the City of Washing-

ton Park, had physically abused the five-year-old daughter

of Angela Hampt, a woman with whom he was acquainted.

Mary Free, who worked for a crisis center, had received a

call from Danny Knight, which alleged that Boyd had

caused bruises to the buttocks of Sarah, the daughter of

Angela Hampt, and that Boyd also had held a knife to

Hampt’s throat and that Hampt was afraid of Boyd. Free

then conveyed those allegations to DCFS. Knight was a

friend of Hampt who lived nearby and had been one of

Sarah’s babysitters.

No. 05-3587 3

Foott was a DCFS child welfare investigator who

investigated the allegation, and Owen supervised and

participated in the investigation. Upon receiving such

an allegation of abuse, DCFS investigators conduct an

initial investigation to determine whether credible evi-

dence of child neglect or abuse exists. Credible evidence

is established where the available facts, viewed in light

of the surrounding circumstances, would cause a reason-

able person to believe that a child was abused or neglected.

Dupuy v. Samuels, 397 F.3d 493, 497 (7th Cir. 2005). If

credible evidence of such abuse is found to support the

allegation, DCFS designates the report as “indicated.” Id.

On January 2, 2003, in the early afternoon, Owen and

Foott proceeded to Hampt’s apartment to investigate.

When there was no response at the apartment, they

went to Knight’s house down the street and talked with

him. They then called the Granite City police who accom-

panied them to Hampt’s apartment. At this time, Hampt

answered the door. Hampt allowed Owen and Foott to

examine Sarah and they observed the bruises. Hampt

asked Sarah how she got the bruises, and Sarah responded

“James.” Hampt denied that (James) Boyd caused it, and

suggested a number of other names of possible perpetra-

tors. At that time, Owen decided to take Sarah into

protective custody. On the ride to the field office, Foott

asked Sarah in the car who caused the bruises, and she

again identified Boyd. During that car ride, Foott and

Owen decided that they would “indicate” Boyd for the

bruising of Sarah’s buttocks. Foott contacted Free again,

and Free stated that Boyd was potentially dangerous,

violent and psychotic. Later on January 2nd, Foott also

interviewed another of Sarah’s babysitters, but although

the report of that conversation mentions bruising ob-

served on Sarah, it does not identify who caused it. There

is some dispute as to when Boyd was contacted, but

we assume for this appeal that Foott did not speak with

4 No. 05-3587

Boyd until February 2003, after he had been indicated

for abuse.

In August 2003, Boyd was hired by the Maryville Police

Department in a part-time position, with the possibility

of being considered for a full-time position in the future.

As part of the hiring process, he agreed to a background

check. The Maryville Chief of Police later called Boyd into

his office and asked him who Angela Hampt was. The

Chief indicated that he had learned that Boyd had

been indicated for physical abuse, and had been investi-

gated for allegations of sexual abuse (which were subse-

quently determined to be unfounded.) The Chief further

stated that he did not want an officer with a pending or

indicated report working for his department. Given the

choice of resigning or being terminated, Boyd chose the

former. Boyd subsequently filed this lawsuit alleging

that the violation of his due process rights by the defen-

dants resulted in the indicated finding, and the loss of his

ability to pursue his chosen occupation of law enforcement.

Owen and Foott sought summary judgment on the

ground that they were protected from suit by the doctrine

of qualified immunity. Under that doctrine, they are

shielded from suit unless Boyd can demonstrate (1) the

violation of a constitutional right that is (2) clearly estab-

lished at the time of the alleged violation, so that a

reasonable public official would have known that his or

her conduct was unlawful. Green v. Butler, 420 F.3d 689,

700 (7th Cir. 2005); Sonnleitner v. York, 304 F.3d 704, 716

(7th Cir. 2002). In the district court, Boyd argued that they

violated his constitutional right to due process of law by

issuing an indicated finding under the credible evidence

standard, which did not include an adequate investiga-

tion or consideration of mitigating evidence. Boyd argued

that the constitutional violation was clearly established

by this court’s decision in Dupuy v. Samuels, 397 F.3d 493

(7th Cir. 2005).

No. 05-3587 5

The district court appears to have conflated the two

prongs of the qualified immunity test. The court held that

Boyd possessed a protected liberty interest in his employ-

ment as a police officer. The court then recognized that

our decision in Dupuy could not clearly establish any due

process violation because it was issued after the events

at issue in the case. The court nevertheless held that

Foott and Owen violated Boyd’s clearly established

constitutional right to due process because “DCFS’ own

rules and regulations imposed a duty to identify other

possible explanations for the abuse,” and Owen and Foott

failed to do so. Dist. Ct. Order at 5.

The district court properly held that our Dupuy deci-

sion could not demonstrate a clearly established right

because it did not exist when these events occurred, but its

alternative reasoning is erroneous. The Supreme Court

has made clear the requirement of due process is not

defined by state rules and regulations, but is an independ-

ent determination. Cleveland Bd. Of Educ. v. Loudermill,

470 U.S. 532, 541 (1985); see also Lyon v. Dept. of Children

& Family Services, 807 N.E.2d 423, 434 (Ill. 2004). Accord-

ingly, the district court erred in determining that the

failure to comply with DCFS regulations demonstrated

a violation of a clearly established constitutional right.

As we will see, Boyd provides nothing further to demon-

strate that the right was clearly established. We cannot

jump to that issue, however, because the Supreme Court

has made clear that we must first consider whether

there was a violation of a constitutional right before we

can consider whether that right was clearly established at

the time of the violation. Saucier v. Katz, 533 U.S. 194, 201

(2001). Or, more precisely in the context of this summary

judgment denial, we must first determine whether, in

light of the facts as set forth by the district court, Boyd

has alleged sufficient facts for a reasonable jury to find

6 No. 05-3587

that the failure of the defendants to consider exculpatory

evidence violated his right to due process.

Boyd argues that he possessed a liberty interest in his

employment as a police officer, and that the indicated

finding deprived him of that interest without due process.

Owen and Foott argue on appeal that Boyd does not in

fact possess a liberty interest that was implicated by the

indicated finding, and therefore that the Due Process

Clause does not apply. “ ‘It is well-settled that an individ-

ual has no cognizable liberty interest in his reputation.’ ”

Dupuy, 397 F.3d at 503, quoting Doyle v. Camelot Care

Ctrs., Inc., 305 F.3d 603, 617 (7th Cir. 2002). However,

“ ‘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 govern-

ment has infringed upon that individual’s liberty inter-

est to pursue the occupation of his choice.’ ” Id. In Dupuy,

we recognized that an indicated finding effectively bars

child care workers from future employment in the child

care industry, thus implicating a liberty interest. Id. at

503. Owen and Foott argue on appeal that no similar

situation is presented here, because there is no state

statute requiring potential law enforcement employers to

check the child abuse registry, as there is with child care

employers. Moreover, Owen and Foott assert that there

was no disclosure of the indicated finding that resulted

in the loss of employment. The facts underlying these

arguments are murky and undeveloped at best, perhaps

because it appears that they were never raised to the

district court. In the district court, Owen and Foott argued

in a cursory sentence or two that there was no property

interest in employment that was implicated by the indi-

cated finding, and argued in a later section that a verbal

comment made about Boyd did not implicate any liberty

interest. They did not, however, argue that the indicated

No. 05-3587 7

finding did not implicate any liberty interest. Even when

that issue was developed extensively in Boyd’s brief, the

defendants failed to file any response to it. As such, we

need not consider it here, and will assume for purposes

of this case only, that a liberty interest is implicated.

Skywalker Communications of Indiana, Inc. v. Skywalker

Communications, Inc., 333 F.3d 829, 831 (7th Cir. 2003);

Pond v. Michelin North America, Inc., 183 F.3d 592, 597

(7th Cir. 1999) (“Arguments not raised in the district court

are waived on appeal, . . . as are arguments raised in a

conclusory or underdeveloped manner . . . .” [citations

omitted]).

The next question, then, is whether the procedures used

in investigating the charge and issuing the indicated

finding were constitutionally sufficient. Due process is

a flexible concept, and the procedures that are constitu-

tionally required are dependent upon the particular

situation, and are determined through application of the

Mathews test. Mathews v. Eldridge, 424 U.S. 319, 335

(1976); Sonnleitner, 304 F.3d at 712-13. The Mathews

test requires that we balance:

[f]irst, the private interest that will be affected by the

official action; second, the risk of an erroneous depri-

vation of such interest through the procedures used

and the probable value, if any, of additional or substi-

tute procedural safeguards; and finally, the Govern-

ment’s interest, including the function involved and

the fiscal and administrative burdens that the addi-

tional or substitute procedural requirement would

entail.

Mathews, id.

We note initially that Boyd misapplies this test. After

first noting that the private interest in employment is

a substantial one, Boyd turns to the second prong. Rather

than considering the procedures actually followed by the

8 No. 05-3587

investigators here, as the Mathews test instructs, Boyd

focuses exclusively on the DCFS procedures that the

investigators should have followed. Because the procedures

set forth by the DCFS regulations would have satisfied

Boyd’s due process concerns, Boyd concludes that there

is no risk of erroneous deprivation of his interest under

the procedures set forth by Illinois regulations. That

misconstrues the test. The issue is whether the proce-

dures actually followed presented an unreasonable risk

of an erroneous deprivation of the private interest, in

light of the government’s interest and the probable value

of additional safeguards. The focus is not on whether

the defendants would have complied with due process

had they adhered more faithfully to the state regulations,

but whether their actual conduct in this case was constit-

utionally deficient.

We do not consider this issue on a blank slate, as this

court has considered the Mathews factors in the context

of the DCFS procedures for indicating abuse. Specifically,

this court in Dupuy discussed at length the credible

evidence standard, under which such an indicated find-

ing is made. Dupuy, 397 F.3d 493. As we noted in dis-

cussing the district court’s decision in Dupuy, the credible

evidence standard must be met in order for DCFS to

determine that a report of alleged abuse is “indicated.”

That credible evidence standard is established where the

available facts, viewed in light of the surrounding circum-

stances, would cause a reasonable person to believe that

a child was abused or neglected. Dupuy, 397 F.3d at 497.

As interpreted by DCFS employees, however, the credible

evidence standard resulted in consideration only of

inculpatory evidence. Id. at 504. “Any” credible evidence

was sufficient to cause them to indicate a finding, without

any consideration of exculpatory evidence. Id. We agreed

with the district court in Dupuy that due process re-

quired that equal consideration be given to both

No. 05-3587 9

inculpatory and exculpatory evidence in determining

whether credible evidence of abuse or neglect existed. Id.

at 504-06.

That is the essence of the complaint in this case as

well. Boyd argues that the investigation was poorly

developed and that exculpatory evidence either was not

obtained or was ignored. That deficiency underlies all of

his complaints in this case. In Dupuy, we were presented

with a scenario in which an indicated finding would

result in the immediate termination of employment, be-

cause the employee was in the child care profession. Id. at

497, 499, 503. Accordingly, the private interest at stake

was even more substantial than here, because indicated

findings are not automatically transmitted to law enforce-

ment employers as they are to child care employers. We

agreed with the district court that in that context, the

investigators determining whether credible evidence

existed to indicate abuse must consider equally exculpa-

tory and inculpatory evidence in order to comport with due

process. Id. at 504-06. Although not dispositive of this

case, because the interest at stake was potentially greater

in Dupuy, this decision provides strong support for a

determination that the procedures used in this case

were constitutionally inadequate. The indicated finding

had an impact on Boyd’s liberty interest in his employ-

ment by arguably leading to his termination in this case,

as there was some evidence in the record that an indicated

finding would operate as a bar to all law enforcement

employment (and, as explained above, any argument to

the contrary was not presented to the district court). Yet,

the investigators initially decided to indicate Boyd for

abuse the night they examined Sarah, and based that

indication almost entirely on her statement that Boyd

was responsible for the bruising. That is not to say that

the investigators could not have constitutionally reached

that conclusion. The initial hotline report had identified

10 No. 05-3587

Boyd as the perpetrator and identified the locale of the

bruising, and the physical evidence corroborated that

claim. Sarah then identified Boyd, which again was

consistent with the hotline report and with the subsequent

interview of Knight. But, the investigators did not attempt

to develop or consider alternate explanations. They

failed to consider past records documenting abuse of

Sarah by others, or her psychiatric condition, and failed to

provide Boyd with an opportunity to respond prior to the

indicated finding. That focus solely on inculpatory evi-

dence, to the exclusion of exculpatory evidence, fails to

comport with the requirements of due process, and accord-

ingly Boyd has demonstrated that the actions presented a

constitutional violation.

That does not end the inquiry, however, because quali-

fied immunity nevertheless protects the defendants

unless the constitutional right that was violated was

clearly established. A plaintiff can establish that a right

was clearly established by

presenting case law that “has both articulated the

right at issue and applied it to a factual circumstance

similar to the one at hand.”. . . [T]hese decisions must

demonstrate that, at the time the defendants acted,

it was certain that their conduct violated the law. . . .

“This is not to say that an official action is protected

by qualified immunity unless the very action in ques-

tion has previously been held unlawful; but it is to

say that in the light of pre-existing law the unlawful-

ness must be apparent.”

Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 620 (7th

Cir. 2002) [citations omitted]. In the absence of precedent,

a right may be clearly established where the contours of

the right are sufficiently clear that reasonable persons

would have understood their conduct to be unconstitu-

tional, or where the constitutional violation is so patently

No. 05-3587 11

obvious that widespread compliance with the law has

prevented the court from reviewing it. Nanda v. Moss, 412

F.3d 836, 844 (7th Cir. 2005). In other words, qualified

immunity protects the defendants unless the unconstitu-

tionality of their actions was apparent, either because

a case on point or closely analogous establishes the

unconstitutionality of their actions, or because the con-

tours of the right are so established as to make the

unconstitutionality obvious.

The plaintiff has the burden of establishing that the

constitutional right was clearly established. Nanda, 412

F.3d at 844; Sonnleitner, 304 F.3d at 716-17. Boyd has

entirely abdicated that burden, failing in both the dis-

trict court and this court to identify any case clearly

establishing that such conduct was unconstitutional, or

that any line of cases would put the defendants on notice

of such unconstitutionality. In the district court, Boyd

presented only this court’s Dupuy case, which we have

already noted was decided after the conduct at issue here

and therefore could not have possibly apprised them of

the unconstitutionality at the time. Nor would the district

court decision in Dupuy have been of any help, as Boyd

apparently recognizes because he does not rely on it, given

our court’s holding that district court decisions have no

weight as precedents and therefore cannot clearly estab-

lish a constitutional right. Anderson v. Romero, 72 F.3d

518, 525 (7th Cir. 1995).

In this court, Boyd cites only to Jones v. Wilhelm, 425

F.3d 455 (7th Cir. 2005), which is irrelevant on many

levels. First, it was decided in 2005 and therefore could not

possibly have apprised the defendants of the unconstitu-

tionality of their actions in 2003. Moreover, it has noth-

ing to do with the actions at issue here, as it addressed

whether officers who mistakenly entered an apartment to

serve a search warrant intended for a different address

12 No. 05-3587

were protected by qualified immunity. Boyd makes no

attempt to explain how that Fourth Amendment challenge

to the execution of a warrant by officers could have

apprised the defendants that the failure to consider

exculpatory evidence in applying the credible evidence

standard would be unconstitutional. Boyd has failed to

provide any other case at all, even though this issue was

a central argument below and in this court. Perhaps that

is because Boyd cannot do so. Although some cases held

that the failure to consider exculpatory evidence in find-

ing credible evidence of abuse was unconstitutional

when coupled with a delay in providing a post-deprivation

adversarial hearing, there was no argument of such a

delay in this case. See, e.g., Doyle, 305 F.3d at 619 (process

of determining credible evidence on any plausible evi-

dence of abuse or neglect without weighing conflicting

evidence may be adequate in certain circumstances, but

violates due process where coupled with an unnecessary

and burdensome delay in obtaining a post-deprivation

hearing); Lyon, 807 N.E.2d at 435-36 (credible evidence

standard, which does not require fact finder to consider

contrary evidence, to indicate a report does not auto-

matically violate due process, but may violate due process

when the subject is not accorded a prompt appeal). We

need not speculate as to whether Boyd could have suc-

ceeded on this claim, however, for he presents neither

those cases or any other cases. He has failed to meet his

burden of demonstrating that the constitutional viola-

tion was clearly established, and the defendants are

entitled to qualified immunity. We REVERSE the order of

the district court and REMAND with directions to enter

summary judgment for the defendants on qualified im-

munity grounds.

No. 05-3587 13

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-22-07