Lorene Mann v. Meldon Vogel

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