as applied to the facts of Doyle. Defendants were not on notice that this system violated due process rights until Doyle (or at least Dupuy), after the actions in this case. They are therefore entitled to qualified immunity as to this part of plaintiffs' claims and plaintiffs must allege involvement beyond the participation in the DCFS policies by each of the named defendants in order to survive this motion to dismiss.
A. Beckelman and Jones
Plaintiffs clearly allege personal involvement by Beckelman and Jones in the deprivations. First, they allege that Beckelman and Jones intentionally or recklessly falsified or ignored evidence in reaching their conclusions. Second, that Jones and Beckelman were directly responsible for the investigations and the banishment directives and were personally responsible for communicating the orders to Cradles and Stacey DeLaFont.
Plaintiffs likewise allege the requisite personal involvement of defendant Glenney. While Glenney relied on the determinations made by Jones and Beckelman, plaintiffs allege that she had an independent responsibility to review the findings and make determinations. In her role as a screen against erroneous determinations, Glenney cannot simply avoid liability by relying on the determinations of those under her control.
C. McKenzie and Cohen-Golper
Defendant McKenzie and her supervisor Cohen-Golper were responsible for continuing and monitoring the banishment directive after the indicated finding was made. There are no allegations that McKenzie or Cohen-Golper independently evaluated evidence against Patrick or made any discretionary decisions as to leaving the directives in place. As such, reasonable officials in their positions could rely on the findings made by other DCFS officers. The allegations are not sufficient to show personal liability of McKenzie or Cohen-Golper.
Likewise, plaintiffs do not sufficiently allege the personal involvement of Eads. There is nothing in the complaint to indicate that Eads played any role in the events until after the appeals process had started. At that time she refused to lift the plans that had been put into effect by her co-workers. Again, there is no indication that she independently evaluated the evidence against the plaintiffs or that she was unreasonable in relying on the findings of the investigators.
Everette-Williams' role involved entering names into the register after an indicated finding was made and monitoring the DCFS hotline. There are no allegations that her role exceeded the performing of these administrative tasks. While the court in Doyle did determine that plaintiffs adequately alleged personal involvement in the deprivation, that finding went to Everette-Williams' role in the creation and development of the DCFS credible evidence policy. 305 F.3d at 615. As stated above, she is entitled to qualified immunity as to these allegations. Beyond this, plaintiffs do not sufficiently allege personal involvement of Everette-Williams.
III. Qualified Immunity
As a general rule, courts engage in a two-part inquiry to determine whether a defendant is immune from damages. We first determine whether the plaintiff has adequately alleged the deprivation of a constitutional right without due process and then determine whether the right was clearly established at the time of the alleged violation. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); see also Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). This methodology "promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the public." Wilson, 526 U.S. at 609, 119 S.Ct. 1692.
A. Count I — Family Autonomy
To satisfy the first prong of the test plaintiffs must establish that they were deprived of a constitutional right without due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Plaintiffs allege that their right to family autonomy was deprived when the banishment directives were put into place without a strong governmental interest, post-deprivation process or sufficient evidence. They further allege that the investigation was mishandled either intentionally or recklessly by Beckelman and Jones.
The right to family autonomy has long been recognized by the Supreme Court. See Prince, 321 U.S. at 166, 64 S.Ct. 438. Any deprivation of this right must therefore be accompanied by due process. The Constitution requires that when such a deprivation takes place, the individual who suffers the deprivation must be offered adequate notice and a reasonable opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). This does not necessarily mean that an individual is entitled to a full pre-deprivation hearing. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-47, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) Often, a prompt post-deprivation hearing will provide a sufficient opportunity for the deprived individual to be heard. See Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988). This is especially true when the state also possesses a compelling interest, such as that of protecting children from abuse or neglect. See Croft v. Westmoreland County Children and Youth Services, 103 F.3d 1123, 1125 (3rd Cir. 1997).
In determining whether plaintiff received due process, we apply three factors: (1) the nature of the private interest affected by the state action; (2) the risk of error and the potential effect of additional safeguards; and (3) the governmental interest. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Here, treating plaintiffs' allegations as true, the deprivation occurred without any evidence that Patrick has sexually abused his own children. Furthermore, they had no meaningful opportunity to present evidence at a pre- or post-deprivation hearing. Finally, plaintiffs allege intentional misconduct by Beckelman and Jones during the investigation.
Taking plaintiffs' allegations as true, they were deprived of their right to family autonomy without due process. At the very least, they were entitled to a hearing at which they could present evidence. Also, if the determination to remove Patrick from the home was unsupported by evidence, the deprivation was unlawful. While the state has a compelling interest in protecting children, this does not excuse them from providing fair process before taking a drastic step such as separation of the family.
A reasonable person in the defendants' position would have recognized that their alleged actions were unconstitutional. Before the events giving rise to plaintiffs' claims, the Seventh Circuit had determined that, absent exigent circumstances, children should not be separated from their family without a pre-deprivation hearing. Brokaw, 235 F.3d at 1020. Here, plaintiffs allege a deprivation absent sufficient evidence and absent any pre- or post-deprivation hearing. Also, defendants' allegedly intentional or reckless conduct is not protected by qualified immunity. At a bare minimum, we expect the officers to conduct the investigation properly. See id. Defendants Beckelman, Jones and Glenney's motion to dismiss count I is denied.
B. Count II — Career Opportunity
Plaintiffs cannot demonstrate that the initial banishment directive derived Patrick of a constitutionally protected right when he was forced to leave Cradles. DCFS is in a very sensitive position regarding child care services. The state has a compelling interest in the protection of children. Applying the Mathews factors to this alleged deprivation, the state acted reasonably in immediately stopping a child care worker from continued employment upon hearing of potential sexual abuse. DCFS must take each and every allegation of sexual abuse seriously.
The continued deprivation of Patrick's career is a different matter. While he has no constitutionally-protected interest in his reputation, he may state a deprivation if he shows that a state action has made it virtually impossible to find employment in his chosen field. Doyle, 305 F.3d at 617, citing Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001). When Patrick became listed in the register, the state's action had this effect. Plaintiffs' allegations here are nearly identical to those in Doyle and Dupuy. In both cases the courts determined that the DCFS policies leading to registration violated plaintiffs' rights. These cases were decided after the events at issue in this case. Plaintiffs' allegations, if they occurred today, would erase qualified immunity. Defendants in this case could not reasonably have known that they were acting in violation of constitutional rights.
Defendants cannot rely on qualified immunity to defeat the improper investigation claims. While it is true that plaintiffs must allege something more than gross negligence in an investigation, Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir. 2002), qualified immunity will not defeat a claim of intentional malfeasance. Insofar as the complaint alleges intentional or reckless wrongdoing by Beckelman and Jones, the motion to dismiss Count II is denied.
For the foregoing reasons, defendants McKenzie, Cohen-Golper, Eads and Everette-Williams' motion to dismiss is granted, defendants Beckelman, Jones and Glenney's motion to dismiss count I is denied, Glenney's motion to dismiss count II is granted, and Beckelman and Jones' motion to dismiss count II is denied insofar as plaintiffs allege misconduct in the investigation.
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