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November 10, 2004.

TONISHA VIA, Plaintiff,

The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


Tonisha Via filed suit against four employees and officials of the Department of Child Protection ("DCP") of the Illinois Department of Children and Family Services ("DCFS") pursuant to 42 U.S.C. § 1983 and Illinois law. Via alleges that she was falsely accused of mistreating a child in her care and as a result was blacklisted from her profession as a child care teacher, and that the defendants also should be held liable for intentional infliction of emotional distress. Defendants have moved for summary judgment on Via's federal law claims based on qualified immunity and on her state law claims based on immunity and insufficient pleading.

For the reasons stated below, the Court grants summary judgment in favor of Montalvo, Goad, and Eads' favor on Via's § 1983 claim but denies summary judgment for LaGrand on the § 1983 claim as well as on the state law claims against all four defendants. Facts and Procedural History

  Via was employed as a child care teacher at KinderCare Learning Centers, Inc., in Elgin, Illinois. On the afternoon of April 11, 2001, Via was caring for a six-month old child, Madison L., who was enrolled at KinderCare. Via claims that Madison L. was unusually upset that afternoon and had demonstrated similar behavior the previous day. Compl. ¶¶ 35, 36. While changing Madison's diaper, Via noticed that the baby was experiencing pain in her left leg. Via notified another teacher and the facility's director, who also examined the girl and decided to call Madison's mother. Madison's mother picked up her daughter and took her to a hospital, where it was determined that she had a broken left leg. Id. ¶ 39.

  DCFS has procedures by which it investigates, reports and tracks allegations of child abuse pursuant to the requirements of the Illinois Abused and Neglected Child Reporting Act ("ANCRA"), 325 ILCS 5/1 et seq. DCFS operates the Child Abuse and Neglect Tracking System ("CANTS") in accordance with this mandate. Under CANTS, any time the Child Abuse Hotline receives a phone call alleging child abuse, child welfare professionals with DCFS investigate the report and determine if the person accused is responsible for the act. Specifically, the investigators determine whether abuse is "indicated" based upon the existence of "credible evidence," or whether the report is "unfounded."

  We are not provided with information indicating how DCFS became involved in investigating Madison's broken leg. Shortly after April 11, 2001, however, defendant Sandra LaGrand, a DCP investigator, conducted an investigation into the injury sustained by Madison. Defendant Roi Montalvo supervised LaGrand's investigation. Allegedly applying DCFS policies and procedures, Defendant LaGrand determined that there was credible evidence to support an indicated report of abuse of Madison against Via, and Montalvo approved this report. Compl. ¶ 42. Via alleges that despite the fact that there was no credible evidence against her, LaGrand recommended, and Montalvo approved, an "indicated" finding against her. Id. DCFS notified KinderCare of the finding, and Via was fired from her job there. Id. ¶ 43.

  Under CANTS, following the making of an indicated report, a final report is entered into a central register. 325 ILCS 5/7.7. The accused is not afforded an opportunity for a hearing before the report is entered into the register. Compl. ¶ 27(d). After receiving notice of an indicated report, the accused may appeal to DCFS for an administrative hearing before an Administrative Law Judge. Id. ¶ 24. The ALJ uses a preponderance of evidence test to determine guilt, as opposed to the credible evidence standard employed throughout the investigation. Id. ¶ 25. If the subject's appeal is successful, the DCFS Director makes a final decision whether the report should be expunged from the central register. Id. The indicated report remains in the register through the entire appeal process. Id. ¶ 27(f).

  The indicated report against Via was made on May 16, 2001; she received notice of the finding in a letter dated September 14, 2001. Via initiated the appeals process and appeared before an ALJ in October, 2002, approximately seventeen months after the initial report. Compl. ¶ 46. Via alleges that the ALJ repeatedly advised DCFS during the hearing to expunge the report from its records but that the Assistant Associate Deputy Director for Child Protection in Cook County, Mary Ellen Eads, refused to expunge the report. Id. Via further alleges that John Goad, the Associate Deputy Director for Child Protection, supported Eads' decision to resist expungement. The report was ultimately expunged on January 16, 2003, exactly twenty months after the indicated report was made, after the ALJ issued a written recommendation for expungement. Id.

  Following the expungement, Via filed suit against LaGrand, Montalvo, Eads, and Goad, alleging that they violated her constitutional rights under 42 U.S.C. § 1983 and committed intentional infliction of emotional distress under Illinois law. Via claimed that LaGrand and Montalvo's use of the credible evidence standard in indicating her for child abuse or neglect violated due process. As to Goad and Eads, Via claimed that their maintenance and enforcement of the credible evidence standard throughout the investigation and appeal of her case violated due process. In addition, she alleged that the evidence against her failed to meet even the credible standard and that indicating her for child abuse violated due process irrespective of the standard that properly applies. Compl. ¶ 1.

  All four defendants moved to dismiss Via's claims based on qualified immunity and Via's failure to allege their personal involvement in any constitutional violation. The Court granted the motion in part and denied it part. Via v. LaGrand, et al., No. 03 C 3278, 2003 WL 22901210, * 2 (N.D. Ill. Dec. 9, 2003). The Court first rejected defendants' personal involvement claims. Id. The Court then moved on to the qualified immunity inquiry and ruled that allegations in Via's complaint were insufficient to defeat qualified immunity for Goad or Eads because they were charged with relying on subordinates and therefore could not be held liable for intentional deprivation of Via's constitutional rights. Id. at *5. With respect to LaGrand and Montalvo, the Court ruled they could not be held liable for their use of the credible evidence standard because the unconstitutionality of that standard was not yet clearly established at the time of the investigation of Via.*fn1 Id. at *4. The Court did, however, direct LaGrand and Montalvo to answer Via's § 1983 claim based on the theory that they indicated her without any supporting evidence at all. Id. Finally, the Court directed all four defendants to answer Via's state law claims. Id.

  After the Court's ruling on the motion to dismiss, Via amended her complaint to add allegations against Goad and Eads in an effort to defeat qualified immunity. She now alleges that their resistance to expungement even after finding out that there was no credible evidence against Via violated due process. Am. Compl. ¶¶ 9-10.


  Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party and draws reasonable ...

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