United States District Court, N.D. Illinois, Eastern Division
SAFARI CHILDCARE INC. and JAMES OURTH, Plaintiffs,
SHIRLEY PENNY, DENICE MURRAY, CAROL MORRIS, RICHARD ALEXANDER, JOEL LAMZ, STANY D'SOUZA, EDIE WASHINGTON GURLEY, JOSE ALEX MEDINA, FRANK NEUMAN, HELEN CROSS, BETH GIRARDIER, MARY LIVORSI, LESLIE PARELLO-HORTON, JODI GOLEMBIEWSKI, JODINE WILLIAMS, EVA CAMACHO, ROBERT MUSIAL, DONNA RIEDL, GWENDOWLYN AMBER, COURTNEY MARSHALL, and STACEY SMITH, Defendants.
MEMORANDUM OPINION AND ORDER
Feinerman United States District Judge
Childcare Inc., which operates daycare centers in the Chicago
area, and James Ourth, Safari's owner, bring this suit
under 42 U.S.C. § 1983 against twenty-one Illinois
Department of Children and Family Services
(“DCFS”) employees. Doc. 52. The court dismissed
without prejudice the original complaint on group pleading
grounds. Docs. 43-44 (reported at 2018 WL 4144637 (N.D. Ill.
Aug. 30, 2018)). In so doing, the court observed that if
Plaintiffs elected to file an amended complaint, they should
“identify … which defendant is alleged to have
done what.” 2018 WL 4144637, at *3. Plaintiffs took the
court's direction to heart, filing an amended complaint
that has far greater detail-and far greater length-than the
original complaint. Defendants now move under Civil Rules
12(b)(1) and 12(b)(6) to dismiss the amended complaint. Doc.
59. The motion is denied.
resolving a Rule 12(b)(1) motion asserting a facial challenge
to subject matter jurisdiction, as in resolving a Rule
12(b)(6) motion, the court assumes the truth of the operative
complaint's well-pleaded factual allegations, but not its
legal conclusions. See Zahn v. N. Am. Power & Gas,
LLC, 815 F.3d 1082, 1087 (7th Cir. 2016) (Rule
12(b)(6)); Silha v. ACT, Inc., 807 F.3d 169, 173
(7th Cir. 2015) (Rule 12(b)(1)). The court must also consider
“documents attached to the complaint, documents that
are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice,
” along with additional facts set forth in
Plaintiffs' brief opposing dismissal, so long as those
additional facts “are consistent with the
pleadings.” Phillips v. Prudential Ins. Co. of
Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal
quotation marks omitted). The facts are set forth as
favorably to Plaintiffs as those materials permit. See
Domanus v. Locke Lord, LLP, 847 F.3d 469, 478-79 (7th
Cir. 2017). In setting forth the facts at this stage, the
court does not vouch for their “objective truth.”
Goldberg v. United States, 881 F.3d 529, 531 (7th
Illinois agency charged with regulating child care
facilities, DCFS was responsible for inspecting and licensing
Safari's daycare centers. Doc. 52 at ¶¶ 10-11;
see 225 ILCS 10/1 et seq.; 89 Ill. Admin.
Code § 407.40 et seq. Between 1991 and 2009,
Plaintiffs did not experience any significant problems with
DCFS. Doc. 52 at ¶¶ 8, 14, 17.
Ourth complained and Safari staff called the police in 201
regarding certain DCFS employees' conduct while
inspecting Safari facilities, various DCFS employees delayed
action on Safari's applications to open three daycare
centers and to expand operations at a fourth. Id. at
¶¶ 18-24, 31-34. As the delays continued, Safari
enlisted Illinois elected officials to speak with DCFS about
those applications. Id. at ¶¶ 34-36, 39.
Safari's counsel told DCFS in January 2012 that it would
commence a public campaign regarding its complaints about
DCFS. Id. at ¶¶ 48-49. Between 2011 and
2013, Safari representatives met multiple times with DCFS
staff to discuss continuing issues with DCFS's inspection
and licensing of its daycare centers. Id. at
¶¶ 40, 43, 50-53, 55, 59-60, 109-110.
result of Safari's continued engagement with Illinois
elected officials and repeated calls to the police about the
conduct of DCFS employees during inspections of Safari
facilities, various DCFS employees secretly agreed to
increase their inspection and enforcement efforts against
Safari. Id. at ¶¶ 53-54, 68-71, 102.
Denice Murray, a defendant here and DCFS's Deputy
Director of Licensing from early 2012 to September 2016,
orchestrated the retaliatory scheme after a heated meeting on
April 20, 2012 between DCFS representatives, Safari
representatives, and Illinois elected officials. Id.
at ¶¶ 50, 53-54, 102, 184-185. The scheme consisted
of Defendants delaying the licensing process for Safari
facilities; more frequently conducting unannounced
inspections; requesting parental contact information for
random surveys; failing to provide clear violation reports or
realistic corrective plans; reversing DCFS's position on
the qualifications of Safari's teachers; demanding strict
compliance with DCFS licensing standards, rather than the
reasonable compliance required by DCFS rules; and falsely
testifying in administrative hearings. Id. at
¶¶ 64, 71-74, 76, 80, 87-92, 102-103, 169, 368,
558, 623, 646.
increased enforcement efforts resulted in nine of
Safari's eleven daycare centers closing between 2015 and
• After DCFS in 2013 issued two notices of intent to
revoke Safari's license for its McHenry daycare center,
Safari closed the facility on May 29, 2015, prior to the
conclusion of administrative proceedings. Id. at
¶¶ 108, 115, 132-133; Doc. 66-4. Despite this
voluntary closure, a news report quoted DCFS employee
Veronica Reza as stating, “Basically [the McHenry]
license was revoked.” Doc. 52 at ¶ 134 (quoting
Katie Dahlstrom, McHenry Child Care Center Loses License,
Closes After State Probe, Nw. Herald (May 29, 2015),
• DCFS ordered Safari's Algonquin Road daycare
center closed in late 2014, despite the facility's 95%
compliance rating. Id. at ¶¶ 100, 125,
128-129. Although the state court vacated the closure order,
thereby allowing the center to reopen in January 2015, a DCFS
representative had already encouraged parents to use other
daycare centers. Id. at ¶¶ 128-131. After
further administrative proceedings, a state administrative
law judge (“ALJ”) revoked Safari's Mt.
Algonquin license, Doc. 66-8 at 26, and the center closed on
July 27, 2017. Doc. 52 at ¶ 160.
• Although Safari eventually received a license to open
a daycare center in Highland Park, DCFS never renewed the
license, so Safari closed the facility on June 30, 2015.
Id. at ¶¶ 18, 23, 136, 550.
• DCFS issued a notice to revoke the license for
Safari's Cary daycare center in May 2015 after reversing
its position on whether Safari's teachers were qualified.
Id. at ¶¶ 127, 137. Safari closed the
facility on December 29, 2015. Id. at ¶ 137.
• DCFS's director upheld an ALJ's decision to
revoke the license for Safari's East Dundee daycare
center in May 2016 on the ground that it was not in strict
compliance with DCFS standards. Id. at ¶¶
138, 140; Doc. 66-5 at 1. Safari closed the facility on June
3, 2016. Doc. 52 at ¶ 140. Safari sought review in the
state trial court, but voluntarily dismissed that action
without prejudice in June 2017, Doc. 66-6 at ¶ 1, after
the state appellate court affirmed the trial court's
denial of its emergency motion to stay enforcement of the
DCFS revocation order, Safari Childcare, Inc. v.
DCFS, 2016 WL 7434440 ( Ill. App. Dec. 23, 2016).
• After not receiving a response for some seven months
on its timely application to renew the license for its
Palatine daycare center, Safari closed the facility on
October 31, 2016. Doc. 52 at ¶¶ 143-145.
• In January 2017, after Safari provided DCFS with the
contact information for parents with children at its
Belvidere daycare center, DCFS representatives told the
parents that DCFS was shutting down all Safari facilities,
and also demanded impromptu interviews with the Belvidere
facility's staff. Id. at ¶¶ ...