Judges: Rovner
Filed: Aug. 30, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2220 REBIRTH CHRISTIAN ACADEMY DAYCARE, INC., Plaintiff-Appellant, v. MELANIE BRIZZI and MICHAEL GARGANO, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 12-cv-01067-SEB-DKL — Sarah Evans Barker, Judge. _ ARGUED JANUARY 5, 2016 — DECIDED AUGUST 30, 2016 _ Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges. ROVNER, Circuit Judge.
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-2220 REBIRTH CHRISTIAN ACADEMY DAYCARE, INC., Plaintiff-Appellant, v. MELANIE BRIZZI and MICHAEL GARGANO, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 12-cv-01067-SEB-DKL — Sarah Evans Barker, Judge. _ ARGUED JANUARY 5, 2016 — DECIDED AUGUST 30, 2016 _ Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges. ROVNER, Circuit Judge. R..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2220
REBIRTH CHRISTIAN ACADEMY DAYCARE, INC.,
Plaintiff‐Appellant,
v.
MELANIE BRIZZI and MICHAEL GARGANO,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 12‐cv‐01067‐SEB‐DKL — Sarah Evans Barker, Judge.
____________________
ARGUED JANUARY 5, 2016 — DECIDED AUGUST 30, 2016
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Rebirth Christian Academy
Daycare, an Indiana non‐profit corporation, ran a child care
ministry—a “child care operated by a church or religious
ministry that is a religious organization exempt from federal
income taxation.” IND. CODE § 12‐7‐2‐28.8. A state agency re‐
voked Rebirth’s registration after an inspector concluded
that the organization had violated several statutory and reg‐
2 No. 15‐2220
ulatory provisions governing registered child care minis‐
tries. Rebirth sued state officials for damages and injunctive
relief under 42 U.S.C. § 1983, claiming that they had violated
the due‐process clause of the Fourteenth Amendment by re‐
voking its registration without providing it with an oppor‐
tunity to be heard. The district court dismissed Rebirth’s in‐
dividual‐capacity claims, concluding that qualified immuni‐
ty protected the defendants from liability for civil damages
because they had not violated clearly established law. After
the parties developed an evidentiary record on the
official‐capacity claims, Rebirth ultimately prevailed on its
claims for injunctive relief. It now challenges the district
court’s dismissal of its claims for damages against the de‐
fendants sued in their individual capacities. We conclude
that, based on the allegations in the complaint, the defend‐
ants were not entitled to qualified immunity because they
violated clearly established law: the complaint adequately
alleges that they deprived Rebirth of a property interest
without first providing an opportunity for some type of
hearing. Accordingly, we reinstate Rebirth’s
individual‐capacity claims and remand for further proceed‐
ings.
I.
Child care ministries are extensively regulated by the
State of Indiana—specifically, by the Bureau of Child Care (a
sub‐agency of the Division of Family Resources, which is a
branch of the Indiana Family and Social Services
Administration, see IND. CODE §§ 12‐13‐6‐1, 12‐13‐1‐1).
Indiana statutes provide that, to operate a child care minis‐
try lawfully, a religious organization must either obtain a li‐
No. 15‐2220 3
cense from or register with the Bureau. Id. §§ 12‐17.2‐6‐1
to ‐2.
A religious organization may procure a license to operate
a child care ministry as either a “child care home” (a child
care located in a residential building, IND. CODE
§ 12‐7‐2‐28.6) or a “child care center” (a child care located in
a nonresidential building, id. § 12‐7‐2‐28.4). To secure either
type of license, a provider must submit an application with
supporting documents, id. §§ 12‐17.2‐4‐3, 12‐17.2‐5‐3; under‐
go site visits and inspections, id. §§ 12‐17.2‐4‐7, 12‐17.2‐4‐15
to ‐16, 12‐17.2‐5‐6, 12‐17.2‐5‐15 to ‐16; and get re‐licensed
every two years, id. §§ 12‐17.2‐4‐12(a), 12‐17.2‐5‐12(a).
To operate a registered (as opposed to licensed) child
care ministry lawfully, a religious organization must submit
an application to the Bureau, see Indiana Family & Social
Services Administration, The ABC’s of a Child Care Business,
at 7–8 (Nov. 2010), available at http://www.in.gov/fssa/files/
5236_The_ABCs_of_a_Child_Care_Business.pdf; pay a regis‐
tration fee of $50, IND. CODE § 12‐17.2‐6‐12; submit an appli‐
cation to Indiana’s Department of Homeland Security for the
state fire marshal (paying another $50), id. § 12‐17.2‐6‐13;
ABC’s of a Child Care Business, supra, at 8; and pass inspec‐
tions by both the State Fire Division Inspector and the
Bureau’s inspector, IND. CODE §§ 12‐17.2‐6‐4 to ‐5. (A regis‐
tered child care ministry must also submit to semiannual in‐
spections, id. § 12‐17.2‐6‐4, and re‐register annually, ABC’s of
a Child Care Business, supra, at 8.) A religious organization
that satisfies these requirements is issued a certificate of reg‐
istration showing that it is authorized to operate a child care
ministry without a license.
4 No. 15‐2220
The state may revoke a child care ministry’s certificate of
registration only “if the operator or an employee of the child
care ministry violates” the statutes or regulations governing
registered ministries. IND. CODE § 12‐17.2‐6‐9. A license to
operate a child care ministry likewise may be revoked only
for a violation of the law. Id. §§ 12‐17.2‐4‐33, 12‐17.2‐5‐33.
State law affords a procedure for administratively appealing
the revocation of a license (and allows a licensed child‐care
provider to continue operating while such an appeal is
pending). See id. §§ 12‐17.2‐4‐33(b)(1), 12‐17.2‐4‐19 to ‐22,
12‐17.2‐5‐33(b)(1), 12‐17.2‐5‐19 to ‐22. But Indiana’s statutory
scheme does not give providers an administrative oppor‐
tunity to challenge the Bureau’s decision to revoke a
certificate of registration.
Rebirth obtained a certificate of registration and began
operating a child care ministry in late 2009. In mid‐2012, a
representative of the Bureau conducted an unannounced in‐
spection of the ministry. After the inspection, the Bureau
gave Rebirth a document titled “Plan of Improvement,”
which stated that Rebirth had violated statutes and regula‐
tions governing registered child care ministries. The Plan of
Improvement alleged eight violations; it also directed
Rebirth to cure the purported infractions and submit proof
within ten days that it had done so. The document did not,
however, offer any procedure for challenging the Bureau’s
findings.
Rebirth believed that it had not committed any of the vio‐
lations identified by the Bureau and thus did not submit any
documentation showing that it had cured the violations al‐
leged in the Plan of Improvement. Shortly after the deadline
for submitting the documentation had passed, Melanie
No. 15‐2220 5
Brizzi, the head of the Bureau, sent Rebirth a letter notifying
the organization that the Bureau would terminate Rebirth’s
certificate of registration in two weeks because of Rebirth’s
failure to provide evidence that it had cured the purported
violations. Like the Plan, the notice of termination did not
give Rebirth a chance to challenge the Bureau’s findings or
its decision to terminate Rebirth’s registration.
Rebirth nonetheless sent the Bureau a letter requesting an
opportunity to appeal administratively the agency’s impend‐
ing termination of the registration. Brizzi responded with a
letter of her own, telling Rebirth that “[t]he Indiana General
Assembly did not provide for an administrative appeal pro‐
cess for the loss of” a certificate of registration and that
therefore the Bureau would not grant “an administrative ap‐
peal review process before the Division of Family Resources.”
The Bureau terminated Rebirth’s registration without any
hearing, and Rebirth ceased operating the child care minis‐
try.
The following month, Rebirth filed a lawsuit claiming
that the Bureau had violated its right to due process under
the Fourteenth Amendment by terminating its registration
without first providing Rebirth with an opportunity to chal‐
lenge the termination. In Rebirth’s first amended complaint
(the complaint relevant to this appeal), it named as defend‐
ants Brizzi and Michael Gargano, who was the Secretary of
the Indiana Family and Social Services Administration and
who oversaw the Bureau when it terminated Rebirth’s regis‐
tration. Rebirth sued the defendants in both their individual
and official capacities, seeking damages and injunctive relief.
Early in the litigation, the district judge granted the
defendants’ motion to dismiss the individual‐capacity claims
6 No. 15‐2220
on the ground of qualified immunity. The judge noted that
the procedures of the Family and Social Services
Administration do not require an administrative appeals
process and reasoned that, in light of this fact, Brizzi and
Gargano did not act contrary to clearly established law when
they failed to provide Rebirth with an administrative hear‐
ing or “to otherwise take unilateral action to change” the
agency’s procedures.
Rebirth’s official‐capacity claims went forward. After the
parties cross‐moved for summary judgment, the district
judge entered judgment for Rebirth on the official‐capacity
claims, reasoning that Rebirth was deprived of a property
interest without due process. See Rebirth Christian Acad.
Daycare, Inc. v. Brizzi, 96 F. Supp. 3d 835 (S.D. Ind. 2015). The
judge explained that when “state law gives people a benefit
and creates a system of nondiscretionary rules governing
revocation or renewal of that benefit, the recipients have a
secure and durable property right.” Id. at 845 (quoting
Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir. 1988)). And,
the judge continued, because “Indiana law provides that
child care ministries are entitled” to a certificate of registra‐
tion “as long as they are in compliance with” the relevant
statutes and regulations, Rebirth “has a property interest in
its certificate of registration as an unlicensed child care min‐
istry to which due process protections apply.” Id. The district
judge concluded that the process provided by the agency—
notice provided by the Plan of Improvement and only
post‐deprivation judicial remedies proposed by the defend‐
ants—“do not provide a level of process that comports with
the due process requirements.” Id. at 849. The judge ex‐
plained that the Plan of Improvement did not provide ade‐
quate process because it afforded Rebirth an opportunity
No. 15‐2220 7
“only to correct alleged violations, but not challenge them.”
Id. at 850. Although an informal challenge by Rebirth to the
findings in the Plan might be resolved by the individual in‐
spector, “[s]uch an ad hoc and unpredictable process can
hardly be considered to comport with procedural due pro‐
cess standards.” Id. The district judge also determined that
the post‐deprivation judicial remedy identified by the de‐
fendants (an action in tort) did not provide due process be‐
cause no tort claim exists under Indiana law that would pro‐
vide relief to Rebirth. Id. at 851–52.
In the order granting Rebirth’s motion for summary
judgment, the district judge directed the parties to confer
and “reach an agreement regarding administrative proce‐
dures that meet the requirements” of due process. Rebirth,
96 F. Supp. 3d at 852. After discussions, the parties proposed
that the district judge enter a permanent injunction ordering
the Family and Social Services Administration to provide
registered child care ministries with “the same administra‐
tive appeal process as provided to licensed child care centers
for enforcement actions.” The district judge entered the
permanent injunction proposed by the parties.
II.
On appeal, Rebirth challenges the district court’s dismis‐
sal of the individual‐capacity claims against Brizzi and
Gargano. Rebirth maintains that the defendants are not
entitled to qualified immunity because, at the time its
registration was terminated, the law clearly established that
Rebirth had a property interest in its registration as a child
care ministry and that the defendants could not deprive
Rebirth of this property interest without first allowing it an
opportunity to be heard.
8 No. 15‐2220
Rebirth can overcome the qualified‐immunity defense
(which protects government officials from liability from civil
damages) only if we conclude (1) that the defendants violat‐
ed a constitutional right and (2) that the constitutional right
was clearly established at the time of the violation. See Wood
v. Moss, 134 S. Ct. 2056, 2066–67 (2014); Ashcroft v. al‐Kidd,
563 U.S. 731, 735 (2011); Novoselsky v. Brown, 822 F.3d 342,
354 (7th Cir. 2016). The appellees (Brizzi and Gargano) ac‐
cept the district court’s ruling that they violated Rebirth’s
constitutional right. Thus, we address only the question
whether the constitutional right at issue was clearly estab‐
lished at the time of the violation.
Rebirth’s due‐process claim requires a two‐step analysis:
“The first step requires us to determine whether the plaintiff
has been deprived of a protected interest; the second re‐
quires a determination of what process is due.” Doherty v.
City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996) (citing Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Forbes v. Trigg,
976 F.2d 308, 315 (7th Cir. 1992)); see Kentucky Depʹt of Corr. v.
Thompson, 490 U.S. 454, 460 (1989); Barrows v. Wiley, 478 F.3d
776, 780 (7th Cir. 2007). We therefore begin with the question
whether the law clearly established that Rebirth had a prop‐
erty interest in its registration as a child care ministry. We
conclude that the answer is yes.
This question is not a close one, as the law on this issue
has been clearly established for decades. As we said almost
thirty years ago (and have since repeated), “[w]here state
law gives people a benefit and creates a system of nondiscre‐
tionary rules governing revocation or renewal of that benefit,
the recipients have a secure and durable property right, a
legitimate claim of entitlement.” Cornelius v. LaCroix,
No. 15‐2220 9
838 F.2d 207, 210 (7th Cir. 1988); see Kvapil v. Chippewa Cty.,
Wis., 752 F.3d 708, 713 (7th Cir. 2014); Barrows, 478 F.3d
at 780; Talley v. Lane, 13 F.3d 1031, 1035 (7th Cir. 1994); Contʹl
Training Servs., Inc. v. Cavazos, 893 F.2d 877, 893 (7th Cir.
1990). Here, the state did exactly that: it gave Rebirth a bene‐
fit—a certificate of registration entitling it to operate a child
care ministry—and created a system of rules defining when
the state could revoke that entitlement. See IND. CODE
§ 12‐17.2‐6‐9 (providing that child care ministry’s certificate
of registration may be revoked only “if the operator or an
employee of the child care ministry violates” the statutes or
regulations governing registered ministries). Thus, any rea‐
sonable government official would have understood that
Rebirth had a property interest in its registration as a child
care ministry. See Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015)
(“To be clearly established, a right must be sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” (quoting Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012)).
Numerous Supreme Court decisions reinforce our
conclusion that, because Rebirth was entitled to retain its
registration unless it violated state law, Rebirth’s ability to
operate a registered child care ministry was a clearly pro‐
tected property right at the time that the defendants revoked
its registration. See, e.g., Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 538–39 (1985) (holding that classified civil ser‐
vice employees had property rights in continued employ‐
ment where state statute provided that such employees
could be dismissed only for cause); Barry v. Barchi, 443 U.S.
55, 64 (1979) (holding that trainer had property interest
in horse‐training license where state law provided that li‐
cense could be suspended “only upon a satisfactory showing
10 No. 15‐2220
that his horse had been drugged and that he was at least
negligent in failing to prevent the drugging”); Mackey v.
Montrym, 443 U.S. 1, 10 (1979) (“[S]uspension of a driver’s
license for statutorily defined cause implicates a protectible
property interest … .”); Goldberg v. Kelly, 397 U.S. 254, 262
(1970) (recognizing property interest in welfare benefits be‐
cause “[s]uch benefits are a matter of statutory entitlement
for persons qualified to receive them”).
These decisions thus demonstrate that the question
whether Rebirth had a protected property interest in its reg‐
istration was beyond debate. See al‐Kidd, 563 U.S. at 741 (ex‐
plaining that case directly on point is not required for consti‐
tutional right to be clearly established; rather, “existing prec‐
edent must have placed the statutory or constitutional ques‐
tion beyond debate”); Estate of Escobedo v. Bender, 600 F.3d
770, 781 (7th Cir. 2010) (“[E]ven where there are notable fac‐
tual distinctions between the precedents relied on and the
case before the Court, if the prior decisions gave reasonable
warning that the conduct at issue violated constitutional
rights they can demonstrate clearly established law.”);
McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004) (“The sali‐
ent question is not whether there is a prior case on all fours
with the current claim but whether the state of the law at the
relevant time gave the defendants fair warning that their
treatment of the plaintiff was unconstitutional.”).
The appellees respond that Rebirth’s property interest
was not clearly established because the registration is “not a
license but [is] an exemption from licensure.” But an argu‐
ment over semantics does not get the appellees anywhere
because, when determining the existence of a property inter‐
est, “we must look behind labels.” Reed v. Vill. of Shorewood,
No. 15‐2220 11
704 F.2d 943, 948 (7th Cir. 1983). “A license is nothing but a
promise by the issuing body not to interfere in business con‐
ducted according to its terms.” Natʹl Paint & Coatings Assʹn v.
City of Chicago, 45 F.3d 1124, 1129 (7th Cir. 1995) (citing River
Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir.
1994); Toulabi v. United States, 875 F.2d 122 (7th Cir. 1989)).
Thus, the certificate of registration that Rebirth obtained was
a de facto license; the appellees’ referring to it as an “exemp‐
tion” does not persuade us to treat it otherwise.
The appellees also maintain that “[t]he fact that a reason‐
able official would know that a license to operate is a proper‐
ty interest does not mean that the official would know that
an exemption from the licensure requirement is also a prop‐
erty interest.” They contend that “[i]t is not unreasonable for
a public official to believe that an exemption from licensure
differs from a license, because even if the exemption is lost
the entity can continue to operate if it obtains a license.” This
argument misses the point. Even if Rebirth could have re‐
quested a license after the defendants had revoked its regis‐
tration, a reasonable official would nonetheless have under‐
stood that Rebirth had a property interest in the uninter‐
rupted registration of its child care ministry. If anything, the
purported distinction between a license and registration
goes only to the value of a registration, not its status as a
property interest; as the appellees point out in their brief,
“[t]he requirements for registering and operating an unli‐
censed child care ministry are less extensive than the re‐
quirements for operating a licensed child care center or
home.”
The only question that remains is whether the manner in
which the appellees deprived Rebirth of its property interest
12 No. 15‐2220
violated clearly established law. Here, too, we conclude that
the answer is yes. “An essential principle of due process is
that a deprivation of life, liberty, or property ‘be preceded by
notice and opportunity for hearing appropriate to the nature
of the case.’” Loudermill, 470 U.S. at 542 (quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). It
has long been clearly established that the “root requirement”
of due process is that a person “be given an opportunity for
a hearing before he is deprived of any significant property
interest, except for extraordinary situations where some val‐
id governmental interest is at stake that justifies postponing
the hearing until after the event.” Boddie v. Connecticut,
401 U.S. 371, 379 (1971); see Zinermon v. Burch, 494 U.S. 113,
127 (1990) (explaining that the Constitution usually “re‐
quires some kind of a hearing before the State deprives a per‐
son of liberty or property”); Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 570 n.7 (1972) (stating that “deprivation of
a protected interest need not be preceded by opportunity for
some kind of hearing” only in “rare and extraordinary situa‐
tions”); Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir.
2013) (“The due process clause of the fourteenth amendment
does require a state to afford an opportunity for a hearing
before depriving someone of a property right created by
state law.”); Somerset House, Inc. v. Turnock, 900 F.2d 1012,
1015 (7th Cir. 1990) (“Generally, a pre‐deprivation hearing is
required, but the formality and procedural requisites for a
hearing can vary, depending on the importance of the inter‐
ests involved and the nature of the subsequent proceed‐
ings.”).
Rebirth was clearly entitled to a pre‐deprivation oppor‐
tunity to challenge the proposed loss of its registration. We
agree with the district judge’s assessment—unchallenged by
No. 15‐2220 13
the appellees—“that the interest at stake here, to wit,
[Rebirth’s] interest in the continued operation of its child
care business, is an important one.” Rebirth, 96 F. Supp. 3d
at 847. Moreover, the appellees have not identified any gov‐
ernmental interest that might have arguably justified their
failure to provide Rebirth with an opportunity to be heard
before depriving it of this significant property interest. The
fact that the Bureau did not revoke the registration until two
weeks after it gave Rebirth notice of the revocation further
undermines any potential argument that the Bureau was
responding to some perceived emergency necessitating that
it quickly rescind Rebirth’s registration without first giving it
a chance to challenge the Bureau’s allegations. We therefore
conclude that, by revoking Rebirth’s registration without
first providing the organization with an opportunity to be
heard, the appellees violated clearly established law and are
not entitled to qualified immunity.
The appellees argue that the proper inquiry is not wheth‐
er Rebirth had a clearly established right to be heard before
its registration was revoked but whether it had a clearly es‐
tablished right to an administrative appeal of the type avail‐
able to license holders. We reject this argument. Contrary to
the appellees’ assertions, this is not a case about “what
amount of process is due.” Rather, this is a case in which due
process clearly required some pre‐deprivation opportunity to
be heard and the appellees provided no opportunity for a
hearing, though nothing prevented them from doing so.
The appellees offer several further arguments, but none
is persuasive. First, they argue that they gave Rebirth “some
form of process”—namely, notice of the termination. But no‐
tice is just one component of due process; it is not a substi‐
14 No. 15‐2220
tute for an opportunity to be heard. Second, the appellees
contend, as they did in the district court, that Rebirth “had
an opportunity to correct the deficiencies by submitting its
plan of improvement.” As the district judge explained, how‐
ever, the Plan of Improvement gave Rebirth an opportunity
only to correct alleged violations, not to challenge them at a
hearing. Third, the appellees continue to insist that Rebirth
“had an opportunity for judicial review.” But even assuming
this to be the case, post‐deprivation judicial review is not
equivalent to a pre‐deprivation hearing, and the allegations
in the complaint identify no possible justification for the ap‐
pellees’ postponing Rebirth’s hearing until after it lost its
ability to operate.
Finally, the appellees offer a fallback position. They argue
that we can affirm the district court’s dismissal of the indi‐
vidual‐capacity claims on the alternative ground that
Rebirth’s complaint contains no plausible allegations that
Brizzi and Gargano are “personally responsible for the due
process violation.” (Recall that the district judge dismissed
the individual‐capacity claims on the pleadings.) Specifically,
they contend that Rebirth advances only “an incorrect legal
conclusion”—not a factual allegation—when it states in its
complaint that Brizzi and Gargano are personally
responsible for the due‐process violation because they had
the “authority to create an administrative appeal process.”
The appellees note that the Indiana statute does not provide
for an administrative appeal and thus, they maintain,
“[r]esponsibility for not giving Rebirth an administrative
appeal … lays with the Indiana General Assembly,” which is
immune from suit.
No. 15‐2220 15
Like the appellees’ other arguments, this one lacks merit.
As an initial matter, although the appellees are correct that
no statutory provision requires an administrative appeal be‐
fore the revocation of a registration, this does not mean that
Brizzi and Gargano are excused from providing Rebirth with
due process. True, the statutory scheme did not require that
registered child care ministries receive an administrative ap‐
peal of the type afforded to license‐holders, but neither did it
prohibit the appellees from providing registered child care
ministries with some type of pre‐deprivation hearing. The
issue then is whether Rebirth adequately alleged that the
appellees personally decided to withhold from Rebirth the
pre‐deprivation hearing that they could have provided.
We conclude that Rebirth’s complaint plausibly alleges
that Brizzi and Gargano were personally involved in depriv‐
ing Rebirth of an opportunity for a pre‐deprivation hearing,
and thus the complaint satisfies the requirements of notice
pleading. See Bank of Am., N.A. v. Knight, 725 F.3d 815, 818
(7th Cir. 2013) (explaining that [t]he Rules of Civil Procedure
set up a system of notice pleading,” under which a “defend‐
ant is entitled to know what he or she did that is asserted to
be wrongful”); Alexander v. United States, 721 F.3d 418, 422
(7th Cir. 2013) (“[A] complaint must contain facts that are
sufficient, when accepted as true, to ‘state a claim to relief
that is plausible on its face.’ … “[T]he plausibility require‐
ment demands only that a plaintiff provide sufficient detail
‘to present a story that holds together.’” (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010)). The letters that the
Bureau sent to Rebirth are attached to the complaint and
demonstrate that, as the head of the Bureau of Child Care,
Brizzi personally notified Rebirth that the Bureau would
16 No. 15‐2220
terminate its registration and, when Rebirth requested a
hearing, told the organization that her Bureau would pro‐
vide none. These letters, coupled with the allegations in the
complaint, plausibly allege that Brizzi was personally in‐
volved in the constitutional violation. See Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013) (“[W]hen a plaintiff
attaches to the complaint a document that qualifies as a writ‐
ten instrument, and her complaint references and relies up‐
on that document in asserting her claim, the contents of that
document become part of the complaint and may be consid‐
ered as such when the court decides a motion attacking the
sufficiency of the complaint.”).
Although the allegations against Gargano are less specif‐
ic, the complaint permits an inference that he was also per‐
sonally responsible for the denial of due process. As
Secretary of the Family and Social Services Administration,
Gargano was empowered to “[e]stablish and implement the
policies and procedures necessary to implement” the stat‐
utes governing child care ministries. IND. CODE § 12‐8‐1.5‐7.
He had the statutory authority to perform any functions
permitted by the human‐services provisions of the Indiana
statutes, see id. § 12‐8‐1.5‐7(9), (10), and the appellees have
identified no law prohibiting him from providing registered
child care ministries the opportunity—however informal—
for a pre‐deprivation hearing. The complaint permits the
plausible inference that Gargano knew that registered organ‐
izations like Rebirth lacked pre‐deprivation hearings, yet he
did nothing within his power to provide such organizations
with an opportunity to be heard. These allegations are thus
sufficient to permit fact development on the individual‐
capacity claims.
No. 15‐2220 17
III.
In sum, we do not decide the type of pre‐deprivation
hearing that Rebirth was entitled to or that Rebirth shall now
recover damages. We conclude only that Rebirth’s complaint
alleges that the appellees personally violated clearly estab‐
lished law by depriving Rebirth of a property interest (its
registration) without first providing Rebirth with any oppor‐
tunity to be heard. Rebirth will, of course, need more than
allegations to prevail on these claims; it will need evidence
proving that these defendants were personally involved in
the constitutional violation. Given the procedural posture of
this case, the district court should, if necessary, provide
Rebirth with an opportunity for additional discovery so that
it may obtain such evidence.
Accordingly, the judgment of the district court is
VACATED only to the extent that it dismisses Rebirth’s
individual‐capacity claims against Brizzi and Gargano, and
the case is REMANDED to the district court for further pro‐
ceedings consistent with this opinion.