                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-4011
TONISHA VIA,
                                                    Plaintiff-Appellee,
                                  v.

SANDRA LAGRAND, a DCP investigator,
in her individual capacity,
                                   Defendant-Appellant.
                      ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 03 C 3278—Matthew F. Kennelly, Judge.
                          ____________
  ARGUED SEPTEMBER 14, 2006—DECIDED NOVEMBER 17, 2006
                          ____________


 Before CUDAHY, MANION, and ROVNER, Circuit Judges.
  MANION, Circuit Judge. Tonisha Via sued four em-
ployees and officials of the Department of Child Protec-
tion (“DCP”) within the Illinois Department of Children and
Family Services (“DCFS”), alleging claims under 42 U.S.C.
§ 1983 and Illinois law. The defendants claimed they were
entitled to qualified immunity on the federal claims and
moved for summary judgment. The district court granted
summary judgment in favor of three of the defendants on
the § 1983 claims, but denied summary judgment to defen-
2                                               No. 04-4011

dant Sandra LaGrand. LaGrand appeals. We dismiss for
lack of jurisdiction.


                             I.
  Tonisha Via worked as a child-care teacher at KinderCare
Learning Centers, Inc., in Elgin, Illinois, where six-month-
old Madison L. was enrolled. During the afternoon of
April 11, 2001, while changing Madison L.’s diaper, Via
noticed Madison L. acting as if she were experiencing
pain in her left leg. Via also claims that Madison L. was
unusually upset earlier that day and the previous day. Via
notified another daycare worker and the facility’s director
that Madison L. seemed to be in pain. After examining
Madison L., the director called her mother who picked
Madison L. up and took her to the hospital. Doctors deter-
mined that Madison L. had a broken leg.
  Sandra LaGrand, a DCP investigator for the Illinois DCFS,
was assigned to the case involving Madison L.’s broken leg.
Following her investigation, LaGrand determined that
credible evidence supported an indicated report against Via
for child abuse or neglect of Madison L. LaGrand’s supervi-
sor, Roi Montalvo, approved the report, and it was officially
entered against Via on May 16, 2001. The DCFS notified
KinderCare of the indicated finding against Via and
KinderCare responded by firing Via. The indicated finding
was also posted on the Child Abuse and Neglect Tracking
System (“CANTS”). The DCFS did not provide Via with a
hearing before entering the indicated finding on CANTS.
  Via appealed the indicated finding to an Administrative
Law Judge (“ALJ”). Via claims that during the appeal
process the ALJ repeatedly advised the DCFS to expunge
the indicated report from its record, but that the Assistant
No. 04-4011                                                  3

Associate Deputy Director for Child Protection in Cook
County, Mary Ellen Eads, refused to expunge the report. Via
further alleged that the Associate Deputy Director for Child
Protection, John Goad, supported Eads’ decision not to
expunge the indicated report during the appeal process. On
January 16, 2003, exactly twenty months after the DCFS
initially indicated Via, the indicated report was expunged,
after the ALJ issued a written recommendation for
expungement.
   After the expungement, Via sued LaGrand, Montalvo,
Eads, and Goad under 42 U.S.C. § 1983, alleging they
violated her constitutional right to due process. Via also
alleged a state law claim for intentional infliction of emo-
tional distress against the four defendants. The district court
granted qualified immunity on the constitutional claims for
defendants Montalvo, Eads, and Goad, but denied
LaGrand’s claim of qualified immunity. The district court
also granted summary judgment in favor of Goad on Via’s
state law intentional infliction of emotional distress claim,
but denied LaGrand, Montalvo, and Eads’ motions for
summary judgment on that state law theory. LaGrand filed
this interlocutory appeal, claiming she is entitled to quali-
fied immunity, which is the only issue before us.


                              II.
  On appeal, LaGrand claims that she is entitled to qualified
immunity on Via’s § 1983 due process claim. Section 1983
provides that:
    [e]very person who, under color of any statute, ordi-
    nance, regulation, custom, or usage, of any State or
    Territory or the District of Columbia, subjects, or causes
    to be subjected, any citizen of the United States or other
4                                                      No. 04-4011

    person within the jurisdiction thereof to the deprivation
    of any rights, privileges, or immunities secured by the
    Constitution and laws, shall be liable to the party
    injured in an action at law, suit in equity, or other
    proper proceeding for redress. . . .
42 U.S.C. § 1983. To state a claim under § 1983, then, Via
must allege she was “(1) deprived of a right secured by the
Constitution or laws of the United States, and (2) the
deprivation was visited upon [her] by a person or persons
acting under color of state law.” Jones v. Wilhelm, 425 F.3d
455, 465 (7th Cir. 2005).
  In her complaint, Via alleged that she had a liberty
interest in her job as a daycare worker. Via further alleged
that LaGrand, while acting on behalf of the DCP, vio-
lated her constitutional right to due process by indicating
her for child neglect or abuse despite knowing that
there was no evidence that she had abused or neglected
Madison L. On appeal, LaGrand does not challenge Via’s
claim of a liberty interest in her chosen profession. Rather,
LaGrand claims that she only indicated Via for child
abuse or neglect after investigating the claim and finding
credible evidence to support the indicated finding. LaGrand
then stresses that the credible evidence standard was not
declared unconstitutional until Doyle v. Camelot Care Ctrs.,
Inc., 305 F.3d 603, 619-20 (7th Cir. 2002), which this court
decided after she indicated Via.1 Accordingly, LaGrand


1
  In Doyle, this court held that the DCFS’s meager “credible
evidence” standard for indicating a daycare employee for
abuse or neglect violated the plaintiffs’ right to due process
because of the plaintiffs’ significant interests in their employment
in the child-care industry, coupled with the extensive delay in
                                                        (continued...)
No. 04-4011                                                      5

claims she is entitled to qualified immunity. See Jones, 425
F.3d at 460 (holding that a defendant is entitled to qualified
immunity if the alleged constitutional right was not clearly
established at the time of the alleged violation).
  In this case, the district court agreed with LaGrand that if
credible evidence supported an indicated finding
against Via, LaGrand would be entitled to qualified immu-
nity “because the unconstitutionality of that standard was
not yet clearly established at the time of the investigation of
Via.” District Court Opinion at 4-5. The district court,
however, also concluded that “signing a report indicating
someone for child abuse or neglect without any supporting
evidence is conduct ‘so egregious that no reasonable person
could have believed that it would not violate clearly
established rights.’ ” District Court Opinion at 8. As the
district court further explained: “In other words, any
reasonable person in LaGrand’s position would have known
in 2001 that indicating Via for abuse or neglect in the
absence of evidence of abuse or neglect was a clear violation
of Via’s right to due process.” District Court Opinion at 8.
  The district court reviewed the record to determine
whether Via presented sufficient evidence that “LaGrand
issued an indicated report of neglect or abuse despite
knowing that there was no evidence to suggest that Via
abused or neglected Madison L.” District Court Opinion at
6. The district court concluded that “[t]he transcript of
LaGrand’s testimony raises a genuine issue of fact as to
whether she indicated Via without any evidence of abuse or
neglect.” District Court Opinion at 6. Specifically, the
district court relied on this exchange between LaGrand and


1
  (...continued)
holding a post-deprivation hearing. Doyle, 305 F.3d at 618-19.
6                                               No. 04-4011

Via’s attorney, at the hearing on Via’s administrative
appeal:
    [Attorney]: Tell me what was this act of negligence or
                neglect that you determined Tonisha [Via]
                did.
    LaGrand:      Based on information that we had got
                  from the doctor, that’s why the case
                  was indicated on Tonisha [Via].
    [Attorney]: I heard your answer, but I don’t understand
                it in relation to my question, so I’ll ask it
                again. What was this act that Tonisha [Via]
                did that was an act of neglect you deter-
                mined?
    LaGrand:      That during the time that she was chang-
                  ing the diaper that the incident occurred.
    [Attorney]: Well what did she do, what was the act of
                neglect?
    LaGrand:      I don’t know.
    [Attorney]: Well you already told us there was no
                direct, right?
    LaGrand:      Correct.
    [Attorney]: So you didn’t find any blatant acts of disre-
                gard of caretaker responsibility done by
                Via, did you?
    LaGrand:      No.
    [Attorney]: Isn’t that how the Department defines
                neglect?
    LaGrand:      Correct.
    ***
No. 04-4011                                                 7

    [Attorney]: So you just concluded that the last one to be
                with the child, she must have been the one
                who did it, is that basically what we are
                talking about here?
    LaGrand:      Yes.
District Court Opinion at 6-7.
   The district court concluded that “[b]ased on this testi-
mony, LaGrand arguably admitted under oath that there
was no evidence to support an indication against Via. . . .
Taking the evidence in the light most favorable to Via,
a reasonable jury could therefore find that LaGrand violated
her constitutional right to due process.” District Court
Opinion at 7-8.
  On appeal, LaGrand argues that “she was entitled to
summary judgment because there was evidence in sup-
port of her recommendation that Via be indicated for
child abuse or neglect.” Appellant Brief at 17. The district
court, however, concluded otherwise, holding that “[t]he
transcript of LaGrand’s testimony raises a genuine issue
of fact as to whether she indicated Via without any evidence
of abuse or neglect.” District Court Opinion at 6. Critically,
and dispositively, this court lacks interlocutory jurisdiction
to review the district court’s conclusion whether genuine
issues of material fact exist. Johnson v. Jones, 515 U.S. 304,
319-20 (1995) (holding that a defendant “may not appeal a
district court’s summary judgment order insofar as that
order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial”). A straightforward
application of Johnson makes clear that this court lacks
interlocutory jurisdiction over this appeal. Yet, because the
briefs and oral argument in this case demonstrate an
apparent misunderstanding of the jurisdictional principles
8                                                 No. 04-4011

governing interlocutory appeals, some additional analysis
is called for.
  Generally, this court lacks jurisdiction under 28 U.S.C.
§ 1291 to review a district court’s denial of summary
judgment. Jones, 425 F.3d at 466. “However, an exception to
this rule comes into play when a movant requests summary
judgment based on qualified immunity.” Id. “Under the
collateral order doctrine the district court’s denial of
[a] motion for summary judgment based on qualified
immunity is an immediately appealable ‘final decision’
within the meaning of 28 U.S.C. § 1291 to the extent that it
turns on legal rather than factual questions.” Wernsing v.
Thompson, 423 F.3d 732, 741 (7th Cir. 2005). However, in
Johnson, the Supreme Court held that a defendant “may
not appeal a district court’s summary judgment order
insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” Johnson,
515 U.S. at 319-20.
  This court recently summarized the Supreme Court’s
Johnson decision, in McKinney v. Duplain, 463 F.3d 679 (7th
Cir. 2006):
    In Johnson, the plaintiff, Houston Jones, sued several
    policemen, claiming the officers used excessive force
    when they arrested him and later beat him at the police
    station. Johnson, 515 U.S. at 307. Five officers arrested
    Jones or were present when he was booked. The arrest-
    ing officers had found Jones lying on the street; the
    officers thought Jones was drunk, but, in reality, he had
    suffered an insulin seizure. Id. When Jones came to, he
    was in a hospital with several broken ribs. Id. Three of
    the officers moved for summary judgment, arguing that
    Jones failed to present sufficient evidence that they had
    either beaten him or been present when others had done
No. 04-4011                                                   9

    so. Id. Jones responded by pointing to his own deposi-
    tion testimony in which he swore that officers (although
    he did not identify which ones) had used excessive force
    when arresting him and later at the police station. Id.
    Jones further pointed to the depositions of the three
    officers, all of whom admitted they were present at the
    arrest and in or near the booking room when Jones was
    there. Id. at 307-08. The district court concluded that this
    evidence was sufficient to create a genuine issue of fact
    whether the three officers stood by and watched the
    beating, and if they had done so, that was sufficient to
    create liability. Id. at 308. The officers appealed, arguing
    that “the denial was wrong because the record con-
    tained not a scintilla of evidence . . . that one or more of
    them had ever struck, punched or kicked the plaintiff,
    or ever observed anyone doing so.” Id. (internal quota-
    tions omitted). This court refused to consider the
    officers’ argument, holding that we lacked appellate
    jurisdiction to determine whether the record contained
    sufficient evidence to raise a “genuine” issue of fact for
    trial. The officers appealed to the Supreme Court. The
    Supreme Court in Johnson affirmed, holding “that a
    defendant, entitled to invoke a qualified immunity
    defense, may not appeal a district court’s summary
    judgment order insofar as that order determines
    whether or not the pretrial record sets forth a ‘genuine’
    issue of fact for trial.”
  Id. at 686. Thus, if the district court finds a genuine issue
of material fact exists, appellate courts lack jurisdiction to
review the record, even if the appellate court perceives an
error in the district court’s reading of the summary judg-
10                                                    No. 04-4011

ment record. Id. at 689-90.2
  McKinney also noted that the Supreme Court clarified the
scope of Johnson in Behrens v. Pelletier, 516 U.S. 299 (1996).
McKinney, 463 F.3d at 686 (citing Behrens, 516 U.S. 299). The
Court in Behrens explained that “Johnson surely does not
mean that every such denial of summary judgment is
nonappealable.” Behrens, 516 U.S. at 313 (emphasis in
original). Rather, the Behrens Court explained:
     Johnson held, simply, that determinations of evidentiary
     sufficiency at summary judgment are not immediately
     appealable merely because they happen to arise in a
     qualified immunity case; if what is at issue in the
     sufficiency determination is nothing more than whether
     the evidence could support a finding that particular
     conduct occurred, the question decided is not truly
      ”separable” from the plaintiff’s claim, and hence there
     is no “final decision.”
Behrens, 516 U.S. at 313 (citing Johnson, 515 U.S. at 313-18).
Behrens also stressed that “Johnson reaffirmed that summary
judgment determinations are appealable when they resolve
a dispute concerning an ‘abstract issu[e] of law’ relating to
qualified immunity, [Johnson, 515 U.S.] at 317—typically, the
issue whether the federal right allegedly infringed was
clearly established . . . .” Behrens, 516 U.S. at 313 (quoting
Johnson, 515 U.S. at 317). The Court in Behrens further
emphasized that “Johnson permits petitioner to claim on
appeal that all of the conduct which the District Court


2
   Conversely, if the defendant argues on appeal that he is
entitled to qualified immunity no matter how the genuine
issue of material fact is resolved, we would have jurisdiction
to consider that purely legal question. See Johnson, 515 U.S. at 317.
No. 04-4011                                                   11

deemed sufficiently supported for purposes of summary
judgment met the (qualified immunity) standard of objec-
tive legal reasonableness.” Behrens, 516 U.S. at 313.
  We applied Johnson and Behrens in McKinney. In McKinney,
the estate of Michael McKinney sued Officer Duplain,
alleging Officer Duplain violated Michael’s constitutional
rights by using excessive force; in responding to a 911
burglary-in-progress call, Officer Duplain had shot and
killed McKinney. McKinney, 463 F.3d at 680. Officer Duplain
argued that he was entitled to summary judgment because
the undisputed facts established that McKinney had
charged him and that therefore he was justified in shooting
McKinney. Id. at 689. The district court rejected Officer
Duplain’s argument, concluding that the testimony pre-
sented by McKinney’s experts created a factual issue as to
whether McKinney had charged Officer Duplain. Id. On
appeal, this court noted that there were several problems
with the expert’s testimony, but held that under Johnson, we
lacked jurisdiction to consider a Daubert challenge. Id. at
690-91. Specifically, we explained that “given the mandate
of Johnson, we lack jurisdiction to conduct such a review of
the record. As Johnson made clear, a defendant ‘may not
appeal a district court’s summary judgment order insofar as
that order determines whether or not the pretrial record sets
forth a “genuine” issue of fact for trial.’ ” Id. at 690 (quoting
Johnson, 515 U.S. at 319-20). We then explained that that was
exactly what Officer Duplain sought to do: “Officer Duplain
maintains that the record does not support the district
court’s conclusion that a genuine issue of fact exists as to
whether McKinney charged Officer Duplain, because the
only evidence that supports the view that McKinney did not
charge comes from the inadmissible opinions of the prof-
fered experts. . . .” Id. Accordingly, in McKinney, we held
that “notwithstanding the numerous problems with the
12                                                   No. 04-4011

proffered experts’ opinions that Officer Duplain identifies,
we must dismiss Officer Duplain’s appeal for lack of
jurisdiction.” Id. at 691.
  In holding in McKinney that we lacked jurisdiction, we
acknowledged that “[i]t is true, . . . that the defense of
qualified immunity is not just a defense to liability, but it
also entitles a defendant not to stand trial . . . [and] . . . that
the issue of qualified immunity should be resolved at the
earliest possible stage in the litigation.” Id. (internal quota-
tion omitted). We stressed, though, that “the Supreme Court
in Johnson, while acknowledging those principles, nonethe-
less concluded that other policy concerns outweighed the
need for an immediate appeal.” Id. See Johnson, 515 U.S. at
317-18 (noting that “the countervailing considerations that
we have mentioned (precedent, fidelity to statute, and
underlying policies) are too strong to permit” an immediate
appeal). We further noted that:
     [a]lthough in some cases, the same factors that the
     Supreme Court in Johnson believed weighed against
     immediate appeal, might instead cut the other way—for
     instance, where the district court’s mistake seems
     obvious—the Court in Johnson stressed that it must “of
     course decide appealability for categories of orders
     rather than individual orders.”
McKinney, 463 F.3d at 691 (quoting Johnson, 515 U.S. at 315).
Accordingly, we explained, “we cannot, in each indivi-
dual case, ‘engage in ad hoc balancing to decide issues
of appealability.’ ” Id. McKinney then concluded that “even
though in this case a holding that we lack jurisdiction may
problematically prolong this case, under Johnson that is
our only option.” Id.
  As the above summary makes clear, under Johnson and its
progeny, this court lacks interlocutory jurisdiction to review
No. 04-4011                                                       13

the record to determine whether the district court erred in
finding that a genuine issue of material fact exists. In this
case, the district court concluded that a genuine issue of fact
existed concerning whether LaGrand indicated Via without
any evidence of abuse or neglect. Even LaGrand acknowl-
edges as much, stating in her brief, “[t]rue, the district court
found that there was a genuine issue of disputed fact.”
Appellant’s Brief at 3. LaGrand, however, does not argue
that she is entitled to qualified immunity notwithstanding
the factual issue found to exist by the district court. Rather,
she argues that the district court misread LaGrand’s testi-
mony and that a genuine issue of fact does not exist. See
Appellant’s Brief at 3 (“The district court’s reading of that
testimony, however, did not create a genuine issue of fact
because it is undisputed that LaGrand did not have any
direct evidence of abuse or any evidence of specific acts of
neglect. Instead, LaGrand relied on circumstantial evidence
to recommend an indicated finding against Via.”). LaGrand
then cites to numerous pieces of evidence which, she claims,
supported the indicated finding, and Via responds by
pointing to contrary evidence. Were this an appeal from a
grant of summary judgment, this court would review the
record de novo to determine if a genuine issue of material
fact existed. Denisi v. Dominick’s Finer Foods, Inc., 99 F.3d 860,
864 (7th Cir. 1996). However, on interlocutory appeal of a
denial of qualified immunity, this court generally3 lacks


3
  Had the district court not set forth the factual basis for its
decision, or merely stated that genuine issues of material fact
existed, without elaborating on exactly what those facts were, this
court would then have had jurisdiction to review the record. See
Johnson, 515 U.S. at 319 (holding that if the district court does not
state what facts it assumed in denying summary judgment “a
                                                        (continued...)
14                                                   No. 04-4011

jurisdiction to review the factual record. Instead, we may
only consider whether the defendant is entitled to qualified
immunity given the factual disputes found by the district
court. Johnson, 515 U.S. at 319-20. As in McKinney, LaGrand
challenges a denial of qualified immunity by arguing that
the district court incorrectly assessed the record in determin-
ing that a genuine issue of material fact existed concerning
whether any evidence supported LaGrand’s indication of
Via for child abuse or neglect. We lack jurisdiction over such
an appeal.


                               III.
  The district court in this case concluded that a genuine
issue of fact exists about whether LaGrand indicated Via for
child abuse or neglect without any evidence of abuse
or neglect. On appeal, LaGrand argues she is entitled to
qualified immunity because the undisputed facts show
that she had some evidence to support the indicated finding.
Under Johnson, this court lacks jurisdiction to determine
whether the summary judgment record sets forth a genuine
issue of fact for trial. Accordingly, we DISMISS for lack of
jurisdiction.




3
   (...continued)
court of appeals may have to undertake a cumbersome review of
the record to determine what facts the district court, in the light
most favorable to the nonmoving party, likely assumed”)
(internal quotations omitted).
No. 04-4011                                             15

A true Copy:
       Teste:

                       _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                USCA-02-C-0072—11-17-06
