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

No. 01-4199
GENE JENSEN AND KIM STARK, INDIVIDUALLY AND ON
BEHALF OF THEIR INFANT DAUGHTER,KAYLA JENSEN,
                                            Plaintiffs-Appellants,
                                 v.

SHERREE FOLEY, NORA HARMS, HEATHER FORREST,
ANDREW ROBERSON, AND STEPHANIE MECHELHOFF,
IN THEIR INDIVIDUAL CAPACITIES,
                                   Defendants-Appellees.
                      ____________
           Appeal from the United States District Court
        for the Central District of Illinois, Urbana Division.
           No. 01-C-2045 Michael P. McCuskey, Judge.
                          ____________
       ARGUED MAY 23, 2002—DECIDED JULY 8, 2002
                          ____________


  Before FLAUM, Chief Judge, and BAUER and ROVNER,
Circuit Judges.
  FLAUM, Chief Judge. Agents from the Illinois Department
of Children and Family Services (“DCFS”), along with local
law enforcement officers, took infant Kayla Jensen (“Kayla”)
into protective custody without a warrant and without
granting parents Gene Jensen (“Jensen”) and Kim Stark a
pre-deprivation hearing. A state court determined that
probable cause existed to believe that Kayla was at risk of
2                                                No. 01-4199

immediate harm at home with both parents, and held that
temporary custody be placed only in Stark, not in Jensen.
The state court later dismissed the neglect petition against
Jensen and Stark and allowed both parents full custody of
their daughter. Plaintiffs brought a federal action against
DCFS agents and police officers alleging a violation of the
Fourth and Fourteenth Amendments to the United States
Constitution. The district court found the action barred by
the Rooker-Feldman doctrine and dismissed the claim. Al-
though we find that claim preclusion, not Rooker-Feldman,
bars the action, we affirm the decision of the district court.


I. Background
  Kayla was born to Jensen and Stark on December 28,
2000. Approximately six months earlier, Jensen’s former
wife reported to DCFS personnel that Jensen had inflicted
excessive corporal punishment on his developmentally
disabled 13-year-old son by beating him with a belt, causing
severe and extensive bruising. DCFS investigated the re-
port and classified it as “indicated” pursuant to the Abused
and Neglected Child Reporting Act (“ANCA” or the “Act”).
According to the Act, a report is indicated when DCFS
investigates an allegation of child abuse and finds that
credible evidence exists supporting the claim. 325 Ill. Comp.
Stat. 5/3, 5/7.12 (2002).
  At some point during the weeks following Kayla’s birth,
Sherree Foley, a DCFS Child Protection Investigator (“CPI”)
learned that an infant was born to Jensen and reported to
the DCFS “hotline” that the baby was at immediate risk of
harm in light of the indicated abuse report. On January 19,
2001, Heather Forrest, another CPI, along with two police
officers from the village of Rantoul, went to Jensen and
Stark’s home without a court order or warrant and removed
Kayla from her parents’ custody. Jensen and Stark were not
granted a pre-deprivation hearing. After the officers re-
No. 01-4199                                                 3

moved Kayla from her home, a doctor examined her and
found her to be in good health and without physical evi-
dence of abuse. Two business days later, the circuit court of
Illinois held a temporary custody hearing and found that
probable cause existed to believe that Kayla was neglected
as a result of her father’s inability to control his anger
toward his children, and that it was a matter of “immediate
and urgent necessity” to remove her from Jensen’s custody.
According to the state court, the officers acted appropriately
when they removed Kayla from her parents’ custody.
   In February 2001, plaintiffs filed a §1983 complaint in
federal court alleging that the DCFS agents and local of-
ficers violated their Fourth and Fourteenth amendment
rights. They amended that complaint in June 2001. Both
the state and the village defendants filed motions to dismiss
arguing that the court lacked jurisdiction under the Rooker-
Feldman doctrine, that plaintiffs failed to state a claim, and
that they were entitled to qualified immunity. A magistrate
judge concluded that the claim was barred by Rooker-
Feldman. On November 7, 2001, the district court adopted
the magistrate’s finding that the doctrine barred the court
from hearing the case and granted the defendants’ motions
to dismiss.
  On July 16, 2001, the state court dismissed the neglect
petition against Stark and Jensen and granted both parents
full custody of Kayla.


II. Discussion
  So long as a post-deprivation hearing is held within 2
business days of removal, DCFS agents constitutionally
may remove a child from her home and family without a
pre-deprivation hearing if they are acting pursuant to a
court order, if the taking is supported by probable cause to
believe that the child would be subject to the danger of
abuse if not removed, or if exigent circumstances require
4                                                No. 01-4199

them to do so. Brokaw v. Mercer County, 235 F.3d 1000,
1010 (7th Cir. 2000) (internal cites omitted). It is undis-
puted that the defendants were not acting pursuant to a
court order when they removed Kayla from her parents’
custody. Plaintiffs contend that the facts in this case—
namely, the indicated report against Jensen—constitute
neither probable cause nor exigent circumstances. There-
fore, they argue, the taking of Kayla violated their Fourth
and Fourteenth Amendment rights. This question is both
difficult and sensitive. We need not—in fact may not—reach
it today, however, because it is barred by the doctrine of
issue preclusion.
  The district court dismissed the case, holding that the
Rooker-Feldman doctrine, named for Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923) and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983), barred
the plaintiffs’ allegations. That doctrine, however, does not
apply to this case; issue preclusion does. Preclusion and
Rooker-Feldman both “define the respect one court owes to
an earlier judgment. But the two are not coextensive.”
GASH Assoc. v. Village of Rosemont, 995 F.2d 726, 728 (7th
Cir. 1993). The Rooker-Feldman doctrine, generally speak-
ing, bars a plaintiff from bringing a §1983 suit to remedy an
injury inflicted by the state court’s decision. Durgins v. City
of East St. Louis, 272 F.3d 841 (7th Cir. 2001). That
plaintiff must pursue remedies through the state system
until it seeks certiorari from the Supreme Court of the
United States. When the doctrine applies, “there is no fed-
eral jurisdiction and a dismissal is not on the merits.” Id. at
844. Preclusion, on the other hand, applies when a federal
plaintiff complains of an injury that was not caused by the
state court, but which the state court has previously failed
to rectify. Id. A case barred by preclusion is dismissed on
the merits. Because the injury that the plaintiffs here
complain of was caused not by the state court’s temporary
custody order, but by the underlying taking of Kayla by the
No. 01-4199                                                 5

DCFS agents and local officers, this suit implicates the pre-
clusion doctrine, not Rooker-Feldman.
  Although we disagree with the district court on the
grounds for granting the motions to dismiss, we agree that
the state court’s probable cause determination prevents
us from reaching the merits of the case.
  Under the Illinois Juvenile Court Act, a court holding a
temporary custody hearing must make three findings be-
fore ordering removal (or, in the case of a post-removal
hearing held within 48 hours of the taking, before ordering
that protective custody continue): first, that probable cause
exists to believe that the child is neglected; second, that
removal is of immediate and urgent necessity; and third,
that DCFS has made reasonable efforts to prevent removal
of the child, or has a valid reason for not doing so. 705 Ill.
Comp. Stat. 405/2-10(2)(2002); In re Patricia S., 584 N.E.2d
270 (Ill.App.) (1991). At Kayla’s temporary custody hearing,
the state court followed the above format and determined
that upon considering the indicated report that Jensen
imposed excessive physical abuse on his son and the fact
that Stark did not stop him from doing so, probable cause
existed to believe that Kayla was at risk of physical harm
in her home. The court also found that keeping Kayla out of
her father’s custody was a matter of immediate and urgent
necessity, and that no efforts reasonably could have been
made to avoid Kayla’s removal from her home. Because
Kayla was not in her parents’ custody during the time per-
iod between her removal and the post-deprivation hearing,
the court must have based its probable cause finding on
actions that took place prior to that removal. See Donald v.
Polk County, 836 F.2d 376, 384-85 (7th Cir. 1988). There-
fore, “the state court’s determination that probable cause to
hold [Kayla] existed on [the date of the hearing] necessarily
implied that probable cause must also have existed on [the
date of the removal].” Id. at 385. The court returned custody
to Stark after the hearing but granted Jensen only super-
vised visitation.
6                                                 No. 01-4199

  Although the state court determined that Kayla’s tempo-
rary protective custody complied with Illinois law, and the
plaintiffs now complain that the officers who removed Kayla
violated the U.S. Constitution, the issue of probable cause
at the time of the taking is controlling in both cases. The
constitutional claims that plaintiffs brought to federal
district court could succeed only if no probable cause ex-
isted. Brokaw, 235 F.3d at 1010. Because the state court
held otherwise, we are barred by the doctrine of issue pre-
clusion from reconsidering the issue.
  Issue preclusion prevents a party from relitigating an
issue that it has previously litigated and lost. Donald, 836
F.2d at 381. Federal courts must give state court judgments
the same preclusive effect “as would a court in the render-
ing state.” Id. at 382. That is, we look to the preclusion law
of Illinois. In Illinois, issue preclusion applies when, in two
consecutive cases, the same controlling issue or fact mate-
rial to the determination is at stake, and that issue was
adjudicated against a party in the first suit. Nowak v. St.
Rita High School, 757 N.E.2d 471 (Ill. 2001). Threshold
requirements include identity of issue, identity of party
against whom estoppel is asserted, and a final judgment on
the merits. Id.
  Because the issue of probable cause at the time of Kayla’s
removal was controlling and material in the temporary cus-
tody order and was adjudicated against the plaintiffs, we
hold that they are barred from raising the issue again in
this case. Identity of both issue and party is clear. Plaintiffs
make an effort to argue that because the state court’s final
decision in the matter was to grant custody to both parents,
the temporary order was not final or appealable. We do not
agree. The issue of probable cause at the time of Kayla’s
removal was determined conclusively at the custody hearing
on January 23, 2001. Plaintiffs could have sought leave to
appeal the temporary custody order, Ill. S.Ct. R. 306(a)(5),
or moved to modify or vacate the order. 705 Ill. Comp. Stat.
No. 01-4199                                                7

405/2-10(9). They did not do so. Six months later, after
plaintiffs brought and amended their federal complaint, the
Illinois court rendered a decision as to the parents’ custo-
dial rights in favor of both Stark and Jensen. Although the
court found that the neglect petition against plaintiffs was
not proven and returned Kayla to their full custody, prob-
able cause to believe that Kayla was at risk of harm when
the agents removed her was not at issue at that point; it
began and ended with the temporary custody hearing.
Plaintiffs may not now relitigate the issue of probable cause
after the state court has conclusively ruled against them.
Donald, 836 F.2d at 385; Lossman v. Pekarske, 707 F.2d
288, 291 (7th Cir. 1983).
  For the reasons stated herein, we AFFIRM the decision of
the district court.

A true Copy:
      Teste:

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




                    USCA-97-C-006—7-8-02
