Rebirth Christian Acad. Daycare, Inc. v. Brizzi, No. 15-2220 (7th Cir. 2016)
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Rebirth 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. After an unannounced inspection, a Bureau of Child Care employee gave Rebirth a “Plan of Improvement,” stating that Rebirth had violated statutes and regulations governing registered child care ministries and directed Rebirth to cure the purported infractions and submit proof within 10 days. Rebirth believed that it had not committed any violations and did not submit any documentation. The Bureau sent Rebirth a notice of termination. Despite Rebirth’s request to appeal administratively, the Bureau terminated Rebirth’s registration and the child care operation closed. Indiana’s statutory scheme does not give providers an administrative opportunity to challenge the decision to revoke a certificate of registration. Rebirth sued under 42 U.S.C. 1983, claiming violation of the due‐process clause. The district court dismissed Rebirth’s individual‐capacity claims, citing qualified immunity. After the parties developed an evidentiary record on the official‐capacity claims, Rebirth prevailed on its claims for injunctive relief. The Seventh Circuit reinstated the individual-capacity claims, concluding that the complaint adequately alleged that the defendants violated clearly established law by depriving Rebirth of a property interest (its registration) without first providing any opportunity to be heard.
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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 Dep t 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); Cont l 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.” Nat l Paint & Coatings Ass n 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.
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