in concluding the statements alleged relate to matters of
Having concluded the alleged statements related to a matter
of public concern, the issue, assuming the plaintiff can
establish the state defendants sought his discharge as a
result of his making the subject statements, becomes whether
the plaintiff's interest, as a citizen, in commenting upon the
state defendants' interpretation of the applicable Illinois
statutes and regulations outweighed, or was outweighed by, the
statedefendants' interest in promoting the efficiency of the
public services performed through private mental health care
providers.*fn1 In the view of this court, the allegations of
the plaintiff's complaint, if proven, support a First
Amendment violation. There is no indication that the working
relationship between the plaintiff and the state defendants
required any particular intimacy or cooperation. Moreover,
there is nothing to suggest that the plaintiff's ability to
perform his duties should have been disrupted or interfered
with by his comments. Finally, the comments allegedly made by
the plaintiff are entitled to substantial protection. Thus, at
this stage in the proceedings, the plaintiff has alleged a
First Amendment violation.
b. Due Process
Plaintiff also alleges his "constructive discharge" violated
the due process requirements of the Fifth and Fourteenth
Amendments. The Fourteenth Amendment provides, in part, that
no "State [shall] deprive any person of life, liberty, or
property, without due process of law."*fn2 In the present
case, plaintiff complains he was deprived of both liberty and
property without due process.
1) Liberty Interest
In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972), the Court recognized that there might be
cases in which a state's actions in refusing to re-hire or in
discharging an employee might impinge upon a liberty interest.
Citing several earlier decisions, the court noted "`[w]here a
person's good name, reputation, honor, or integrity is at stake
because of what the government is doing to him, notice and an
opportunity to be heard are essential.'" Id. at 573, 92 S.Ct.
at 2707 (citations omitted) Moreover, the Court noted that a
liberty interest would be affected if the state "imposed on [an
individual] a stigma or other disability that foreclosed [that
individual's] freedom to take advantage of other employment
opportunities." Id. Finding "there [was] no suggestion that the
[plaintiff's] `good name, reputation, honor, or integrity'
[was] at stake", however, the Court in Roth held the plaintiff
had failed to allege the deprivation of any liberty interest.
The allegations in the present case, however, are quite
different. The plaintiff has
alleged various statements by the state defendants, repeated
and acquiesced in by the conspiring Hope defendants, which
would not only jeopardize his good name, reputation, honor or
integrity, but seriously affect his opportunity to take
advantage of other employment opportunities. Plaintiff
alleges, for example, that he was criticized because of his
"lack of cooperation", "defensiveness", "behavioral attitude",
"misuse of funds" and delays in preventing the physical abuse
of clients. These allegations are far from trivial. See Smith
v. Board of Education of Urbana School District No. 116,
708 F.2d 258, 265-66 (7th Cir. 1983) Thus, in the view of this
court, the plaintiff has adequately alleged the deprivation of
a liberty interest without procedural due process.
2) Property Interest
In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972), the Court recognized that a non-tenured
teacher might have a protected property interest in continued
employment despite the absence of any express contractual
right. The court recognized that "[a] teacher, like the
[plaintiff], who ha[d] held his position for a number of years,
might be able to show from the circumstances of his service —
and from other relevant facts — that he ha[d] a legitimate
claim of entitlement to job tenure." Id. at 602, 92 S.Ct. at
2700. Citing the existence of a published "Faculty Guide", the
Court remanded the case to allow the plaintiff "an opportunity
to prove the legitimacy of his claim of such entitlement in
light of `the policies and practices of the institution.'" Id.
at 603, 92 S.Ct. at 2700. See also Vail v. Board of Education
of Paris Union School District No. 95, 706 F.2d 1435, 1438 (7th
Cir. 1983) aff'd ___ U.S. ___, 104 S.Ct. 2144, 80 L.Ed.2d 377
(1984) (recognizing an implied contract as giving rise to a
property interest). But see Grimes v. Eastern Illinois
University, 710 F.2d 386 (7th Cir. 1983).
In the view of this court, plaintiff has plead sufficient
facts to withstand a motion to dismiss. Plaintiff has alleged
the existence of a "personnel policy" entitling him to
continued employment absent a hearing and a showing of "good
cause" for his termination. Nonetheless, plaintiff alleges he
was "constructively discharged" without notice or a meaningful
opportunity for a hearing. While the existence of such a
policy may be challenged in a motion for summary judgment, the
complaint is sufficient to allege the deprivation of a
property interest without due process.
3. State Remedies
Finally, citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.
1908, 68 L.Ed.2d 420 (1981) for the first time in their reply
memorandum, the state defendants contend the plaintiff's state
tort remedies are adequate and preclude the instant § 1983
action. In Parratt, the Supreme Court held that negligently
depriving a person of his property is not a violation of the
Fourteenth Amendment so long as the victim has recourse to
post-deprivation "due process of law". Id. at 543-44, 101 S.Ct.
While the Supreme Court has not decided the question, the
Seventh Circuit has extended Parratt to deprivations of life
and liberty as well. State Bank of St. Charles v. Camic,
712 F.2d 1140, 1147-48 (7th Cir.) cert. denied ___ U.S. ___, 104
S.Ct. 491, 78 L.Ed.2d 686 (1983) ("life") and Guenther v.
Holmgreen, 738 F.2d 879, 882-83 (7th Cir. 1984) cert. denied
___ U.S. ___, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985)
("liberty"). The Seventh Circuit has refused, however, to
extend Parratt to violations of substantive constitutional
rights. Guenther, 738 F.2d at 883 (Fourth Amendment). See
also Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984).
Moreover, the court has expressed uncertainty about extending
Parratt to intentional deprivations of due process. Camic, 712
F.2d at 1147.
In the present case, the plaintiff has alleged a
substantive violation of his First Amendment right to free
speech in addition to a violation of his due process rights.
Moreover, his complaint alleges an intentional deprivation of
his liberty and property interests. The State defendants'
to dismiss based upon Parratt, therefore, must be denied.
B. Punitive Damages Claims
Count III of plaintiff's Amended Complaint seeks punitive
damages against all of the defendants. Count III simply
incorporates the plaintiff's previous allegations and adds
"the acts complained of hereinbefore were wilful, unlawful,
malicious, and in wanton disregard of the rights and feelings
of plaintiff." Defendants' move to dismiss Count III
contending the conduct alleged is not sufficient to warrant
1. § 1983 Claim
In Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632
(1983), the court held:
"a jury may be permitted to assess punitive
damages in an action under § 1983 when the
defendant's conduct is shown to be motivated by
evil motive or intent, or when it involves reckless
or callous indifference to the federally protected
rights of others."
103 S.Ct. at 1640. See also Bell v. City of Milwaukee,
746 F.2d 1205, 1266 (7th Cir. 1984). In the view of this court, the
allegations contained in the plaintiff's complaint would be
sufficient, if proven, to allow a jury to award punitive
damages. If those allegations cannot be proven, the plaintiff's
claim may be properly subject to summary judgment or a directed
verdict; for the present, however, the allegations are
2. State Tort Claim
Plaintiff also seeks punitive damages based upon the
defendants' alleged malicious interference with his employment
relationship. Both the state defendants' and Hope defendants'
motions to dismiss, however, only attack the availability of
punitive damages in a § 1983 action. Although both the state
and Hope defendants move to dismiss plaintiff's malicious
interference action on separate grounds, neither defendant
specifically addresses the availability of punitive damages if
their motions to dismiss are denied. Consequently, assuming
that the plaintiff can properly establish the elements of
tortious interference with contract and that the interference
was "wilful, unlawful, malicious, and in disregard of the
rights and feelings of the plaintiff", the defendants'
apparently concede his right to seek punitive damages.
C. Pendent State Claims
1. Malicious Interference with Employment
Count III of plaintiff's Amended Complaint alleges a cause
of action for "malicious interference with employment
relationship" against all of the individual defendants. The
School of Hope is not named as a defendant in Count III. Since
the School of Hope was his employer, plaintiff concedes that
it could not have tortiously interfered with his employment