The opinion of the court was delivered by: Mills, District Judge:
The constitutional guarantee of due process does not afford
protection from every injury an individual might suffer at the
hands of state officials.
Charges of defammatory statements occasioning diminished
professional prestige and economic returns do not implicate the
Dr. Fred Fleury brings this § 1983 action against Gary Clayton,
Director of the Illinois Department of Registration and
Education, Yehuda Lebovits, an attorney representing the agency,
and members of the State Medical Disciplinary Board alleging a
violation of his right to procedural due process. According to
the complaint, Fleury, a doctor licensed to practice medicine in
Illinois, was reprimanded by the defendant regulators for
providing a patient inadequate care, without first receiving an
opportunity to respond to the accusations. He seeks both
injunctive and monetary relief.
Now before the Court is Defendants' motion to dismiss the
complaint pursuant to Fed.R.Civ.P. 12. Relying on the state
actors' initial assertion under subsection (b)(1) that this cause
is an "official capacity" suit barred by the Eleventh Amendment,
the United States Magistrate advises denial of the request. The
Court agrees with the Magistrate's analysis. Nevertheless,
Defendants in their objections to the recommendation offer an
additional reason for dismissal of the allegations — failure to
state a claim upon which relief can be granted. Fed.R.Civ.P.
In determining the sufficiency of a complaint, the Court must
accept its facts as true and view them, along with the reasonable
inferences to be drawn therefrom, in a light most favorable to
the plaintiff. Doe v. St. Joseph's Hosp., 788 F.2d 411, 414 (7th
Cir. 1986). Admittedly, the applicable rules do not necessitate a
detailed outline of the claim's basis. Ellsworth v. City of
Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, ___ U.S.
___, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). Still, "a complaint
must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under
some viable legal theory." Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054,
105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). A pleading pursuant to
42 U.S.C. § 1983 does not properly state a claim if its allegations
are conclusory: "Some particularized facts demonstrating a
constitutional deprivation are needed to sustain a cause of
action under the Civil Rights Act." Cohen v. Illinois Inst. of
Tech., 581 F.2d 658, 663
(7th Cir. 1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59
L.Ed.2d 97 (1979). Accord Watson v. Department of Housing & Urban
Dev., 576 F. Supp. 580, 586 (N.D.Ill. 1983).
Applying the above standard, the Court finds that the
allegations in the complaint fail to present a dispute of
This controversy arose in 1985 when a patient of Fleury
complained to the state authority responsible for regulating
physicians in Illinois about the doctor's course of treatment.
Shortly thereafter, the department's counsel apparently told the
physician that unless he executed a "consent order" waiving his
right under the Illinois Medical Practice Act, Ill.Rev.Stat. ch.
111, ¶¶ 4440-41 (1985), to address the accusations, the
disciplinary board would suspend or revoke the practitioner's
license.*fn1 At no time did the attorney explain to Plaintiff
the procedural protections which the law provided. Allegedly
ignorant of his options, Fleury signed the document and agreed to
On November 22, 1985, the director of the governing agency
endorsed the decree reprimanding the doctor. An authorized
representative of the Medical Disciplinary Board likewise
executed the order. Although, according to the complaint,
Defendants knew the consent order was in violation of the Act,
they then issued a press release notifying the public of the
State's action against Fleury.
As a consequence of this scenario, Plaintiff claims irreparable
stigma to his professional practice resulting in "loss of
patients and income" as well as damage to his "good name,
reputation, honor and integrity." He maintains his inability to
rebut the false charges leading to the reprimand contravened the
Fourteenth Amendment's proscription against deprivation of
property or liberty without due process of law.
To obtain relief under 42 U.S.C. § 1983, Plaintiff must prove
as part of his burden that the Defendants' conduct resulted in a
deprivation of constitutional rights. Ellsworth, 774 F.2d at 184;
Crowder v. Lash, 687 F.2d 996, 1002 (7th Cir. 1982). For purposes
of this lawsuit, the prerequisite to recovery may be restated
more clearly: "[T]he requirements of procedural due process apply
only to deprivations of interests included within the fourteenth
amendment's protection of property and liberty." Munson v.
Friske, 754 F.2d 683, 692 (7th Cir. 1985), citing, Board of
Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. ...