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July 29, 1987


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 Fourteenth Amendment.

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. 12(b)(6).

Standard of Review

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 constitutional proportions.


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 the reprimand.

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. ...

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