United States District Court, Central District of Illinois, Springfield Division
July 29, 1987
FRED FLEURY, M.D., PLAINTIFF,
GARY CLAYTON, ET AL., DEFENDANTS.
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.
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
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. 2701, 2705, 33
L.Ed.2d 548 (1972). Thus, the rights which warrant notice and an
opportunity to be heard before the government may affect them are
A property interest in a benefit arises from one's "legitimate
claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. at
2701, 33 L.Ed.2d at 548. For example, Plaintiff surely possesses
a protectible right in his medical license. But as the Seventh
Circuit has recently explained, a professional's concern in a
"business" alone is insufficient to establish a right of
constitutional dimension so long as the state recognizes his
authority to practice.
Goulding v. Feinglass, 811 F.2d 1099, 1103 (7th Cir.), cert.
denied, ___ U.S. ___, 107 S.Ct. 3215, 96 L.Ed.2d 701 (1987).
On the other hand, Plaintiff certainly has a liberty interest
in his profession aside from the certificate itself. Linhart v.
Glatfelter, 771 F.2d 1004, 1009 (7th Cir. 1985); Bone v. City of
Lafayette, 763 F.2d 295, 298 (7th Cir. 1985). If the state's
actions were so egregious as to de facto exclude him from his
chosen trade, Fleury would indeed be deprived of liberty.
Linhart, 771 F.2d at 1009; Lawson v. Sheriff of Tippecanoe
County, 725 F.2d 1136, 1138-39 (7th Cir. 1984). The infliction of
a stigma to one's reputation, however, "apart from some more
tangible interest such as employment," does not transgress the
Constitution. Goulding, 811 F.2d at 1102. The Supreme Court has
summarized the interests at stake as follows:
It is apparent from our decisions that there exists
a variety of interests which are difficult of
definition but are nevertheless comprehended within
the meaning of either "liberty" or "property" as
meant in the Due Process Clause. These interests
attain this constitutional status by virtue of the
fact that they have been initially recognized and
protected by state law, and we have repeatedly ruled
that the procedural guarantees of the Fourteenth
Amendment apply whenever the State seeks to remove or
significantly alter that protected status.
Paul v. Davis, 424 U.S. 693
, 710-11, 96 S.Ct. 1155, 1165, 47
L.Ed.2d 405 (1976) (emphasis added).
Here, the complaint's allegations taken as true simply fail to
demonstrate the requisite removal or alteration which would
support a constitutional cause of action. Case law does not
sustain the doctor's assertion that Defendants bereaved him of a
property interest through the reprimand.*fn2 Fleury continues to
practice medicine; his license has not been revoked or suspended.
Consequently, the State has not divested Plaintiff of a property
right unless the Court may deem his business itself to fall
within the purview of the Fourteenth Amendment. But as the Court
of Appeals has instructed, this it cannot do. Goulding, 811 F.2d
The physician's conclusion regarding his purported liberty
interest is likewise unavailing. While the Court accepts as true
Plaintiff's statements concerning his damaged reputation and
reduced income, these allegations are insufficient to state a
claim under § 1983. Again, no legal barrier to Fleury's medical
practice exists. Admittedly, the reprimand may well have made the
doctor less attractive to clients, but as the Court stated in
Munson, 754 F.2d at 693:
Liberty is not infringed by a label of incompetence
or a failure to meet a specific level of management
skills, which would only affect one's professional
life and force one down a few notches in the
professional hierarchy. A liberty interest is not
implicated where the charges merely result in reduced
economic returns and diminished prestige, but not
permanent exclusion from or protracted interruption
See also Perry v. FBI, 781 F.2d 1294
, 1302 (7th Cir.), cert.
denied, ___ U.S. ___, 107 S.Ct. 67
, 93 L.Ed.2d 25 (1986) (a
liberty interest is not implicated merely by a reduction in an
individual's attractiveness to potential employers). This Court
then must reach the same result as the Supreme Court in Paul:
"[T]he interest in reputation asserted in this case is neither
`liberty' nor `property' guaranteed against state deprivation
without due process of law." 424 U.S. at 712, 96 S.Ct. at 1166,
47 L.Ed.2d at 405. Accord Goulding, 811 F.2d at 1103.
Of course, for purposes of deciding the motion to dismiss, the
Court recognizes Fleury's entitlement to certain statutory
procedures prior to the reprimand despite the litigants'
disagreement over the legality of the consent order. These,
however, are also not enough to support a § 1983 action without
some underlying legally cognizable interest. The law is well
established that procedural protections do not themselves
determine whether a property or liberty interest exists. Shango
v. Jurich, 681 F.2d 1091 (7th Cir. 1982); Linhart, 584 F. Supp. 1369,
1377 (N.D.Ill. 1984), aff'd 771 F.2d at 1004. "Without an
identifiable fourteenth amendment liberty or property interest, a
federal court has no jurisdiction under 42 U.S.C. § 1983 to
enforce . . . procedural rights that are created by state law."
Hughes v. Whitmer, 714 F.2d 1407, 1417 n. 8 (8th Cir. 1983),
cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680
Indeed, the protection afforded an accused under the Illinois
Medical Practice Act suggests the presence of a substantive
limitation on official action: "The purpose of a procedural
safeguard . . . is the protection of a substantive interest to
which the individual has a legitimate claim of entitlement."
Shango, 681 F.2d at 1101. Thus, the State's use of consent orders
would seem hazardous. But the Illinois Auditor General's opinion
cited in the complaint that such decrees are unlawful is of no
import. A legislative officer's interpretation of state law does
not create a dispute of constitutional dimensions.
In this case, the Court has identified Plaintiff's entitlements
which merit constitutional protection and determined that the
complaint does not allege their encroachment. Fleury remains
licensed in Illinois and continues to practice medicine.
Therefore, neither the property right in his license nor the
liberty interest in his profession is implicated.
Ergo, Defendants' motion to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(6) is ALLOWED.