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April 30, 1990

DR. GERALD E. McCABE, Plaintiff,
GEORGE T. CALEEL, et al., Defendants

The opinion of the court was delivered by: SHADUR


 Gerald McCabe ("McCabe") has filed a pro se action under 42 U.S.C. § 1983 ("Section 1983"), complaining of the revocation of his license to practice medicine more than a decade ago by the Illinois Medical Disciplinary Board ("Board"). McCabe has named a host of defendants -- persons who were individual members of Board when the challenged license revocation hearings were held, officials of the Illinois Department of Registration and Education ("Department") *fn1" during the same period, former Governor Dan Walker, two then lawyers for Department and three nonindividual defendants: Board and Department and the State of Illinois itself. All of McCabe's claims (at least to the extent they are arguably assertable under Section 1983) focus on his charge that Board was illegally constituted because it did not comply with this requirement of then-existing Ill.Rev.Stat. ch. 111, para. 4435 (emphasis added):

There is hereby created the Illinois State Medical Disciplinary Board (hereinafter referred to as the "Board"). The Board shall consist of 7 members, to be appointed by the Governor by and with the advice and consent of the Senate. All shall be residents of the State, not more than 4 of whom shall be members of the same political party.

 This Court has issued some earlier orders in an effort to get McCabe's sprawling presentations into some kind of manageable shape, *fn2" and McCabe has sought to do that to some extent. At this point the Illinois Attorney General has filed a motion for dismissal under Fed. R. Civ. P. ("Rule") 12(b)(6) on behalf of all defendants other than former Governor Walker. McCabe has filed a voluminous response, addressing only part of the issues raised by the motion and also speaking to a good many matters that bear on the merits of the license revocation (an issue really not before this Court in those terms). For the reasons stated in this memorandum opinion and order, this Court:

1. grants the dismissal motion of all the moving defendants;
2. sua sponte dismisses former Governor Walker as well; and
3. because the defects identified in this opinion are incurable, dismisses not only McCabe's Complaint but this action itself.

 Defendants advance a number of grounds for rejection of McCabe's claims, including one that at least superficially would seem most likely to kill this lawsuit: the argument that such a stale claim is barred by limitations (see Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir. 1989) (per curiam), confirming the applicability of the two-year statute of limitations [Ill. Rev. Stat. ch. 110, para. 13-202] to all Illinois-based Section 1983 claims). McCabe responds to that argument with a contention that he was the victim of fraudulent concealment by one or more defendants, thus triggering the limitations-tolling provision of Ill. Rev. Stat. ch. 110, para. 13-215 ("Section 13-215").

 Even on that score McCabe cannot succeed, given the discovery rule established by Illinois case law that limits the availability of such statutory tolling where a plaintiff could with due diligence have discovered the asserted fraud in reasonable time to permit a timely filing. *fn3" This area of analysis will be elaborated on later in this opinion when it treats with the only potential claim by McCabe that is not independently vulnerable for other reasons -- indeed, a claim that is not even assertable against any of the present defendants. In the meantime this Court turns to an exposition of why the Complaint must fail as to all the presently named defendants in any event. *fn4"

 In principal part McCabe seeks a massive award of damages -- "actual damages" of $ 5 million plus "special damages" of $ 5 million plus $ 5 million in "damages from each individual member of the Board . . . for their misdeeds because of their illegal actions" plus $ 25 million in "punitive damages and/or exemplorary [sic] damages." But as a matter of law those claims cannot survive against any of the defendants. As for the individual moving defendants, McCabe must succumb to those defendants' assertion of a qualified immunity defense to his lawsuit. For that purpose the standard is whether defendants' conduct violated "clearly established" rights that would have been known to a reasonable state defendant ( Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)) -- and where the gravamen of the action must by definition depend on a violation of federal constitutional rights, the question is not whether there was a "clearly established" violation of state law but rather whether (in terms of this case) the asserted violation of a state statute also implicated a "clearly established" violation of the federal Constitution. As Wood v. Strickland, 420 U.S. 308, 322, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975) (emphasis added) articulated the objective branch of the standard (the one that still survives after Harlow), the public official:

is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [person] affected.

 Two aspects of the qualified immunity concept as it applies in this context are important in the evaluation of McCabe's claims. One is the often-repeated proposition stated (again) by our Court of Appeals in Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. 1989) (citations omitted):

It is by now well-established that in order to demonstrate a property interest worthy of protection under the fourteenth amendment's due process clause, a party may not simply rely upon the ...

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