United States District Court, Central District of Illinois, Rock Island Division
September 28, 1992
JASON BERNARD, D/B/A ARCHITECTURAL RENDERINGS, PLAINTIFF,
UNITED TOWNSHIP HIGH SCHOOL DISTRICT NO. 30, DEFENDANT.
The opinion of the court was delivered by: Mihm, Chief Judge.
Before the court is the Defendant's Motion to Dismiss. For
the reasons set forth below, this motion is GRANTED.
The Plaintiff, Jason Bernard, filed a two count complaint for
money damages on December 12, 1991. Count I was brought
pursuant to 42 U.S.C. § 1983 alleging that the Defendant,
United Township High School District, violated the Plaintiff's
First and Fourteenth Amendment rights to draw and market prints
of a public building. Count II presents a pendant state law
tort claim for the intentional interference with prospective
business advantage. The Plaintiff prays for damages in the
amount of $25,000.00, attorney fees and prejudgment interest.
The facts taken from Bernard's complaint are as follows.
Bernard drew a pen and ink rendering of the North Campus of the
United Township High School with the intent to market copies of
the drawing through his business, Architectural Renderings.
Bernard contacted school officials attempting to negotiate an
agreement for the benefit of himself and the School District
and/or the school Booster Club from the marketing of these
prints. The negotiations being unsuccessful, Bernard printed
1500 copies, intending to market them without School District
Bernard alleges that once aware of his intention, school
officials and administrators harassed, threatened lawsuits and
were contemptuous against Bernard to prevent the prints from
being marketed. After Bernard began marketing the prints
through retailers, the Assistant Superintendent of United
Township High School District, James P. Biesiadecki, sent a
letter dated December 12, 1990, informing numerous individuals
and businesses that the School District neither authorized nor
endorsed the prints. Bernard contends that the School
District's actions intimidated retailers with implicit threats
of legal action and retaliation resulting in the removal of the
prints from numerous retail stores.
Count I alleges violations of Bernard's First and Fourteenth
Amendment constitutional rights. Bernard contends his First
Amendment constitutional right of free expression was breached
with regard to artistic renditions of public buildings and the
marketing thereof. Under the Fourteenth Amendment, Bernard
alleges his constitutionally protected liberty or property
interest was breached with regard to his business enterprise or
Bernard professes his business and occupation to be the
drafting and marketing of pen and ink architectural renditions.
Bernard contends that he has an unrestricted right to draw and
market renditions of a public building, and the threats and
harassment by school officials and administrators deprived him
of his constitutional rights. Bernard also contends the conduct
of the School District's agents and employees constituted the
School District's custom and policy, thereby making the School
District the proper party to this action.
On February 13, 1992, the School District filed this Motion
to Dismiss pursuant to Rule 12(b)(6), asserting that
allegations of mere harassment and threats are insufficient to
state a constitutional claim where Bernard's marketing efforts
continued despite the conduct. Moreover, the School District
argues that the act of sending a letter did not imply a threat,
and even if it did, threats are not actionable under § 1983.
Furthermore, the School District contends that Bernard alleges
only that some retailers stopped selling his prints, not that
he was deprived of a right to do business.
As for Count II, the School District contends that Bernard's
state tort claim arises solely from the December 12, 1990,
letter. The School District contends that Bernard failed to
allege sufficient facts to support a claim of intentional
interference with business advantage. The School District
contends the Plaintiff failed to allege that distribution of
the letter by the School District was wrongful or failed to
allege sufficient facts from which to infer its wrongfulness.
On September 18, 1992, the Court heard oral arguments on the
constitutional claims raised in Count I. Following oral
argument, the Court orally granted the School District's Motion
to Dismiss with leave to amend. Bernard chose not to amend his
Complaint. The Court's findings and reasoning are set forth
Motion To Dismiss
In ruling on a Rule 12(b)(6) motion to dismiss, a court must
the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it
appears beyond a doubt that the Plaintiff can
prove no set of facts in support of his claim
which would entitle him to relief. (footnote
omitted) Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 102, 2 L.Ed.2d, 80, 84 (1957)
This Court must accept "all allegations in the complaint as
true." Collins v. County of Kendall, Ill., 807 F.2d 95, 99 (7th
Cir. 1986). See also H.J., Inc. v. Northwestern Bell Telephone
Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d
195 (1989); Hishon v. King and Spalding, 467 U.S. 69, 73, 104
S.Ct. 2229, 2233, 81 L.Ed.2d 59, 65 (1984); and Gomez v.
Illinois State Board of Education, 811 F.2d 1030, 1039 (7th
In order to escape dismissal
a Plaintiff need not set out in detail the facts
upon which a claim is based, but must allege
sufficient facts to outline the cause of action.
Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31,
34 (7th Cir. 1987) quoting Doe v. St. Joseph's
Hosp., 788 F.2d 411, 414 (7th Cir. 1986)
To prevail a defendant "must demonstrate that the plaintiff's
claim, as set forth by the complaint, is without legal
consequence." Gomez, 811 F.2d at 1039.
In determining whether a complaint should be dismissed, "[a]
court should give a reasonably tolerant reading to the
complaints." Stewart v. RCA Corporation, 790 F.2d 624, 632 (7th
Cir. 1986). A complaint, almost barren to facts, may articulate
claims of a specific category upon a liberal reading by the
court. Stewart, 790 F.2d at 632. If so, the Plaintiff is
entitled to try and prove these claims. Stewart, 790 F.2d at
Fourteenth Amendment Due Process
In setting forth a Fourteenth Amendment due process claim,
the plaintiff must establish that he has either a protectible
liberty or property interest encompassed by the Fourteenth
Amendment, and the defendant deprived him of that interest
without the requisite due process. Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706-07, 33
L.Ed.2d 548 (1972); Smith v. Board of Educ. of City of
Chicago, 853 F.2d 517, 520 (7th Cir. 1988).
Under the concept of liberty, the courts have recognized
occupational liberty, the liberty to follow a trade, profession
or other calling. Board of Regents, 408 U.S. at 572, 92 S.Ct.
at 2707; Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136,
1138 (7th Cir. 1984). Pursuant to the Fourteenth Amendment, a
state actor may not deprive an individual from pursuing his
trade or calling without due process. Lawson, 725 F.2d at 1138.
As acknowledged in the magistrate's recommendation, this
concept of trade or calling does not, however, include the
right to a particular job. Wroblewski v. City of Washburn,
965 F.2d 452, 455 (7th Cir. 1992) citing Lawson, 725 F.2d at 1138.
The Supreme Court made this distinction when it stated, "It
stretches the concept too far to suggest that a person is
deprived of `liberty' when he simply is not rehired in one job
but remains as free as before to seek another." Board of
Regents, 408 U.S. at 575, 92 S.Ct. at 2708. Thus, the concept
of liberty includes the pursuit of a calling or occupation, not
a specific job. Wroblewski, at 455.
Bernard in this case drew a rendering of a particular public
building with the intent to market prints of this rendition for
profit through his business, Architectural Renderings. Bernard
contends that he has a constitutionally protected liberty
interest in the making and marketing of these prints. As for
the "making," however, Bernard does not allege that the School
District interfered in any way with the actual drawing of this
building. The only allegations made in this complaint purports
an interference with the profitable marketing of these
particular prints. This Court agrees with the magistrate's
recommended conclusion that, if anything, the School District's
actions only diminished the value of a particular job. Bernard
only alleges interference with respect to a particular print.
Being an artist is an occupation, but the marketing of a
particular print by an artist is not. Bernard did not allege
that he was deprived of his occupation as an artist. While
Bernard has a protectible liberty interest in his occupation,
the interest in which Bernard was allegedly deprived does not
rise to the level of a protectible liberty interest under the
Unlike liberty, a protectible interest in property is created
and defined by sources independent of the Constitution.
Board of Regents, 408 U.S. at 578, 92 S.Ct. at 2709; Campbell
v. Miller, 787 F.2d 217, 222 (7th Cir.), cert. denied,
479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986). Property interests
are secured by "existing rules or understandings" that support
a claim of entitlement to a benefit. Perry v. Sindermann,
408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972)
citing Board of Regents, 408 U.S. at 571-572, 92 S.Ct. at 2709;
Hannon v. Turnage, 892 F.2d 653, 656 (7th Cir.), cert.
denied, Hannon v. Derwinski, ___ U.S. ___, 111 S.Ct.
69, 112 L.Ed.2d 43 (1990). To establish a legitimate claim of
entitlement, more is needed than an individual's abstract need
or desire. Tunca v. Lutheran General Hosp., 844 F.2d 411, 414
(7th Cir. 1988). "The great weight of a loss does not amount to
property if there is no legitimate claim of entitlement."
Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir. 1988) citing
Meachum v. Fano, 427 U.S. 215, 225-29, 96 S.Ct. 2532, 2538-41,
49 L.Ed.2d 451 (1976).
Bernard contends he has a property interest with regards to
his business enterprise and/or occupation. In support of this
contention, Bernard cites to Board of Regents. In addressing
the issue of a protectible interest to engage in a business
enterprise or occupation, however, the Supreme Court in that
case discussed only a liberty interest to engaged in a common
occupation free from governmental damage to individual
reputation. Board of Regents, 408 U.S. at 572-575, 92 S.Ct. at
2706-08. On the issue of what constitutes a protectible
property interests, the Supreme Court stated that these
interests are created by "rules and understandings that stem
from an independent source [other than a constitutional source]
such as state law." Board of Regents, 408 U.S. at 577, 92 S.Ct.
at 2709; See Swartz v. Scruton, 964 F.2d 607, 609 (7th Cir.
1992). To bring this case within the concept of a
constitutionally protectible property interest, Bernard must
establish the existence of a substantive entitlement. See
Campbell v. City of Champaign, 940 F.2d 1111, 1113 (7th Cir.
Bernard cites to Cowan, a Fifth Circuit case, for the
proposition that the opportunity to pursue a livelihood is a
constitutionally protected property interest. Cowan v. Corley,
814 F.2d 223, 227 (5th Cir. 1987). In Cowan, the county sheriff
issued requirements precluding the plaintiff from contracting
to tow vehicles for the county unless he joined the county
wrecker association. Cowan joined the association and was later
summarily expelled. The Cowan court did not actually hold that
Cowan had a property interest based on these facts. That court
simply found that a Rule 12(b)(6) dismissal would be premature
based on these facts.
The Cowan case does not help Bernard. Bernard did not allege
that the School District placed any requirements on marketing
the prints or that the School District restricted him from
entering into contracts. Bernard has only asserted an
unilateral expectation with regards to marketing the prints,
not an entitlement. Unilateral expectations will not create a
protectible interest in property. For this Court to conclude
otherwise would effectively extend a protectible property
interest to the mere opportunity to market prints of a
particular drawing through the retailers of his choice. See
Tunca v. Lutheran General Hosp., 844 F.2d 411, 414 (7th Cir.
1988) (a doctor has no protectible property right to practice
at the hospital of his choice).
Even assuming a constitutionally secured liberty or property
interest existed, Bernard must also plead sufficient facts
demonstrating that the School District actually deprived him of
that interest. In a cause of action brought pursuant to
42 U.S.C. § 1983, a pleading alleging the possibility of remote or
speculative future injury or invasion of rights is insufficient
to state a claim. Reichenberger v. Pritchard, 660 F.2d 280, 285
(7th Cir. 1981). Bernard must allege an actual injury resulting
from the deprivation. Vaden v. Village of Maywood, Ill.,
809 F.2d 361, 366 (7th Cir.), cert. denied, 482 U.S. 908, 107 S.Ct.
2489, 96 L.Ed.2d 381 (1987) citing Reichenberger, 660 F.2d at
Bernard alleges here that retailers removed his prints from
their shelves based on threats and harassment from school
officials. Bernard has filed a complaint, a memorandum in
opposition to this Motion, and an objection to the magistrate's
recommendation without pointing to any specific showing of
actual injury. The pleading has not demonstrated that the
School District foreclosed him from drawing or marketing prints
from other renditions. Bernard in fact continued to market
these particular prints.
Specifically, the pleading alleges only that the School
District sent a letter to local retailers implying threats and
legal retaliation. Bernard did not support these allegations
with sufficient facts to state a claim. In the Seventh Circuit,
a plaintiff cannot state a claim under § 1983 by making bare
legal conclusions without revealing any facts upon which those
conclusions are based. Strauss v. City of Chicago,
760 F.2d 765, 767 (7th Cir. 1985); Martin v. O'Grady, 738 F. Supp. 1191
(N.D.Ill. 1990). A liberal reading of these pleadings only
demonstrates that Bernard could not strike an agreement with
the School District, that Bernard marketed the prints anyway,
that the School District notified local retailers that it
neither endorsed nor profited from the sale of these particular
prints, and that some retailers subsequently removed the prints
from their store shelves. Bernard has not demonstrated that the
School District deprived him of a constitutionally protected
liberty or property interest. Based on the pleadings, these
facts do not support a Fourteenth Amendment due process claim.
First Amendment Freedom Of Expression
The First Amendment includes several distinct rights which
may be grouped under the category "freedom of expression":
freedom of speech; of assembly; of association; of press; etc..
Bernard alleges that his First Amendment "constitutional right
to free expression with regard to artistic renditions of public
buildings and the marketing thereof" has been breached.
Bernard, however, does not allege that the School District
attempted to interfere with his actual drawing of the building.
Bernard stated that he "possessed the unrestricted right to
draw renditions of the . . . public building," but the pleading
does not allege that the School District even discouraged this
activity. The only allegation made by Bernard is directed
toward the attempted marketing of prints made from the drawing
after it was drawn.
It is the purpose of the First Amendment to preserve an
uninhibited market place of ideas in which truth will
ultimately prevail. Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). If a governmental
regulation does not restrict speech, but simply prohibits or
regulates the commercial marketing of items, the restriction
does not embrace non-commercial speech. Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496,
102 S.Ct. 1186, 1192, 71 L.Ed.2d 362, reh'g. denied,
456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982). Bernard did not
assert that his placing the prints into the marketplace was
motivated by a desire to communicate ideas or inform customers
who purchased them. See Hoffman Estates, 455 U.S. at 496 n. 8,
102 S.Ct. 1192 n. 8. To the contrary, Bernard stated that he
negotiated the marketing of the prints solely for profit. This
leaves the Court to conclude that Bernard based his claim on
the protection of commercial speech.
The core notion of commercial speech is that the speech does
no more than propose a commercial transaction. Bolger v. Youngs
Drug Products Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 2880, 77
L.Ed.2d 469 (1983). Applying the law to these facts begs the
question of whether the marketing of prints raises to the level
of speech, commercial or otherwise. The fact that Bernard was
economically motivated in marketing the prints would be
insufficient in itself to turn the prints into commercial
speech. Bolger, 463 U.S. at 67, 103 S.Ct. at 2880 citing
Bigelow v. Virginia, 421 U.S. 809, 818, 95 S.Ct. 2222, 44
L.Ed.2d 600 (1975). Bernard must show that he is conveying at
least some information through the prints. See Aiello v.
Kingston, 947 F.2d 834, 836 (7th Cir. 1991) (holding that
lottery tickets are commerce, not speech).
A liberal reading of the pleadings will not hurdle this
barrier. This Court finds nothing to even suggest the prints
were intended to convey or advertise any message or
information. Bernard has not supported his claim with authority
on this issue, and the Court finds nothing coming close to the
facts of this case to support a
claim based on freedom of expression. The pleading does not
even indicate that the School District's conduct acted as a
regulation on speech. For these reasons, the court finds that
insufficient facts were alleged to outline a First Amendment
cause of action.
For the reasons set forth above, the Defendant's Motion to
Dismiss is GRANTED. The pendant state claim raised in Count II
for the tortious interference with prospective business
advantage is also dismissed without prejudice. United Mine
Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218
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