The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
In their Second Amended Complaint Plaintiffs allege that on or about March 31, 2009, they were arrested by agents of Defendant Cook County Sheriff's Office and charged with prostitution. On or about April 29, 2009, Plaintiffs appeared in court to answer the charges against them. They were referred to a court diversion program and the charges against them were dismissed on June 4, 2009. At no time did Plaintiffs plead guilty to the charges against them, nor were they placed on probation.
On April 29, 2009, the Cook County Sheriff's Office issued a press release allegedly personally written and signed by the Office's press agent, Defendant Lonny Levin. The release was sent to over fifty news agencies and personnel, including broadcast and cable television stations, newspapers, and websites. The release included Plaintiffs' mug shots, a description of the alleged crime, including the words "on multiple occasions, undercover officers were offered sex in exchange for cash," and the statement "Each pleaded guilty to one count of prostitution and were sentenced to one year of probation."
In their Second Amended Complaint, Plaintiffs allege the following two counts pursuant to 42 U.S.C. § 1983: (1) deprivation of constitutional rights through libel; and (2) an equal violation protection under a "class of one theory." Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants move to dismiss the Second Amended Complaint on the following grounds:
(1) Plaintiffs' libel claim fails because they allege no facts to support a constitutional violation;
(2) Plaintiffs have failed to state an equal protection violation claim because tortious conduct does not amount to discrimination; (3) Plaintiffs have failed to allege facts to support a claim against Defendant Levin in his official capacity; and (4) Defendant Levin is immune from suit. For the following reasons, Defendants' motion is granted.
A Motion to Dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of the complaint, and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir.1998). I must take all facts alleged in Plaintiffs' complaint as true and draw all reasonable inferences from those facts in favor of Plaintiffs. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir.1992). Plaintiffs, for their part, must do more than solely recite the elements for a violation; they must plead with sufficient particularity so that their right to relief is more than a mere conjecture. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs must plead their facts so that, when accepted as true, they show the plausibility of their claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiffs must do more than plead facts that are "consistent with Defendants' liability" because that only shows the possibility, not the plausibility, of their entitlement to relief. Id. (internal quotations omitted).
A. Deprivation of Constitutional Rights Through Libel
Defendants first argue that Plaintiffs have failed to state a claim under § 1983 because they were not denied any of their constitutional rights. Section 1983 provides a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (citation omitted). Because § 1983 itself provides for no substantive rights, "[t]he initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated." Id. Although claims of libel are typically not cognizable under § 1983, libel can form the basis of a § 1983 claim where the act of libel deprived a plaintiff of her constitutional rights. See Pitts v. City of Kankakee, 267 F.3d 592, 596 (7th Cir. 2001). "In order to 'cross the line from mere defamation' to a constitutional violation, a plaintiff must offer facts to show that the defendant's conduct and/or statements were 'so stigmatizing' that they constitute 'infringement of a liberty interest.'" Walls v. Lombard Police Officers, No. 99 C 3016, 2002 WL 548675, at *6 (N. D. Ill. Apr. 4, 2002) (quoting Hedrich v. Bd. of Regents of the Univ. of Wis. Sys., 274 F.3d 1174, 1184 (7th Cir. 2001)).
Plaintiffs allege violations of their Fourth, Fifth, and Sixth Amendment rights as a result of the press release, but fail to elaborate just how these rights were violated. In their response to Defendants' motion to dismiss, Plaintiffs explain that "for all practical purposes" they were deprived of their "rights to proof beyond a reasonable doubt, a fair trial, and the effect of a not guilty or dismissal . . ." But Plaintiffs were never actually tried, and there is no "protectable liberty or property interest in [one's] reputation[.]" Hojnacki v. Klein-Acosta, 285 F.3d 544, 548 (7th Cir. 2002) (citation omitted). Because "[t]here is no constitutional right to be free of defamation," and because Plaintiffs fail to plead ...