Fleury v. Clayton, 87-2545

• Decision Date: 11 May 1988
• Docket Number: No. 87-2545,87-2545
• Citation: 847 F.2d 1229
• Parties: Fred FLEURY, Plaintiff-Appellant, v. Gary CLAYTON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1229

847 F.2d 1229

Fred FLEURY, Plaintiff-Appellant, v. Gary CLAYTON, et al., Defendants-Appellees.

No. 87-2545.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1988.

Decided May 11, 1988.

David L. Requa, Requa & Alexander, Springfield, Ill., for plaintiff-appellant.

Valerie J. Peller, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before POSNER, FLAUM and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Professional discipline takes many forms, from private admonition to public censure to revocation of a license. In Illinois, as in most other states, the legislature has established the circumstances under which agencies may discipline members of the professions. The state's Department of Registration and Education regulates the activities of physicians.

The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license [of a physician] ... upon any of the following grounds: ...

4. Gross or repeated malpractice resulting in serious injury or death of a patient;

5. Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public; ...

25. Professional incompetence as manifested by poor standards of care; ...

Ill.Rev.Stat. ch. 111 p 4433. One of Fred Fleury's patients complained to the Department that Dr. Fleury had mistreated him. After negotiating with an attorney for the state's Medical Disciplinary Board (a part of the Department), Fleury waived his statutory right to notice of charges and a hearing, and he consented to the entry of a censure. The Board agreed in exchange not to take sterner measures. After learning that the censure might place in jeopardy his right to practice in states other than Illinois-which grant reciprocity to physicians in good standing in their home states-Fleury filed this action under 42 U.S.C. Sec. 1983, seeking an order expunging the censure and an award of damages against all those involved in state proceedings.

Before filing an answer, the defendants moved to dismiss the complaint under FED.R.CIV.P. 12(b)(1) for lack of subject--matter jurisdiction. The only jurisdictional contention--other than the obvious argument based on the eleventh amendment, which everyone agrees bars an award of damages against the defendants in their "official" capacities--was:

The cause, while it purports to arise under the Constitution of the United States, is actually an action in contract governed by state law and is not brought within the jurisdiction of a federal court by 42 U.S.C. Sec. 1983.

The district court referred the motion to a magistrate, who must have found this "contract" argument inscrutable (as do we); he treated the motion as what it should have been, one contending that the complaint fails to state a claim on which relief may be granted. The magistrate recommended that the district court deny the motion, save to the extent it concerned official-capacity damages. The district court, however, dismissed the complaint under Rule 12(b)(6), reasoning that a censure does not prevent the physician from practicing medicine and therefore does not deprive him of "liberty" or "property", so that the Due Process Clause of the fourteenth amendment does not apply. 664 F.Supp. 1224.

From one perspective this is an easy case. The state did not exclude Fleury from his chosen profession. He may practice as before, so he did not lose the "liberty" of occupational choice. See, e.g., Perry v. FBI, 781 F.2d 1294, 1302 (7th Cir.1986) (en banc); Goulding v. Feinglass, 811 F.2d 1099, 1103 (7th Cir.1987); Bigby v. City of Chicago, 766 F.2d 1053 (7th Cir.1985). The censure may be defamatory, but the Due Process Clause does not secure persons against libel by the pens of public officials. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Because Illinois did not restrict Fleury's ability to practice, we do not have the stigma-plus-termination that might activate the Due Process Clause on the approach of Owen v. City of Independence, 445 U.S. 622, 633-34 n. 13, 100 S.Ct. 1398, 1406-07 n. 13, 63 L.Ed.2d 673 (1980); see also Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). If Illinois did not furnish Fleury the process its statutes require before imposing professional discipline, this is a matter of state rather than federal law. There is neither a "liberty" nor a "property" interest in procedures themselves, Olim v. Wakinekona, 461 U.S. 238, 248-51, 103 S.Ct. 1741, 1747-49, 75 L.Ed.2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1081 (7th Cir.1987); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir.1982), and a violation of state law is not a violation of the Constitution. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944). And if the censure in Illinois should lead to unpleasant consequences elsewhere, Fleury must protest to the other states. The Due Process Clause applies only to the extent a state "deprive[s]" a person of liberty or property; if Wisconsin should suspend Fleury's privileges on the basis of the censure in Illinois, then Wisconsin rather than Illinois would be "depriv[ing]" Fleury of something. If Wisconsin had taken adverse action against the persons on Kentucky's list of "active shoplifters" in Paul v. Davis, Wisconsin rather than Kentucky would have had to supply any process that is due. See Margoles v. Tormey, 643 F.2d 1292, 1299 (7th Cir.1981).

These conclusions accord with the fact that a censure is speech. The speaker states that in his opinion the subject has made an error of judgment, one that deserves condemnation but no other sanction. We do not ordinarily think of speech as something to be preceded by due process; we say instead that speech may answer speech. There is no profound difference between the assertion on a public flyer that someone is an "active shoplifter" and the statement in a book of official records that a physician is a bad doctor. The target can reply; any residual injury may be trivial; and if the statement is in error, the state courts are open. Illinois offered Fleury the opportunity for judicial review of the censure (or any more serious penalty he might have received had he chosen to contest the allegations against him). Cf. Hudson v. Palmer, 468 U.S. 517, 530-36, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Ingraham v. Wright, 430 U.S. 651, 674-82, 97 S.Ct. 1401, 1414-18, 51 L.Ed.2d 711 (1977). There is no good reason to treat as a constitutional wrong every error in the administration of state discipline, and to the extent the state offers its residents full procedural safeguards backed up by judicial review there is no good reason to treat their omission in a particular instance as a constitutional case.

Nonetheless, this conclusion--logical though it seems to us--is foreclosed by authority. The Supreme Court's current view of the Due Process Clause is that a legitimate claim of entitlement, a right to a particular decision reached by applying rules to facts, is "property". E.g., Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Miller v. Henman, 804 F.2d 421 (7th Cir.1986). The great weight of a loss does not amount to property if there is no legitimate claim of entitlement, Meachum v. Fano, 427 U.S. 215, 225-29, 96 S.Ct. 2532, 2538-41, 49 L.Ed.2d 451 (1976); the slight weight of a loss does not eliminate the property interest if there is a legitimate claim of entitlement. E.g., Hewitt v. Helms; Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 14-15 & n. 15, 98 S.Ct. 1554, 1562-63 & n. 15, 56 L.Ed.2d 30 (1978); Goss v. Lopez, 419 U.S. 565, 575-76, 95 S.Ct. 729, 736-37, 42 L.Ed.2d 725 (1975). A smallish interest means only that the process "due" is correspondingly informal. See Goss and, e.g., Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976). Roth and subsequent cases have divorced the identification of "property" from the "weight" of the interest. There must be "some kind of hearing" under Goss provided there is an entitlement of more than de minimis stature. For any property interest, the Due Process Clause prescribes the procedural minima without regard to the procedures provided by the statute creating that interest. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 539-41, 105 S.Ct. 1487, 1491-93, 84 L.Ed.2d 494 (1985). One could break this chain of reasoning at many steps-many Justices, in many dissenting opinions, have done so-but the job of an inferior federal court is to enforce prevailing doctrine.

Just as the regulations in Hewitt established criteria for putting prisoners in segregation (and therefore created "property"), so Ill.Rev.Stat. ch. 111 p 4433 establishes criteria for professional discipline and therefore creates a "property" interest in a blemish-free license to practice medicine. The regulations issued under p 4433 are more open-ended than the statute itself, for they say that grounds of discipline shall "include, but not be limited to" enumerated items. 68 Ill.Adm.Code Sec. 1290.35. Cases such as Board of Pardons v. Allen, --- U.S. ----, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), show, however, that the inclusion of elastic items in a list of criteria does not destroy a property interest. Most systems of professional regulation, like the law of torts, have plasticity to them, because their drafters despair of cataloging all possible wrongs. A program anticipating evolution in the...