Wilson v. Kalelkar et al
Filing
114
MEMORANDUM Opinion and Order. Plaintiff's Fourth Amendment claims are dismissed with prejudice, as are his Section 1983 conspiracy claims against Defendants Gorchynsky, Sherman and Stewart. Because there are no remaining claims against Defendan ts Gorchynsky and Sherman, those Defendants are dismissed from this lawsuit. Telephone status hearing set for 5/18/2021 at 11:15 a.m. Members of the public and media will be able to call in to listen to this hearing. Instructions and a link to the c onference number are located on Judge Pallmeyer's website. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibi tions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Signed by the Honorable Rebecca R. Pallmeyer on 5/5/2021. Notice mailed by judge's staff (ntf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. ROBERT LANCE WILSON, D.O.
Plaintiff,
v.
ILLINOIS DEPARTMENT OF FINANCIAL
AND PROFESSIONAL REGULATION;
ANDREW GORCHYNSKY; THOMAS
GLASGOW; LEONARD A. SHERMAN;
JAY STEWART; and THE STATE OF ILLINOIS,
Defendants.
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Case No. 14 C 10521
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Wilson, a cardiologist, brought this Section 1983 action against employees
of the Illinois Department of Financial and Professional Regulation ("IDFPR") in connection with
the suspension of his medical license in 1998. This lawsuit, filed in 2014, followed years of
administrative proceedings and related litigation in Illinois state courts. On March 25, 2019, the
court granted in part and denied in part Defendants' motion to dismiss Plaintiff's Fourth Amended
Complaint. See Wilson v. Illinois Dep't of Fin. & Prof'l Regulation, 376 F. Supp. 3d 849 (N.D. Ill.
2019). The court assumes familiarity with the facts of this case as described in that order.
Relevant here, the court requested further briefing on whether a medical license constitutes a
“paper” or “effect” within the meaning of the Fourth Amendment to the U.S. Constitution. Pending
that briefing, the court reserved judgment on Plaintiff's claims that Defendants Dr. Jay Stewart,
Dr. Andrew Gorchynsky, and Thomas Glasgow violated the Fourth Amendment by suspending
his medical license and/or allowing the license to remain suspended. 1
Likewise, the court
At all relevant times, Defendant Stewart was the Director of the IDFPR and
Defendant Gorchynsky was the Chief Medical Coordinator of the IDFPR's Department of
Professional Regulation ("DPR"). See Wilson, 376 F. Supp. 3d at 856, 857, 863. Defendant
Glasgow was the Chief of Medical Prosecutions at the DPR. See id. at 856. Plaintiff originally
asserted the Fourth Amendment claim against Does 1-5 and Does 21-30 as well, but the court
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reserved judgment on Plaintiff's claim that all Defendants conspired to violate his constitutional
rights.
Having reviewed the parties' supplemental briefing (see Defs.' Supp. Mem. [105]; Pl.'s
Supp. Br. [106]), the court now grants Defendants' motion to dismiss Plaintiff's Fourth Amendment
and conspiracy claims against Defendants Stewart, Gorchynsky, and Glasgow. This order does
not affect the procedural due process claims that remain against Defendant Stewart. See Wilson,
376 F. Supp. 3d at 869 (denying Defendants' motion to dismiss Plaintiff's claims that Stewart's
handling of the license revocation proceedings violated his Fourteenth Amendment right to
procedural due process).
DISCUSSION
A.
Fourth Amendment Claims
The Fourth Amendment states, in relevant part, that "[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated." U.S. CONST., AMEND. IV. The Amendment's "basic purpose . . . is to safeguard
the privacy and security of individuals against arbitrary invasions by governmental officials."
Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v. Mun. Court of City
& Cnty. of San Francisco, 387 U.S. 523, 528 (1967)). It "protects two types of expectations, one
involving 'searches,' the other 'seizures'." Soldal v. Cook Cnty., Illinois, 506 U.S. 56, 63 (1992)
(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). "A 'search' occurs when an
expectation of privacy that society is prepared to consider reasonable is infringed." Soldal, 506
U.S. at 63 (quoting Jacobsen, 466 U.S. at 113). "A 'seizure' of property occurs where there is
some meaningful interference with an individual's possessory interests in that property." Soldal,
506 U.S. at 63 (quoting Jacobsen, 466 U.S. at 113); see also, e.g., Hamilton v. City of New Albany,
dismissed those Defendants from this lawsuit because Plaintiff did not timely identify them or
serve them with process. See id. at 873.
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Indiana, 698 F. App'x 821, 824 (7th Cir. 2017) ("[O]wnership is not dispositive under the Fourth
Amendment; a seizure occurs when a government official interferes with a 'possessory interest.'"
(citing Soldal, 506 U.S. at 65-66)).
The Fourth Amendment protects against unreasonable
seizures of property even where privacy and liberty interests are absent. See Soldal, 506 U.S. at
65; Hamilton, 698 F. App'x at 824. But although "the Fourth Amendment's reach extends to
property as such," it "does not protect possessory interests in all kinds of property." Soldal, 506
U.S. at 62 n.7.
Plaintiff alleges that Defendants unreasonably seized his medical license by suspending
it and/or allowing it to remain suspended. (See Fourth Am. Compl. [90] (Counts II through IV).)
In his supplemental briefing, Plaintiff clarifies that his theory is not that Defendants seized the
paper copy of his license, but rather that they seized "the property right reflected by" the paper
license: the "right to continue with the practice of medicine" in Illinois. (Pl.'s Supp. Br. at 2.)
According to Plaintiff, the paper copy of his license is a "paper" or "effect" for Fourth Amendment
purposes, and there is no "principled reason" why the Fourth Amendment's prohibition against
unreasonable seizure of papers or effects would not also include a prohibition against the
unreasonable revocation of the right to practice medicine. (Id.)
Plaintiff has not cited authority for the notion that one can "own" his ability to pursue his
profession. Nor does he offer authority for an argument that the Fourth Amendment protects a
possessory interest in one's ability to pursue his profession. Plaintiff's citation to Oliver v. United
States, 466 U.S. 170 (1984), is uninformative for the reason this court has already explained: it
establishes that an open field is not an "effect", and an open field is not remotely analogous to
one's ability to practice medicine. See Wilson, 376 F. Supp. 3d at 867 (citing Oliver, 466 U.S. at
176). Plaintiff also points to Lilah's, Inc. v. Lacey, No. 15 CV 5017, 2017 WL 1197102 (N.D. Ill.
Mar. 31, 2017), where, in assessing a Fourth Amendment claim based on the seizure of a liquor
license, a court in this district stated that a liquor license "is property for purposes of constitutional
analysis." Id. at *3. Respectfully, the court is not persuaded that Lilah's supports Plaintiff's reading
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of the Fourth Amendment. The quoted language from Lilah's is based on Brunson v. Murray, 843
F.3d 698 (7th Cir. 2016), where the Seventh Circuit stated that "an Illinois liquor license is a
property interest within the meaning of the due process clause." Id. at 713 (emphasis added);
see Lilah's, 2017 WL 1197102, at *3 (quoting same). Because Brunson did not address whether
there is an ownership or possessory interest in a business or professional license for purposes of
the Fourth Amendment, both Brunson and Lilah's are inapposite here. Plaintiff's reliance on Barry
v. Barchi, 443 U.S. 55 (1979) and Bell v. Burson, 402 U.S. 535 (1971) is misplaced for the same
reason: in both cases, the Supreme Court determined that the plaintiffs had protected property
interests in their professional licenses for Fourteenth Amendment due process purposes, not for
Fourth Amendment purposes. See Barry, 443 U.S. at 64; Bell, 402 U.S. at 539.
Plaintiff’s reference to several unreported decisions is also unhelpful. He contends that
Gustard v. Harris, No. 2:17-cv-0012-EFB P, 2017 WL 5900087 (E.D. Cal. Nov. 30, 2017), and
West v. Bailey, No. 11-cv-1760-MMA (POR), 2012 WL 993301 (S.D. Cal. Mar. 23, 2012), show
that the Fourth Amendment protects his ability to practice medicine. In both cases, the courts
acknowledged that if the government revokes a professional license because the licensee refuses
to comply with demands that invade his privacy, the government might be said to have seized the
license within the meaning of the Fourth Amendment. See Gustard, 2017 WL 5900087, at *10;
West, 2012 WL 993301, at *1, *3. Plaintiff here does not allege that Defendants revoked his
medical license under such circumstances, so Gustard and West do not assist him. Plaintiff is
left without any support for the argument that the ability to pursue his profession is something he
can own or possess for Fourth Amendment purposes. Notably, some courts have expressly held
that it is not. See, e.g., Adams v. City of Greensburg, No. CV 17-550, 2018 WL 1318068, at *4 &
n.4 (W.D. Pa. Mar. 14, 2018) ("The Fourth Amendment does not protect continued employment
as a property interest subject to 'seizure.' . . . The Court notes that the Amendment's language
('persons, houses, papers, and effects') does not, on its face, include property interests such as
employment."); Curasco v. Calabrese, No. CV 2:15-3963 (CCC), 2016 WL 5219583, at *4 (D.N.J.
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Sept. 20, 2016) ("To the extent that Plaintiff attempts to characterize her claim as one for
unreasonable 'seizure' of her employment, no Section 1983 cause of action lies." (citing Skrocki
v. Caltabiano, 511 F. Supp. 651, 653 (E.D. Pa. 1981) (highlighting the plaintiff's lack of authority
"for the proposition that a person's alleged property interest in his employment can be 'seized'
within the meaning of the Fourth Amendment"))).
Unable to provide legal support for his Fourth Amendment theory, Plaintiff instead
premises the Fourth Amendment claim on the same allegations that underpin his Fourteenth
Amendment due process claims: that is, he takes issue with the process Defendants employed
to revoke his medical license. (See, e.g., Fourth Am. Compl., Counts II to IV (alleging that
Defendants unreasonably seized his medical license by continuing license revocation
proceedings after his license was summarily suspended, causing or allowing delays in the
proceedings, and making defamatory statements 2 in connection with the proceedings).) The
court has already determined that Plaintiff's procedural due process claims can proceed against
just one Defendant—Jay Stewart. See Wilson, 376 F. Supp. 3d at 867-71. On this record, rather
than resolve whether a medical license and/or the ability to practice medicine is a paper or effect
within the meaning of the Fourth Amendment, the court construes Plaintiff's Fourth Amendment
claim as a Fourteenth Amendment procedural due process claim and dismisses the Fourth
Amendment claim with prejudice. See, e.g., Phillips v. State Bar of Nevada, No. 2:14-CV-2031
JCM (VCF), 2016 WL 829976, at *2 (D. Nev. Mar. 3, 2016) (construing as a Fourteenth
Amendment due process claim the plaintiff's assertion that the State Bar violated the Fourth
Amendment by "depriv[ing] him of a valuable property right—his license to practice law—without
a fair and impartial hearing"); Coaxum v. Washington, No. C10-1815-MAT, 2012 WL 1034231, at
*12 n.10 (W.D. Wash. Mar. 26, 2012) ("[W]hile plaintiff also maintains the seizure of her [in-home
Plaintiff does not elaborate on how allegations concerning defamation could state
a Fourth Amendment claim, so the court disregards those allegations if they purport to describe
conduct independent of the license suspension proceedings.
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daycare] license violated her rights under the Fourth Amendment, this claim is properly
considered in relation to the Fourteenth Amendment."); House v. Campion, No. 08-cv-2917
(RHK/JJK), 2009 WL 1850874, at *1, *9 (D. Minn. June 25, 2009) (adopting magistrate judge's
recommendation to construe the plaintiff's Fourth Amendment claim based on the revocation of
his driver's license as "synonymous" with the plaintiff's Fourteenth Amendment due process claim
based on the same, and to dismiss the Fourth Amendment claim with prejudice), aff'd, 367 F.
App'x 726 (8th Cir. 2010).
In dismissing Plaintiff's Fourth Amendment claim, the court notes that Defendants
concede that "an individual may have a 'protected property interest' in a license for purposes of a
due process claim" even if he lacks an ownership or possessory interest in a license for Fourth
Amendment purposes. (Defs.' Supp. Mem. at 6.) Relatedly, Defendants concede that under
Illinois law, "a license to practice medicine is a 'property right,' within the meaning of the
constitutional guarantees of due process of law," which "means that proceedings to revoke
medical licenses must comply with procedural due process guarantees." Hayashi v. Illinois Dep't
of Fin. & Prof'l Regulation, 25 N.E.3d 570, 579, 388 Ill. Dec. 878, 887, 2014 IL 116023 ¶ 29 (2014);
see Defs.' Supp. Mem. at 6. The court agrees that Plaintiff’s claim is one for denial of due process,
not of a Fourth Amendment violation.
B.
Conspiracy Claims
Because the court has dismissed Plaintiff's Fourth Amendment claims, the only remaining
claims are the procedural due process claims against Defendant Stewart and the claim that all
Defendants conspired to violate Plaintiff's constitutional rights. Plaintiff does not dispute that the
Fourth Amended Complaint lacks plausible allegations that Defendants Gorchynsky and
Sherman conspired with Defendant Stewart to deprive Plaintiff of his procedural due process
rights. (See Defs.' Supp. Mem. at 15; see generally Pl.'s Supp. Br.) Accordingly, and because
there are no substantive constitutional claims against Defendants Gorchynsky and Sherman, the
conspiracy claims against those Defendants are dismissed with prejudice. See, e.g., Smith v.
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Gomez, 550 F.3d 613, 617 (7th Cir. 2008) ("[C]onspiracy is not an independent basis of liability
in § 1983 actions.") (citing Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000) ("The
jury's conclusion that the Cefalus suffered no constitutional injury thus forecloses relief on the
conspiracy claim.")) And because a civil conspiracy requires an agreement between two or more
individuals, see, e.g., Cooney v. Cassidy, 735 F.3d 514, 519 (7th Cir. 2013), Plaintiff's conspiracy
claims against Defendant Stewart are dismissed with prejudice as well.
CONCLUSION
For the foregoing reasons, Plaintiff's Fourth Amendment claims are dismissed with
prejudice, as are his Section 1983 conspiracy claims against Defendants Gorchynsky, Sherman
and Stewart. Because there are no remaining claims against Defendants Gorchynsky and
Sherman, those Defendants are dismissed from this lawsuit.
ENTER:
Dated: May 5, 2021
_____________________________________
REBECCA R. PALLMEYER
United States District Judge
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