Johnson v. Thompson-Smith et al

Filing 50

MEMORANDUM Opinion and Order: Defendants' motion to dismiss 14 is granted. Plaintiff's motion to file instanter 30 , is granted. Plaintiff's motions to strike and for sanctions, 26 27 , motion to appoint a special master, 29 , motion to set a briefing schedule, 32 , and request for judicial notice, 37 , are denied as moot. This case is closed. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 8/23/2016:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID M. JOHNSON

)
)
)
)
)
)
)
)
)
)
)

PLAINTIFF,
v.
LYNETTE T. THOMPSON-SMITH, RONALD
RASCIA, WILLIAM BLUMTHAL, AND
UNKNOWN DEFENDANTS,
DEFENDANTS.

No. 16 C 1182
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff David Johnson brings this § 1983 action seeking redress for harms
he alleges to have suffered in connection with the dismissal of an arbitration action
he brought before the Illinois Workers Compensation Commission (IWCC). R. 6.
Specifically, Johnson seeks damages from Defendant Lynette Thompson-Smith, the
IWCC arbitrator assigned to his case, who he alleges wrongfully dismissed his
action without a hearing on the merits. Johnson also brings claims against
Defendants Ronald Rascia, Chairman of the IWCC, and William Blumthal, Director
of the IWCC’s Fraud Unit, for their alleged failure to intervene, whether by
negligently hiring or inadequately supervising Thompson-Smith, by failing to
investigate Johnson’s written complaints, or by otherwise conducting the business
of their respective offices in a negligent manner. Simply put, Johnson alleges that
the Defendants failed to ensure his “right to a fair hearing,” and that as a
consequence, he has been unable to collect workers’ compensation, receive necessary

1

medical treatment, or collect fringe benefits owed under the terms of his
employment agreement.
Defendants have moved to dismiss Johnson’s claims arguing (1) that as
quasi-judicial and public officials, they are immune from suit as to the conduct
alleged, and (2) that even in the absence of immunity, Johnson has failed to state
plausible claims against them. R. 14. The Court agrees in both regards. For the
following reasons, Defendants’ motion is granted and Johnson’s complaint is
dismissed with prejudice.
Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw

2

the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
In evaluating a pro se complaint, the Court applies a less stringent standard
than formal pleadings drafted by lawyers. Smith v. Dart, 803 F.3d 304, 309 (7th Cir.
2015). However, the court need not ignore facts set forth in the complaint that
undermine the plaintiff’s claim, nor is the court required to accept the plaintiff’s
legal conclusions. Bullock v. Peters, 1993 WL 315561, at *1 (7th Cir. 1993)
(unpublished disposition); Faulker v. Otto, 2016 WL 1381795, at *2 (N.D. Ill. Apr. 5,
2016) (noting even pro se litigants must comply with the rules (citing McNeil v.
United States, 508 U.S. 106, 113 (1993)).
Facts
Johnson alleges that as of May 2013, he was a full time driver for Melton
Truck Lines (Melton), an Oklahoma company, and a beneficiary of Melton’s
Occupational Injury Benefit Plan. R. 6 ¶¶ 11-12. On or about May 3, 2013, Johnson
injured his left hand while on the job in Alabama. Id. ¶ 13. The injury left Johnson’s
fingers “frozen,” preventing him from lifting heavy items or operating a motor
vehicle. Id. ¶¶ 13-15. He was advised to seek specialized medical treatment for this
condition. Id.
Shortly thereafter, in July 2013, Johnson brought a workers’ compensation
claim against Melton before the IWCC (Case No. 13 WC 21814). See R. 14 at 17

3

(Johnson’s application for benefits under the Illinois Workers’ Compensation Act
(“IWCA”));

see

also

IWCC

case

portal

(“Case

Portal”),

available

at

http://www.iwcc.il.gov/caseinfo.htm (last visited June 20, 2016) (cataloguing
standard docketing information). 1 The IWCC is empowered by the IWCA to
designate an arbitrator to determine any disputed questions of law or fact regarding
liability for accidental injuries arising out of and in the course of employment. See
820 ILCS 305/19(a). Thompson-Smith, as previously noted, was the arbitrator
assigned to Johnson’s claim. See Case Portal.
In early 2015, Melton moved to set the case for trial, or in the alternative, to
dismiss for lack of jurisdiction or failure to prosecute. 2 See R. 14 at 22-23. At least
In deciding a motion to dismiss, the Court is permitted to take judicial notice
of arbitration orders and filings “to establish the fact of such [arbitration].” Green
Tree Fin. Corp. v. Honeywood Dev. Corp., 2001 WL 62603, at *3 n. 4 (N.D. Ill. Jan.
24, 2001); see also Johnson v. Great West Cas. Co., 2015 WL 4751128, at *1 n. 3
(N.D. Ill. Aug. 11. 2015) (citing authority) (considering these very arbitration
documents on a motion to dismiss). Also, documents attached to a motion to dismiss
are considered part of the pleadings if, as here, they are referred to in the plaintiff’s
complaint and are central to his claim. Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244,
1248 (7th Cir. 1994).
1

After this motion was filed with the IWCC, Johnson filed an eight-count
complaint in this district alleging that Melton (through its insurer, Great West
Casualty Company) had advanced “patently false” misrepresentations in its motion
to dismiss the arbitration regarding which state’s workers’ compensation agency
had jurisdiction over the claim and which state’s law governed the rules of decision.
See Johnson v. Great West Cas. Co., No. 14 C 7858 (N.D. Ill.), R. 7 (Tharp, J.).
Finding that Johnson’s complaint “betray[ed] a misunderstanding of an adversarial
system of dispute resolution,” Judge Tharp dismissed the suit without prejudice
finding, among other things, that Johnson’s claims against Melton were within the
exclusive province IWCC. Johnson, 2015 WL 4751128 at *2-4. A motion to dismiss
Johnson’s amended complaint in that matter remains pending.

2

Johnson has brought two other actions in this district against Melton, both of
which are now closed. See Johnson v. Melton Truck Lines, Inc., et al., 14 C 8817
4

one trial date certain was set in the case, but no trial ever took place. 3 See Case
Portal; see also R. 14 at 25. For reasons the Court is unable to ascertain from the
current and public record, Thompson-Smith granted Melton’s motion and dismissed
the case with prejudice on September 22, 2015. 4 See Case Portal; see also R. 14 at
25. Johnson did not appeal the dismissal to the state circuit court as permitted by
Illinois law, 820 ILCS 305/19(f)-(g). 5 Instead, this lawsuit followed. 6

(N.D. Ill.) (Dow, J.) (dismissed for failure to pay filing fee); Johnson v. Melton Truck
Lines, Inc., et al., 16 C 1934 (N.D. Ill.) (Shah, J.) (voluntarily dismissed by Johnson
prior to any appearance by the defendants). Johnson also has an unrelated
employment discrimination lawsuit pending in this district. Johnson v. Lew, et al.,
14 C 2233 (N.D. Ill.) (Lee, J).
While his Illinois claim was pending, Johnson brought another workers’
compensation action against Melton before the Ohio Industrial Commission.
Following a preliminary hearing in the matter, the claim was disallowed on the
basis that the commission lacked jurisdiction to decide it. See R. 14 at 19-20. No
appeal was taken, and Johnson does not dispute that the dismissal, though not on
the merits, was a proper exercise of arbitral authority.

3

From what the Court can glean from Johnson’s amended complaint and the
relevant associated motion papers, the basis of dismissal may have been a finding
by Thompson-Smith that under the terms of Johnson’s employment contract,
Oklahoma has exclusive jurisdiction over Johnson’s workers’ compensation claims.
See, e.g., R. 28 at 8. Alternatively, or perhaps in addition, the dismissal may have
related to Johnson’s lack of representation (his two attorneys both having been
granted leave to withdraw from the matter) and Johnson’s failure to appear for
hearings as ordered. See R. 6 ¶ 23; Case Portal.

4

Direct review of IWCC decisions is limited to an action in state court. See 280
ILCS 305/19; see also Suggs v. C.W. Transport, Inc., 421 F.Supp. 58, 62 (N.D. Ill.
1976) Still, this Court has jurisdiction to consider whether any of the procedures
applied in the arbitration violated any of Johnson’s constitutional rights. Id. at 6163 (dismissing on the merits complaint alleging due process violations in Illinois
workers’ compensation proceedings). That Johnson failed to pursue state remedies
does not strip this court of jurisdiction because exhaustion is not required under
§ 1983. Id. at 62.

5

5

Discussion
I.

Immunity from Suit
Courts have been admonished to resolve immunity issues at the earliest

possible stage of litigation, preferably before allowing discovery. Hunter v. Bryant,
502 U.S. 224, 227 (1991). Indeed, the Seventh Circuit has observed that “no
principle forbids a court to notice that such a defense exists, is bound to be raised,
and is certain to succeed when raised.” Buckley v. Fitzsimmons, 20 F.3d 789, 793
(7th Cir. 1994). Where a defendant’s immunity is absolute, a claim against him
cannot stand. See Faulkner v. Otto, 2016 WL 1381795, at *5 (N.D. Ill. Apr. 5, 2016)
(citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)). Where immunity is qualified,
dismissal is also required if the allegations of the complaint, taken as true, fail to
allege the violation of a clearly established right. McGreal v. AT&T Corp., 892 F.
Supp. 2d 996, 1012 (N.D. Ill. 2012) (citing Landstrom v. Ill. Dep't of Children &
Family Servs., 892 F.2d 670, 675 (7th Cir. 1990)).
1.

Absolute Immunity—Thompson-Smith

Defendant Thompson Smith is shielded from liability by the doctrine of
absolute judicial immunity. See Coleman v. Dunlap, 695 F.3d 650, 652 (7th Cir.
2012) (“Parties who, although not judges, engage in adjudication such as private
On the heels of this lawsuit, Johnson also filed two more federal lawsuits
against Melton and others in the Northern District of Oklahoma. The first, Case No.
16-cv-229 (filed Apr. 26, 2016), alleges antitrust violations and was dismissed on
Johnson’s own motion. The second, 16-cv-283 (filed May 19, 2016), alleges a variety
of constitutional violations and torts stemming from non-payment of welfare plan
benefits and alleged misconduct in the Illinois arbitration proceedings, R. 2.
Johnson was granted leave to proceed in forma pauperis in that matter, R. 4, but
summonses have not yet been served.
6

6

arbitrators . . . enjoy absolute immunity.”) (internal parentheses omitted); see also
Int’l Med. Group, Inc. v. Am. Arbitration Ass’n, 312 F.3d 833, 843 (7th Cir. 2002)
(collecting authority) (referring to the doctrine as applied to arbitrators as “arbitral
immunity”). The doctrine of absolute judicial immunity protects decision makers
from undue influence and from frivolous and vexatious reprisals by dissatisfied
litigants. See id. The doctrine recognizes that “most judicial mistakes or wrongs are
open to correction through ordinary mechanisms of review, which are largely free of
the harmful side-effects inevitably associated with exposing [judicial or quasijudicial decision-makers] to personal liability.” Forrester v. White, 484 U.S. 219, 22627 (1988); see also Int’l Med. Group, Inc., 312 F.3d at 843. On this premise, absolute
immunity extends to all acts taken by arbitrators within the scope of their
adjudicative duties, even those alleged to be malicious, irregular, or erroneous. Id.
at 227; Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir. 1989) (“A judge will not
be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority.”); see also Sacks v. Dietrich, 663 F.3d
1065, 1070 (9th Cir. 2011) (“The pivotal question is ‘whether the claim at issue
arises out of a decisional act.’”).
Johnson concedes that in dismissing his workers’ compensation claim,
Thompson-Smith was “acting in the normal scope of an [a]rbitrator’s duties.” R. 6
¶¶ 7, 22. He complains, specifically, that Thompson-Smith “(a) allow[ed] [Melton] to
allege [a] factual dispute without evidence or a pre-deprivation hearing;
(b) allow[ed] [Johnson’s arbitration] counsel to withdraw without any hearing on

7

the merits; (c) stat[ed] “this matter cannot go to trial with the Petitioner
representing himself”; and (d) grant[ed] [Melton] a dismissal of [Johnson’s] claim
without rendering a final decision on the merits.” Id. ¶ 23. The conduct Johnson
details, decisional rulings on the progress and disposition of his case, are precisely
the type of “paradigmatic judicial acts” courts have held absolutely protected from
civil suit. See Forrester, 484 U.S. at 227; see also Sampson v. Boharic, 1993 WL
484063 (7th Cir. Nov. 23, 1993) (unpublished disposition) (judge immune from
complaint alleging monetary damages stemming from rulings on recusal, discovery,
and evidentiary issues); Faulkner, 2016 WL 1381795 at *5 (judge immune from civil
suit alleging misconduct in the administration of foreclosure proceedings).
There is, however, an exception to absolute judicial immunity, which Johnson
argues applies here: an arbitrator may be subject to civil liability “when [s]he has
acted in the clear absence of jurisdiction.” 7 Stump, 435 U.S. at 356. The term
“jurisdiction” refers to a decision-maker’s “power to decide a case or issue a decree.”
Black’s Law Dictionary (10th ed. 2014). To forfeit the protections of absolute
immunity, a judge or arbitrator must make an adjudicatory decision “know[ing]
that he lacks jurisdiction, or act[ ] despite a clearly valid statute or case law
The Supreme Court has explained that “[judicial] immunity is overcome in
only two sets of circumstances. First, a judge is not immune from liability for
nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a
judge is not immune for actions, though judicial in nature, taken in the complete
absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (internal
citations omitted). Conceding, as noted, that the complained of conduct was taken in
Thompson-Smith’s capacity as an arbitrator, Johnson argues the second exception
only—that Thompson-Smith acted in the complete absence of jurisdiction when she
dismissed his claim without first holding a hearing on the merits. R. 28 at 8.
7

8

expressly depriving him of jurisdiction.” Wagshal v. Foster, 28 F.3d 1249, 1254 (D.C.
Cir. 1994) (internal brackets and quotations omitted) (citing authority); see also
Faulkner, 2016 WL 1381795 at *5 (“‘Jurisdiction’ is construed quite broadly in this
context, and the standard will be met only in unusual cases where, for example, a
judge authorized to hear only probate cases conducts a criminal trial.”); Renner v.
Stanton, 2013 WL 1898389, at *3 (E.D.N.Y. May 7, 2013) (“A judge acts in the clear
absence of all jurisdiction only when the matter upon which he acts is clearly
outside the subject matter of the court over which presides.”).
Johnson has provided nothing here to suggest that as a duly assigned
workers’ compensation arbitrator, Thompson-Smith was not authorized to preside
over his workers’ compensation claim. Rather, Johnson advances a conclusory (and
circular) argument that misunderstands the meaning of the term “jurisdiction.” He
argues:
Defendant Thompson-Smith [ ] has knowingly acted in
absence any jurisdiction to deny Plaintiff of a fair hearing
because of the employer’s so-called “defense” that the
“employment contract indicated that Plaintiff’s claim was
subject to Oklahoma law.” . . . Accordingly, Defendant
Thompson-Smith is a public official who has deprived
Plaintiff of his federal rights and she does not enjoy
immunity from an award of damages for the harm
suffered by Plaintiff.
R. 28 at 9-10 (emphasis in original). Johnson does not contend that ThompsonSmith lacked the authority to decide his case. He argues instead that she made an
incorrect ruling (or series of incorrect rulings), which, in his view, prevented him
from vindicating certain of his “federal” rights. Even if it were true that Thompson-

9

Smith’s rulings in the arbitration were erroneous (an issue the Court need not
consider), it does not follow as Johnson mistakenly reasons that she lacked
authority to make them. It bears reiteration that to the extent Johnson disagreed
with any of Thompson-Smith’s conduct or rulings in his case, he was entitled to seek
review through the state courts. Without excuse or explanation, he opted not to do
so. Arbitral immunity prevents him from now recasting his displeasure with the
dismissal of his case as a federal claim for civil damages.
Since her jurisdiction is not actually in dispute, Thompson-Smith is
absolutely immune for all decisional acts taken in Johnson’s case. She is dismissed
from this case with prejudice. See Faulker, 2016 WL 1381795 at *5.
2.

Qualified Immunity—Rascia and Blumthal

In his Complaint, Johnson alleges that Rascia, acting within the scope of his
authority as Chairman of the IWCC, negligently trained, supervised, and
“entrusted [Thompson-Smith with] the fair hearing of Plaintiff’s [workers’
compensation claim],” R. 6 ¶ 78. Johnson alleges that Rascia should have known by
virtue of his position as well as certain unspecified statistical data and internal
reports that “[Johnson’s] civil rights were being violated by Thompson-Smith.” Id.
¶¶ 24-25. Finally, Johnson alleges that in the two years his claim was pending
before Thompson-Smith, he “made numerous complaints in writing to Defendant
Rascia” about Thompson-Smith’s administration of his case, which Rascia failed to
heed. Id. ¶ 79. As against Blumthal, Johnson alleges that as Director of the
Workers’ Compensation Fraud Unit (“WCFU”), Blumthal failed to fulfill the

10

obligations of his office set forth in Section 25.5 of the IWCA. 8 Specifically, Johnson
alleges that Blumthal failed to detect and prevent fraud by Thompson-Smith in the
administration of his case. 9 Id. ¶¶ 96-99. On these facts, Johnson alleges that
Rascia and Blumthal failed to intervene to stop Thompson-Smith from dismissing
his case in violation of his federal rights. Id. ¶¶ 26, 82, 98.
Rascia and Blumthal are protected from suit by the doctrine of qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 237 (holding that qualified
immunity is “an immunity from suit rather than a mere defense to liability”). The
doctrine of qualified immunity protects government officials from lawsuits for
damages when their conduct did not violate a clearly established statutory or
constitutional right of which a reasonable person would have known. See Woods v.
Indiana Univ.-Purdue Univ. at Indianapolis, 996 F.2d 880, 891 (7th Cir. 1993).
Section 25.5 prohibits fraud by employees, employers, insurers, healthcare
providers and others relating to the presentment of claims for workers’
compensation benefits. 820 ILCS 305/25.5(a)-(b). It also authorizes the
establishment of a “fraud and noncompliance” unit—the WFCU—to implement
systems to predict and detect fraud, to process reports of fraud, to investigate
incidences detected or reported, and to refer violations to the proper authorities for
prosecution. See 820 ILCS 305/25.5(c)-(e-5). It does not require the WFCU to track
data or otherwise investigate duly appointed IWCC arbitrators, nor does it
authorize the WFCU to intervene in arbitration proceedings.
8

Johnson does not allege that he filed a complaint with Blumthal and/or the
WFCU regarding Thompson-Smith or any fraud in the presentment of evidence in
his case. The Court thus construes Johnson’s claim against Blumthal to be based on
a generalized failure to take measures to protect Johnson’s “federal” right to a
hearing on the merits of his petition. The claim against Blumthal fails as a matter
of law. As previously noted, Section 25.5 neither requires nor authorizes the WFCU
or Blumthal to investigate or intervene against Thompson-Smith as Johnson
imagines he should have. Even in the absence of qualified immunity (discussed
above) the count against Blumthal fails to state a cognizable claim for relief.
9

11

Qualified immunity is grounds for dismissal when the allegations of the complaint,
taken as true, fail to allege the violation of a clearly established right. See McGreal,
892 F. Supp. 2d at 1012.
As set forth above, Johnson alleges that by virtue of their failure to intervene,
Rascia and Blumthal “violated his federal right[ ] to [ ] a fair hearing,” and as a
consequence infringed his “liberty interest in his medical needs[,] and impair[ed]
the enforcement of [his] employment contract including fringe benefits.” R. 28 at 1
(emphasis in original). He cites as the source of these rights the substantive and
procedural protections of the Due Process Clause of the Fourteenth Amendment,
the Takings Clause of the Fifth Amendment, and the Contract Clause at Article 1,
Section 10 of the Constitution. Each of these alleged constitutional violations is
addressed below, though the Court considers them in reverse order to avoid
redundancies in its analysis.
1.

Government Impairment of Contract

It is well established that the Contract Clause in Article I, section 10 of the
Constitution prohibits only government impairment of contract by legislation. See
Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451 (1924) (“It has been settled by a long
line of decisions, that the provision of section 10, article 1, of the federal
Constitution, protecting the obligation of contracts against state action, is directed
only against impairment by legislation and not by judgments of courts. The
language—‘No state shall pass any law impairing the obligation of contracts’—
plainly requires such a conclusion.”) (emphasis in original), accord Propst v. Bd. of
Educ. Lands & Funds of Neb., 103 F. Supp. 457, 460 (D. Neb. 1951). Johnson does
12

not claim that any legislation interfered with the benefits he believes he is owed
under his employment contract. Indeed, Johnson claims that legislation (the IWCA)
is among the sources of his rights to workers’ compensation. See R. 14 at 17.
Because

Johnson’s

impairment

claims

are

directed

at

Thompson-Smith’s

adjudicatory acts during arbitration and not at the application of any law, Johnson
has failed to allege a violation of a clearly established constitutional right.
2.

Unconstitutional Taking

A claimant under the Takings Clause must show that the government, by
some specific action, took a private property interest for a public use without just
compensation. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 294
(1981). Johnson’s Takings Clause claim, as best the Court can understand it, is that
in dismissing his workers’ compensation petition, Thompson-Smith “took” his
property interest in the disability benefits he believes he is owed. See R. 28 at 5
(“Plaintiff has an expectation of workers’ compensation under the Illinois Workers’
Compensation Act . . .”).
This claim fails for the fundamental reason that Johnson has not established
an entitlement to benefits under the IWCA. To have a property interest in a public
benefit, a plaintiff must have “more than a presumption that [he] is eligible for full
benefits or a unilateral expectation of such an interest.” Escoe v. Shalala, 842 F.
Supp. 646, 651-52 (N.D.N.Y. 1994), aff’d, 41 F.3d 1500 (2d Cir. 1994). He must,
instead, have a legitimate, vested claim of entitlement. Id. (finding no property
interest in social security benefits where the Social Security Administration rejected

13

plaintiffs application on the basis that he was not actually retired as claimed).
Because Johnson never proved his eligibility for workers’ compensation, he does not
have a protectable property interest in medical or fringe benefits as claimed. See,
e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 60 (1999) (holding that
employees do not have a protectable property interest in workers’ compensation
benefits until they prove every element of entitlement under state law). His Takings
Clause claim thus fails to allege the violation of a clearly established constitutional
right.
3.

Procedural Due Process

The first inquiry in every procedural due process challenge is whether the
plaintiff has been deprived of a protected interest in “liberty” or “property.” See
Sullivan, 526 U.S. at 59. Only after finding the deprivation of a protected interest
do courts look to whether the State’s procedures comport with due process. Id.
Where the deprivation is the result of “random and unauthorized acts,” as opposed
to an “established state procedure,” the deprived person is entitled only to a
meaningful post-deprivation remedy. Id. at 944. Consequently, a plaintiff bringing a
procedural due process claim must allege and prove that he availed himself of postdeprivation remedies or that the available remedies were inadequate. Id. Failure to
do so is fatal to a procedural due process claim. Id. In summary, a procedural due
process claim requires a plaintiff to show three things: “that (1) he had a
constitutionally protected property interest, (2) he suffered a loss of that interest
amounting to a deprivation, and (3) the deprivation occurred without due process of

14

law.” Wicks v. Barron, 2015 WL 1598102, at *3 (N.D. Ill. Apr. 8, 2015) (quoting
LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 943-44 (7th Cir. 2010)).
Johnson fails in all three regards.
First, for the reasons set forth above, Johnson does not have a protected
property interest in workers’ compensation benefits. Second, because Johnson never
had a vested interest in those benefits, the dismissal of his case without an award
cannot amount to a deprivation. See Proctor v. McNeil, 14 F. Supp. 3d 1108, 1115
(N.D. Ill. 2014) (“[I]t is well established that the federal entitlement is to process,
not to a favorable outcome.”) (internal quotation marks and citation omitted).
Failing to meet these necessary preconditions dooms Johnson’s procedural due
process claim. See Wicks, 2015 WL 1598102, at *3.
Even so, Johnson focuses his arguments on the final element of the due
process triad. 10 He correctly notes that “due process requires the opportunity to be

Johnson cites selectively from the Seventh Circuit’s opinion in Reed v.
Illinois, 808 F.3d 1103 (7th Cir. 2015). According to Johnson, Reed stands for the
proposition that he is entitled to “a full and impartial opportunity to litigate” his
disability claim before the IWCC. R. 28 at 11 (quoting Reed, 808 F.3d at 1108).
Reed, which never once mentions the phrase “due process,” does not support
Johnson’s argument. In Reed, the Seventh Circuit considered whether a severely
disabled pro se plaintiff could assert a claim under the Americans with Disabilities
Act (ADA) based on a state court judge’s refusal to allow her reasonable
accommodations at trial. Id. at 1105-06. The issue before the court was whether the
plaintiff was collaterally estopped from asserting a federal claim by the state
appellate court’s decision affirming the defense verdict and disallowing a new trial.
The Seventh Circuit said that the doctrine of collateral estoppel was subject to a
“fairness” exception which applied under the unique facts of the case. Id. at 1109.
The court concluded (and Johnson enthusiastically asserts):
10

For one court (the state court) to deny accommodations
without which a disabled plaintiff has no chance of
15

heard at a meaningful time and in a meaningful manner,” and contends that the
dismissal of his case was in itself a deprivation of his rights. Of course, there is no
generalized right to a hearing on the merits of any claim, particularly if the tribunal
before which the claim is brought lacks jurisdiction to decide it. Nor is there a
guaranty to a hearing on the merits of a defective claim or a claim a petitioner fails
to prosecute. Even if the Court were to indulge Johnson’s argument that he was
entitled to be heard, however, the third prong of the procedural due process analysis
still would not be met. Here, the alleged harm was the result of Thompson-Smith’s
“random and unauthorized” dismissal of his case. Accordingly, a post-deprivation
remedy was all the law required. Because Johnson opted not to pursue his appellate
remedies (and makes no claim now that the available procedures were inadequate
or fundamentally unfair), he cannot show he was deprived due process of law. See
Leavell v. Ill. Dep’t of Natural Res., 600 F.3d 798, 805-06 (7th Cir. 2010) (holding
that where a plaintiff alleged inadequate notice of a pre-deprivation hearing but
failed to avail herself of post-deprivation remedies, she could not allege a procedural
due process claim where the harm was the result of the random and unauthorized

prevailing in her trial, and for another court (the federal
district court) on the basis of that rejection to refuse to
provide a remedy for the discrimination that she
experienced in the first trial, is to deny the plaintiff a full
and fair opportunity to vindicate her claims.
Id. Reed thus held that where the application of the doctrine of collateral estoppel
would perpetuate an underlying injustice, the doctrine does not apply. The Reed
rule is not, as Johnson contends, that every disabled litigant is entitled to full and
fair hearing at the time and place of his choosing. Reed has little bearing on this
case.
16

conduct of state employees); see also Krison v. Nehls, 767 F.2d 344, 349 (7th Cir.
1985) (explaining that due process does not require that the opportunity to be heard
“be afforded at the time and in the manner of one's own choosing”). Johnson has
again failed to allege the violation of a clearly established constitutional right.
4.

Substantive Due Process

“Both the Supreme Court and [the Seventh Circuit] have emphasized how
limited the scope of the substantive due process doctrine is.” Lee v. City of Chi., 330
F.3d 456, 467 (7th Cir. 2003) (internal quotation omitted). “Unless a governmental
practice encroaches on a fundamental right, substantive due process requires only
that the practice be rationally related to a legitimate government interest, or
alternatively phrased, that the practice be neither arbitrary nor irrational.” Id.
Fundamental rights include “things like the right to marry, the right to have
children, the right to marital privacy, the right to contraception, and the right to
bodily integrity.” Sung Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th
Cir. 2012). “[W]hen a substantive due-process challenge involves only the
deprivation of a property interest, a plaintiff must show either the inadequacy of
state law remedies or an independent constitutional violation before the court will
even engage in this deferential rational-basis review.” Lee, 330 F. 3d at 467.
Johnson does not allege the encroachment of a fundamental right. 11 For the
reasons already described, he also does not allege the violation of a protected

Johnson seems to argue that his right to bodily integrity was violated insofar
as he was disabled and denied benefits to cover his medical expenses, leaving him
unable to obtain the medical treatment he needed to recuperate from his injury. R.
11

17

property interest, the inadequacy of state law remedies, or any independent
constitutional violation. This is sufficient to find that his substantive due process
claim fails. Though the Court need not consider the character of Thompson-Smith’s
conduct in dismissing Johnson’s case, it nevertheless finds that her dismissal on
Melton’s motion was not the type of arbitrary or irrational conduct that implicates
Fourteenth Amendment substantive due process concerns.
Because Johnson’s allegations, taken as true, fail to allege the violation of a
clearly established right, Rasia and Blumthal are entitled to qualified immunity.
The claims against them must be dismissed.
II.

Failure to State a Claim
In determining that Rascia and Blumthal are entitled to qualified immunity,

the Court simultaneously determines that Johnson has failed to allege facts
sufficient to support Count I (procedural due process), Count II (substantive due
process), and Count III (unconstitutional taking and government interference with
contract) against Thompson-Smith, see Cnty. of Sacramento, 523 U.S. at 842 n. 5
(instructing that the preliminary inquiry in analyzing the application of qualified
immunity is “whether the plaintiff has alleged a deprivation of a constitutional
28 at 14. Johnson bases this argument on a line of cases involving the “state-created
danger” doctrine. That doctrine permits substantive due process claims “where the
state creates a dangerous situation or renders citizens more vulnerable” to private
acts of violence, provided the state’s failure “shock[s] the conscience.” See Vaughn v.
City of Chi., 2014 WL 3865838, at *2 (N.D. Ill. Aug. 5, 2014) (citing King ex rel. King
v. East St. Louis Sch. Dist. 189, 496 F.3d 812, 817-18 (7th Cir. 2007)). That doctrine
does not apply here because nothing the defendants did caused Johnson’s injury or
rendered him vulnerable to private acts of violence and none of the conduct Johnson
alleges satisfies the “shocks the conscience” element of a state-created danger claim.
See id. at *3.
18

right at all”), as well as Counts IV and V (failure to intervene) against Rascia and
Blumthal, see Leaf v. Shelnutt, 400 F.3d 1070, 1093 (7th Cir. 2005) (explaining that
to state a claim for failure to intervene, the plaintiff must first allege an underlying
constitutional violation).
Conclusion
Defendants’ motion to dismiss, R. 14, is therefore granted. Generally, courts
should grant litigants, especially pro se litigants, leave to amend after dismissal of
the first complaint “unless it is certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted.” Tate v. SCR Med. Transp.,
809 F.3d 343, 346 (7th Cir. 2015) (emphasis in original) (citing authority); Delonte v.
Duncan Solutions, Inc., 606 Fed. Appx. 839, 840 (affirming dismissal of original
complaint where the statute of limitations on the asserted claim had elapsed). The
Court cannot conceive of how any amendment could render the defendants liable
under the circumstances of this case, and therefore the dismissal is with prejudice.
Plaintiff’s motion to file instanter (R. 30) is granted. Plaintiff’s motions to
strike and for sanctions (R. 26, R. 27), motion to appoint a special master (R. 29),
motion to set a briefing schedule (R. 32), and request for judicial notice (R. 37) are
denied as moot.
This case is closed.

19

ENTERED:

Honorable Thomas M. Durkin
United States District Judge

Dated: August 23, 2016

20