Hinkle v. White et al

Filing 94

ORDER granting 79 Motion for Summary Judgment. For the reasons explained fully in the attached Memorandum & Order, Defendants' Motion for Summary Judgment (Doc. 79 ) is GRANTED. The Clerk is directed to enter final judgment. See attached for details. Signed by Judge Michael J. Reagan on 5/7/2014. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY HINKLE,
Plaintiff,
vs.
RICK WHITE &
THOMAS OLIVERIO,
Defendants.

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Case No. 12–cv–0133–MJR–SCW

MEMORANDUM & ORDER
REAGAN, District Judge:
This § 1983 civil rights suit comes before the Court on Defendants’ Motion for
Summary Judgment.

For the reasons explained below, the motion (Doc. 79) is

granted.
FACTUAL & PROCEDURAL BACKGROUND 1
After 26 years in the Illinois State Police (“ISP”), Plaintiff Jimmy Hinkle
retired in 2004. In 2006, he was elected Sheriff of Wayne County, Illinois. He ran
for re-election, but lost the February 2010 primary and did not pursue running as
an independent.

In June 2010, Plaintiff’s house burned down.

His year went

downhill from there.
In midsummer, Plaintiff’s stepdaughter falsely accused him of sexually
abusing her by rubbing chigger medicine on her clitoris. Defendant Rick White (an

Because the case is before the Court at the summary judgment stage, all evidence is viewed in the
light most favorable to Plaintiff. Cloe v. City of Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013).
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ISP investigator) pursued those allegations, occasionally with direction from (or at
least with the knowledge of) his supervisor, Defendant Thomas Oliverio (then an
ISP lieutenant). White interviewed Plaintiff’s stepdaughters. One, who also had
chiggers treated by her stepfather on the day in question, immediately questioned
the veracity of her sister’s accusations.
Undaunted, White pursued the case. In several interviews, Plaintiff denied
his stepdaughter’s charges. The stepdaughter recanted her account multiple times,
and an Illinois prosecutor declined to press charges against Plaintiff. (Doc. 89-8,
76).

Over the course of the investigation, however, White improperly disclosed

confidential information to people outside his chain of command, and made
statements that Plaintiff molested his stepdaughter. White also told (or at least
strongly hinted to) several people that Plaintiff had burned his own house down.
Via White’s dissemination of false information, the investigation (including the
accusations against Plaintiff and the identity of his accuser) made its way into the
public sphere: witnesses deponed they heard Plaintiff was a child molester through
the “rumor mill” and at least one local newspaper.
Because unfounded allegations against him were publicized, Plaintiff
maintains (and provides some evidence to support the assertion) that—in addition
to the emotional trauma caused by White’s defamation—he is unable to find
supervisory work as a police officer. 2 Pursuant to 42 U.S.C. § 1983, he filed this

Plaintiff also alleges that his son’s restaurant—which leased property owned by Plaintiff—failed
because ISP troopers ceased dining there, and that “the allegations[‘] impact in the general
community also severely hurt the reputation of the restaurant.” (Doc. 32, 6). As discussed below,
Plaintiff does not have a constitutionally-protected liberty interest in his (or his restaurant’s)

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lawsuit in February 2012.

After District Judge G. Patrick Murphy dismissed

Plaintiff’s First Amended Complaint, a Second Amended Complaint was filed. (Doc.
33). The Second Amended Complaint survived a motion to dismiss (see Doc. 43) and
(upon Judge Murphy’s retirement in December 2013) the case was transferred to
the undersigned district judge.
Defendants brought the instant summary judgment motion in February
2014. It ripened in March. The motion raises numerous alternative arguments,
including, inter alia, sufficiency of the evidence re: any stigma attached to Plaintiff,
sufficiency of the evidence re: Defendants’ dissemination of defamatory information,
and qualified immunity. The Court need not reach those alternative arguments,
however, because Defendants’ primary point—that Plaintiff cannot show a
constitutionally-protected liberty interest—is dispositive.

The undersigned will

grant Defendants’ motion for the reasons explained below.
ANALYSIS

1. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment.
Summary judgment should be granted if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012) (citing FED.
R. CIV. P. 56(a)). A genuine issue of material fact remains “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Serednyj v.
reputation alone. There are doubtless some possibilities foreclosed to him because of damage to his
reputation, but that foreclosure implicates state defamation law—not the Constitution.

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Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Summary judgment has been described as the “put up or shut up moment” in
the case, at which “the non-moving party is required to marshal and present the
court with the evidence she contends will prove her case”—evidence on which a
reasonable jury could rely. Porter v. City of Chi., 700 F.3d 944, 956 (7th Cir. 2012)
(citing Goodman v Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010)). In
assessing a summary judgment motion, the district court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the non-moving
party (here, Plaintiff). Anderson, 699 F.3d at 994; Righi v. SMC Corp., 632 F.3d
404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
But the district court may not resolve issues of credibility when deciding a summary
judgment motion: “Those are issues for a jury at trial, not a court on summary
judgment.” Williams v. City of Chi., 733 F.3d 749, 752 (7th Cir. 2013).

2. Due Process Analysis: No Implication of Protected Liberty Interest
The Fourteenth Amendment’s Due Process clause forbids a state to deprive
any person of “life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV § 1. Prevailing on a procedural due process claim 3 requires a plaintiff
to show a state actor has deprived him of a constitutionally protected liberty or
property interest without due process of law. Dupuy v. Samuels, 397 F.3d 493, 503
(7th Cir. 2005). The inquiry is two-fold: (1) is there a protected property or liberty
Plaintiff does not attempt to characterize Defendants’ actions as a substantive due process claim—
the pleadings and the caselaw he brings to bear reflect a theory of relief based only on procedural
due process.
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interest, and if so (2) what process is due. McMahon v. Kindlarski, 512 F.3d 983,
987–88 (7th Cir. 2008).

In the instant case, Plaintiff has alleged that, because

Defendants called his good name into question (via publicized allegations of child
abuse and arson), they deprived him of his occupational liberty interest: “the liberty
to follow a trade, profession, or other calling.” See Draghi v. Cnty. of Cook, 184 F.3d
689, 693 (7th Cir. 1999).

Unfortunately for Plaintiff, the Constitution is not

implicated by mere defamation: even assuming Defendants defamed him, Plaintiff
does not have a liberty interest in remaining free from that defamation absent
formal state action.
In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court rejected the notion
that due process protections are triggered “if a government official defames a
person, without more.”

Paul v. Davis, 424 U.S. 693, 708 (1976).

The Court,

refusing to broaden a rule divined from precedent, held that due process protections
attach only where state action resulted in a distinct alteration (or extinguishing) of
a right or status previously recognized by state law. Id. at 711. In a public flyer,
the plaintiff had been maligned as a shoplifter shortly before all charges against
him were dropped.

Id. at 695–96.

There was no liberty interest: the Court

juxtaposed Constitutionally-protected alteration of a plaintiff’s legal status with the
plaintiff’s mere interest in his reputation—an interest that is “simply one of a
number which the State may protect against injury by virtue of its tort law.” Id. at
712. The Paul v. Davis Court relied on several venerable rulings to explain how due
process protections require both reputational damage and attendant state action.

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In United States v. Lovett, due process protected three employees who had
been forbidden from government service because a House of Representatives
subcommittee found them guilty of subversive activity. Lovett, 328 U.S. 303, 314
(1946). In Joint Anti-Fascist Refugee Committee v. McGrath, six Justices viewed
any stigma imposed by official action of the Attorney General—divorced from its
effect on a person’s legal status (e.g. loss of tax exemption, loss of government
employment)—as an insufficient basis for invoking due process protections. Paul,
424 U.S. at 704–05 (explaining Joint Anti-Fascist Refugee Comm. v McGrath, 341
U.S. 123 (1951)). In Cafeteria Workers v. McElroy, the Court found the revocation
of a government contractor’s ID badge (and subsequent ban from her worksite)
comported with due process, implicitly acknowledging that due process protected
her legal status as badge-holder (and employee).

Paul, 424 U.S. at 705–06

(explaining Cafeteria Workers v. McElroy, 367 U.S. 886 (1961)). And in Wisconsin

v. Constantineau, the government action—“posting” an individual’s name on a list
of people forbidden to buy or receive alcoholic beverages—was a protected liberty: it
“significantly altered [the plaintiff’s] status as a matter of state law, and it was that
alteration of legal status which, combined with the injury resulting from the
defamation, justified the invocation of procedural safeguards.” Paul, 424 U.S. at
707–09. See also Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (“Where a
person’s good name, reputation, honor, or integrity is at stake because of what the

government is doing to him, notice and an opportunity to be heard are
essential.”)(emphasis added).

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The Seventh Circuit has applied Paul’s rule—“defamation alone, even by a
state actor, does not violate the Due Process Clause”—to cases like the one at bar.

Abcarian v. McDonald, 617 F.3d 931, 941 (7th Cir. 2010) (citing Paul, 424 U.S. 693).
“To avoid constitutionalizing state defamation law, defamation by a government
actor does not implicate the Due Process Clause unless a right or status previously
recognized by state law was distinctly altered or extinguished.”

Id. (internal

quotation marks omitted). In other words, to implicate the Due Process Clause,
defamation by a state actor must be accompanied by some formal state action.
In Abcarian, the Seventh Circuit assumed due process protected a university
doctor whose rivals formally reported a malpractice settlement to two government
entities, thus implicating formal licensing sanctions (i.e. sanctions with legal—not
just reputational—effect). Id. at 933–34, 941. In Dupuy, child-care workers were
“effectively … barred” from future employment when they were “indicated”—listed
on a central state register—for abuse and neglect. Dupuy v. Samuels, 397 F.3d 493,
503 (7th Cir. 2005). In dicta from Hojnacki, the Seventh Circuit commented the
inability to find work in the defamed’s chosen profession may be an alteration of
legal status of a non-government employee if the defamation led to termination of
employment. Hojnacki v. Klein-Acosta, 285 F.3d 544, 548 (7th Cir. 2002). Accord

Wroblewski v. City of Washburn, 965 F.2d 452, 456–57 (7th Cir. 1992) (defamatory
statements not “incident to” an adverse employment action, and therefore did not
implicate a liberty interest).

And in Townsend, due process was presumed to

protect a coach who was very publicly fired from his public school job. Townsend v.

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Vallas, 256 F.3d 661, 669–70 (7th Cir. 2001). See also Colaizzi v. Walker, 812 F.2d
304, 307 (7th Cir. 1987) (“If a … government formally banned a person from a whole
category of employment, it would be infringing on liberty of occupation.”).
Here, even assuming Plaintiff suffered from state-law defamation by
Defendants, he did not suffer from formal state action like licensing sanctions
(Abcarian), Congressional findings (Lovett), placement on a central state register
(Dupuy), or termination (Cafeteria Workers, Hojnacki, Wroblewski, Townsend). On
the contrary, Plaintiff was not terminated from his job (the accusations occurred
after he had already lost a primary election), no state agency concluded he was a
child abuser (or arsonist), and a state prosecutor refused to bring charges against
him. The damages he suffered, therefore, were purely reputational. See Paul, 424
U.S. at 712 (“[I]nterest in reputation is simply one … which the State may protect
against injury by virtue of its tort law, providing a forum for vindication of those
interests by means of damages actions.”); Seith v. Chi. Sun-Times, Inc., 861 N.E.2d
1117, 1126 (Ill. 2007) (statement defamatory where it “tends to cause such harm to
the reputation of another that it lowers that person in the eyes of the community or
deters third persons from associating with” him). Plaintiff’s reputation may have
suffered greatly as a result of Defendants’ false statements, but no legal status was
altered, thus no procedural protections were implicated. See McGrath, 341 U.S. at
183–84 (Jackson, J., concurring) (Organizations “are not dissolved, subjected to any
legal prosecution, punished, penalized, or prohibited from carrying on any of their
activities.

Their claim of injury is that they cannot attract audiences, enlist

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members, or obtain contributions as readily as before.

These, however, are

sanctions applied by public disapproval, not by law.”).
This case, then, falls squarely within the rule followed in Paul and McGrath:
without the concomitant alteration of some legal status—an alteration not present
here—the stigma of defamation by a state actor does not trigger due process
protections.

See Dupuy, 397 F.3d at 503 (“[O]nly the alteration of legal status

justifies the invocation of procedural safeguards.”); Siegert v. Gilley, 500 U.S. 226,
234 (1991) (mere defamation does not deprive a person of a Fourteenth Amendment
liberty, even when it causes “serious impairment of [one’s] future employment.”).

Accord Hanneman v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 754–55 (7th Cir. 2012)
(affirming summary judgment because plaintiff did not establish defendants’
statements caused an “alteration in legal status.”). Plaintiff’s Due Process claims
implicate no constitutionally-protected liberty or property interest, so his case fails.
CONCLUSION
Viewed in light most favorable to Plaintiff, Defendants’ statements about
abuse allegations levelled at Plaintiff showed an egregious lack of professionalism,
especially given a prosecutor’s decision not to bring charges against Plaintiff. But
grossly unprofessional, even defamatory statements are not—without more—
actionable under the United States Constitution.

See Paul, 424 U.S. at 712

(“defamatory publications, however seriously they may have harmed [the plaintiff’s]
reputation, did not deprive him of any ‘liberty’ or ‘property’ interests protected by
the Due Process Clause.”). Plaintiff suffered no change in his legal status incident

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to any potential defamation, so Defendants’ Motion for Summary Judgment (Doc.
79) is GRANTED.
The Clerk is DIRECTED to enter judgment in favor of Defendants Rick
White and Thomas Oliverio, and against Plaintiff Jimmy L. Hinkle.
settings are CANCELLED, and all other pending motions are MOOT.
IT IS SO ORDERED.
DATE: May 7, 2014

s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

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