Cheng et al v. Ford et al

Filing 25

ORDER re 23 RESPONSE to 22 Preliminary Injunction Hearing, DISMISSING CASE without prejudice with leave to refile a cognizable claim in state court. Signed by Judge David R. Herndon on 7/6/15. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
QIANG CHENG and JALE TEZCAN,
Plaintiffs,
v.
SUSAN M. FORD and BOARD OF
TRUSTEES OF SOUTHERN ILLINOIS
UNIVERSITY-CARBONDALE,
Defendants.

Case No. 15-cv-527-DRH-DGW
MEMORANDUM & ORDER

HERNDON, District Judge:
I.

INTRODUCTION

Pending before the court is plaintiff’s motion seeking preliminary injunctive
relief (Doc. 1-2). On June 17, 2015, the Court held an evidentiary hearing on the
matter, at which time defendants raised a question of jurisdiction over the case in
its entirety. This comes after defendants, themselves, removed the case to this
Court on May 8, 2015 (Doc. 1). Following the hearing, defendants filed a
memorandum in opposition to plaintiff’s motion for preliminary injunction,
asserting that plaintiffs fail to allege a constitutionally protected property or
liberty interest (Doc. 24). Thereafter, plaintiff filed a response (Doc. 25).
Therefore, the issue before the Court is whether subject matter jurisdiction exists
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over this case, thus allowing for a ruling on plaintiff’s motion for injunctive relief.
Based on the following, the Court must DISMISS this case without prejudice with
leave to re-file a cognizable claim in state court.
II.

BACKGROUND

On May 6, 2015, plaintiffs Drs. Qiang Cheng and Jale Tezcan

filed a

complaint against defendants Susan Ford and the Board of Trustees of Southern
Illinois University-Carbondale, alleging a 42 U.S.C. § 1983 claim for deprivation
of property and liberty without due process. Defendants removed the instant
action, arising from the alleged violation of Southern Illinois University–
Carbondale’s (herein after “the University”) Academic and Research Integrity and
Misconduct

Policy

(herein

after

“the

Policy”),

invoking

federal

question

jurisdiction (Doc. 1). Plaintiff’s complaint arose following the University’s
investigation into academic misconduct by plaintiffs Cheng and Tezcan,
subsequent to a complaint f with the University (Doc. 1-2).
Plaintiff’s complaint also included an attached motion for temporary
restraining order seeking injunctive relief to bar defendants from continuing to
investigate

the

alleged

research

misconduct.

Upon

reassignment

to

the

undersigned from Chief Judge Reagan, the matter was referred to Magistrate
Wilkerson for a status conference to discuss the requested injunctive relief and
potential resolution (Doc. 17).

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Following the status conference, the matter was set for hearing before the
undersigned on June 17, 2015 (Doc. 20). At the hearing, the parties discussed
the matter at hand with regard to preliminary injunctive relief. Plaintiff called
multiple witnesses including defendant Ford, Dr. David DiLilla, associate provost
for academic affairs, and plaintiff Dr. Jale Tezcan. Near the end of the two and a
half hour hearing, defendants raised issue with the merits of plaintiffs’ claim
under 28 U.S.C. § 1983, thereby challenging the Court’s jurisdiction over the case
in its entirety. The Court took the matter under advisement upon consideration of
the memorandum proposed by defendants at that time. Following the hearing,
defendant’s filed said memorandum styled as a response in opposition to
plaintiff’s motion for preliminary injunction, which included the issues touched
on during the hearing (Doc. 24). Thereafter, plaintiff filed a response opposing
defendants’ memorandum (Doc. 25).
III.

LAW AND APPLICATION

a. Removal Standard
A district court may exercise removal jurisdiction only if it would have
original subject matter jurisdiction over the action as originally brought by the
plaintiff. U.S.C. § 1441(a). If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction over a case removed from state
court, the case must be remanded. 28 U.S.C. § 1447(c). Under 28 U.S.C. §
1441(a), “any civil action brought in a State court of which the district courts of
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the United States have original jurisdiction, may be removed by the defendant or
the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.”
The parties to this action are not diverse; hence, the original jurisdiction
necessary for removal, if such jurisdiction exists, must be based on the presence
of a federal question. The defendants were able to convince the Court to accept
jurisdiction over the case on this basis, contending that the case arose “under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. However, at
the evidentiary hearing, defendants raised a question of jurisdiction over the case
in its entirety, when they challenged plaintiffs’ Section 1983 claim by alleging that
plaintiffs failed to establish a recognized constitutionally protected property or
liberty interest.
b. 42 U.S.C. § 1983
Section 1983 of the United States Code provides that a plaintiff may recover
civilly if he or she is deprived of a constitutional right by a private individual
acting under color of law. That section states that:
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State… subjects, or causes
to be subjected, any citizen of the United States… to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and law, shall be liable to the party injured in
an action at law.”
42 U.S.C. §1983. Thus, the initial inquiry into a section 1983 action is whether
the conduct complained of deprived the plaintiff of a right, privilege, or immunity
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secured by the Constitution or laws of the United States. Kramer v. Village of N.

Fond du Lac, 384 F.3d 856, 861 (7th Cir.2004).
c. Federal Question Jurisdiction
The federal district courts have original jurisdiction over “all civil actions
arising under the Constitution, laws or treaties of the United States.” 28 U.S.C. §
1331. In assessing the propriety of removal based on federal question
jurisdiction, the district court applies the well-pleaded complaint rule which
provides that such jurisdiction exists “only when the federal question is presented
on the face of the plaintiff's properly pleaded complaint.” Jass v. Prudential

Health Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir.1996). In defendants’ brief
opposing the motion for preliminary injunction, they now assert that federal
question jurisdiction does not exist, as plaintiffs have failed to articulate a
constitutionally protected property or liberty interest.
Liberty interests stem from the Constitution, while property interests have
their foundation in state law such as statutes, regulations, or contracts. Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). To reach any due
process issue, a plaintiff must allege that his or her claims implicate a property or
liberty interest. Id. at 569-70 (1972). However, if plaintiffs’ alleged deprivation is
not one of a recognized liberty or property interest, the allegations fail to support
a § 1983 claim. See e.g. Paul v. Davis, 424 U.S. 693 (1976); Elliott v. Hinds, 786
F.2d 298 (7th Cir.1986).
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i. Property Interest
A party claiming a deprivation of a property interest must have a legitimate
claim of entitlement to it. Paul, 424 U.S. at 696; Beischel v. Stone Bank Sch.

Dist., 362 F.3d 430, 435 (7th Cir.2004). The Seventh Circuit has explained that,
“To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it. It is a purpose of the
ancient institution of property to protect those claims upon
which people rely in their daily lives, reliance that must not be
arbitrarily undermined. It is a purpose of the constitutional
right to a hearing to provide an opportunity for a person to
vindicate those claims.”

Wolf v. Larson, 897 F.2d 1409, 1411 (7th Cir.1990). The due process clause of
the Fourteenth Amendment forbids a state from depriving any person of “life,
liberty, or property, without due process of law.” To state a claim for a procedural
due process violation, a plaintiff must establish that there is “(1) a cognizable
property interest; (2) a deprivation of that property interest; and (3) a denial of
due process.” Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir.2004). The
issue before the court is whether plaintiff’s established a cognizable property
interest in this case.
Plaintiffs assert that defendants impaired their property interest by
violating the Research Integrity and Misconduct Policy in two ways. First,
plaintiffs allege that defendant Ford’s actions, by continuing the Research
Misconduct investigation past the Inquiry Phase without an adequate basis for
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doing so, deprived plaintiffs of property rights to their research and its
publication (Doc. 1-2, ¶26). Second, plaintiffs allege that the “violation of the
Policy also constitutes de facto disciplinary sanctions on Cheng and Tezcan
without due process” (Doc. 1-2, ¶27). However, such assertions do not establish a
constitutionally protected property interests that arise from the Policy.
With regard to plaintiffs’ future publication in Transactions on Geoscience

and Remote Sensing, plaintiff fails to cite to an Illinois statute or section of the
University’s Policies that establishes plaintiffs’ cognizable property interest in
publishing their research. Moreover, plaintiff provided no facts on the face of their
complaint to assert a contractual or otherwise enforceable claim for future
publication that would establish a legitimate claim of entitlement. Furthermore,
with regard to the claim of de facto disciplinary sanctions, the Seventh Circuit has
held that “internal discipline without further adverse employment consequences
does not implicate a protected property interest.” Powell v. Fujimoto, 119 F. App'x
803, 805 (7th Cir. 2004). Accordingly, the Court finds that plaintiff’s claim does
not give rise to a constitutionally protected property interest.
ii. Liberty Interest
Plaintiffs next argue that defendants deprived them of a liberty interest in
their positive reputations without due process (Doc. 1-2, ¶30). Damage to
reputation alone, even by a government entity, does not implicate a liberty interest
protected by the Due Process Clause. See Paul v. Davis, 424 U.S. 693, 701 (1976).
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Additionally, the Seventh Circuit has established that, with regard to liberty
interest in reputation:
“It is well-settled that an individual has no cognizable liberty
interest in his reputation; consequently, when a state actor makes
allegations that merely damage a person's reputation, no federally
protected liberty interest has been implicated. See Paul v. Davis, 424
U.S. 693, 711–12 (1976); Hojnacki v. Klein–Acosta, 285 F.3d 544,
548 (7th Cir.2002). Indeed, “mere defamation by the government
does not deprive a person of liberty protected by the Fourteenth
Amendment, even when it causes serious impairment of one's future
employment.” Hojnacki, 285 F.3d at 548 (internal quotations and
citations omitted). Rather, it is only the “alteration of legal status,”
such as governmental deprivation of a right previously held, “which,
combined with the injury resulting from the defamation, justif[ies]
the invocation of procedural safeguards.” Paul, 424 U.S. at 708–09;
Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir.2001).”

Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir. 2005)
To establish a liberty cause of action, a plaintiff must show that: (1)
plaintiff was stigmatized by the defendant's conduct; (2) the stigmatizing
information was publicly disclosed; and (3) plaintiff suffered a tangible loss of
other employment opportunities as a result of the public disclosure. Covell v.

Menkis, 595 F.3d 673, 677–78 (7th Cir.2010).
Additionally,

stigmatizing

statements

made

to

employees

within

a

department are not considered public dissemination. Id. at 678 (citing McMath v.

City of Gary, 976 F.2d 1026, 1035-1036 (7th Cir.1992)).
In the present case, plaintiffs fail to establish a protectable liberty interest
in their reputations under the factors listed above. Townsend v. Vallas, 256 F.3d
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661, 671 (7th Cir. 2001)(“requirement that the employee show that he suffered a
tangible loss of other employment opportunities is consistent with the case
authority insisting that a liberty interest claim not be unduly speculative.”)
Absent a threshold showing of a protectable interest, the Court cannot
proceed with the claim for deprivation of plaintiffs’ rights and requested injunctive
relief.

In

summary,

plaintiffs

fail

to

identify

a

recognized property

or

liberty interest affording this court jurisdiction, and their claim for due process
violations under 42 U.S.C. § 1983 must be dismissed.
IV.

CONCLUSION

Upon dismissal of plaintiffs’ sole claim raising a federal question, the court
no longer has subject matter jurisdiction. Also, with no additional claims in the
single-count complaint, the Court must DISMISS this case with leave to refile a
suitable claim in state court.
IT IS SO ORDERED.

Digitally signed
by David R.
Herndon
Date: 2015.07.06
14:29:19 -05'00'

Signed this 6th day of July, 2015.

United States District Judge

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