In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2103
V ICTOR S ANTANA,
Plaintiff-Appellant,
v.
C OOK C OUNTY B OARD OF R EVIEW , L ARRY R OGERS, JR.,
JOSEPH B ERRIOS, B RENDAN F. H OULIHAN, S COTT M.
G UETZOW, JOHN P. S ULLIVAN, and
T HOMAS A. JACONETTY,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-05027—Milton I. Shadur, Judge.
A RGUED F EBRUARY 23, 2012—D ECIDED M AY 9, 2012
Before F LAUM and T INDER, Circuit Judges, and S HADID,
District Judge.
The Honorable James E. Shadid, District Judge for the
United States District Court for the Central District of Illinois,
sitting by designation.
2 No. 11-2103
T INDER, Circuit Judge. The Cook County Board of
Review has the power to “revise, correct, alter, or modify
any [property tax] assessment, as appears to be just.” 35
ILCS 200/16-95. Unsurprisingly, the Board’s exercise of
its considerable power is not free from controversy,
some of which has found its way into federal court
through this case: Victor Santana, a self-described tax
consultant who worked for the Board for ten years, until
2002, alleges that the defendants, elected and appointed
Board employees, violated his federally protected rights
by (1) “red flagging” his clients’ files and by (2) running
the Board as a “pay for play” racketeering enterprise
that sought to extort campaign donations and consulting
work from him. After considering several amended
complaints and after examining the materials supporting
one of Santana’s central allegations—that he was sum-
marily banned from the Board—the district court dis-
missed Santana’s fourth amended complaint for failure
to state a claim. We affirm.
Before we can explain our agreement with the
district court—why the most recent version of Santana’s
complaint failed to state a viable 42 U.S.C. § 1983 or civil
RICO claim, 18 U.S.C. § 1962(c)—we must take a few
pages to discuss the development of this case in order
to address Santana’s argument that the district court
improperly limited discovery on his assertion that he
was banned from the Board’s offices completely and
not only from the Board’s private offices, as the
defendants maintained (correctly, it turns out).
Santana’s case did not begin well. The day after he
filed his initial complaint the district court struck it for
No. 11-2103 3
its obvious failure to comply with Rule 8(a). The district
court did not think that it or defense counsel could fairly
be required to parse its 19 repetitive and amorphous
“counts” spread over 269 paragraphs. Santana’s first
amended complaint fared somewhat better. It explained
that since he stopped working for the Board, Santana
had assisted “thousands” of taxpayers with tax-review-
related paperwork. Although Santana does not claim to
have assisted taxpayers on the Board’s premises and
although as a non-lawyer he is not permitted to appear
before the Board on another taxpayer’s behalf, he alleged
that his First Amendment, equal protection, and due
process rights were violated when the defendants
banned him from the Board’s premises without reason
or notice and announced the ban through “the news
media.” Santana claimed he was not given a reason for
the ban, but he believed that it was a product of his
refusal to contribute to Board Commissioners’ election
campaigns, unlike many others whose work involves
the Board.
Santana also alleged in his first amended complaint
that defendants Rogers, Guetzow, and Sullivan com-
mitted wire fraud by sending letters to unidentified
taxpayers stating that they must appear at hearings
before the Board when it was only a trick to get them
to talk about Santana. He accused those same defendants
plus defendant Jaconetty of intimidating taxpayers to
appear before the Board, threatening tax increases if
they didn’t. Finally, Santana alleged that the Board Com-
missioners had committed bribery by favoring the
4 No. 11-2103
lawyers and law firms that donated to their campaigns.
Santana believed that those alleged violations of state
and federal law together with his injuries stated a civil
RICO claim.
Relying on his allegation that he was completely
banned from the Board’s premises, the district court
concluded that Santana had stated § 1983 claims sufficient
to survive the defendants’ motion to dismiss. Santana v.
Cook Cnty. Bd. of Review, 700 F. Supp. 2d 1023, 1030 (N.D.
Ill. 2010). His RICO claim, however, was dismissed. Id.
The district court concluded that Santana had not
alleged wire fraud with sufficient particularity to
satisfy Rule 9(b), that intimidation is not a predicate
act for a RICO claim, and that the alleged extortion was
only to obtain information about Santana, not property,
as required by RICO. Id. at 1034 (citing Scheidler v. Nat’l
Org. for Women, Inc., 537 U.S. 393, 410 (2003)). As for
the alleged bribery, the district court concluded that
Santana had not said how it harmed him in his business
or property and so he did not have standing under
RICO § 1964(c). Id. at 1035.
Santana amended his RICO claim, asserting this time
that the defendants operated the Board as a “pay for
play” racketeering enterprise, extorting and conspiring
to extort campaign contributions from tax attorneys
and consultants in exchange for tax reductions. Because
Santana would not pay his consulting business was
harmed. And beyond preventing him from getting
positive outcomes for his clients, Santana alleged that
“the Defendants used their nearly unchecked power, and
No. 11-2103 5
the veil of legitimacy granted by public office, to ban
the Plaintiff, publically slander him, and make him a
political scapegoat—destroying his business, property,
reputation, and ability to make a living in Chicago.”
Santana v. Cook Cnty. Bd. of Review, 270 F.RD. 388, 392
(N.D. Ill. 2010) (quoting Santana’s memorandum
in support of his amended complaint). After this amend-
ment, the district court denied the defendants’ motion
to dismiss. Id. at 390.
The district court’s next step was not to set a discovery
schedule, as Santana wanted, but instead to review evi-
dence on the scope of Santana’s ban, as requested by
the defendants. At this point in the development of
his case, Santana’s claims rested largely (if not com-
pletely) on his allegation that he had been banned from
the Board’s public and private areas. The defendants
believed that the transcript of the meeting at which
Santana was banned revealed that the ban covered
the Board’s private offices only, a place non-employees
have no right to be. As evidence to the contrary, that
he was banned from the private and public areas of the
Board’s offices, Santana offered a Fox News segment
that allegedly announced his complete ban.
The district court reviewed the parties’ submissions—
the meeting transcript and the news clip—and found
that “those things show unambiguously that plaintiff
Santana’s characterization is wrong and the characteriza-
tion by the defendants is right about the limited scope
of the ban. There isn’t any question at all they talked
about a broader ban and then they abandoned that
6 No. 11-2103
notion.” Santana was only banned from “the internals of
the Board of Review.” And “this is just the way in
which that [Fox News] commentator, whatever the com-
mentator’s source was, characterized the ban. . . .” The
district court ordered Santana to amend his complaint
accordingly.
Santana argues that the district court’s consideration
of the meeting transcript and the news segment is revers-
ible error because they are matters outside the pleadings,
consideration of matters outside the pleadings con-
verts a motion to dismiss to a motion for summary judg-
ment, and when that happens summary judgment pro-
cedures must be followed. But he thinks those pro-
cedures were not followed because he was prevented
from presenting what he considers pertinent material.
It is true that “consideration of outside matter without
converting [a] motion may result in reversible error.”
Gen. Elec. Capital v. Lease Resolution Corp., 128 F.3d 1074,
1080 (7th Cir. 1997). It may, but in this case it does not
for at least two reasons. First, the transcript and the
news segment are not “matters outside the pleadings”
within the meaning of Rule 12(d): “these were [both]
documents to which the Complaint had referred, . . . the
documents were concededly authentic, . . . and they were
central to the plaintiffs’ claim.” Hecker v. Deere & Co.,
556 F.3d 575, 582 (7th Cir. 2009) (noting that this court
has been “relatively liberal” in interpreting what must
be considered “matters outside the pleadings” for the
purpose of Rule 12(d) and citing cases). Second, even
assuming that the district court did convert the defen-
No. 11-2103 7
dants’ motion to one seeking partial summary judg-
ment under Rule 56, or even assuming the court
acted on its own motion under Rule 56(f), there was no
error. The parties had ample notice, time to respond, and
the district court considered everything that the parties
claimed to be probative of the scope of the ban. And
this conclusion is not undermined by the district court’s
denial of Santana’s extensive discovery requests. The
district court denied Santana’s requests (or, more
precisely, put them on hold while considering the scope
of the ban) for an excellent reason: Santana’s proposed
discovery did not concern the scope of the ban—its legal
impact or propriety under the Board’s procedures, per-
haps, but not its scope. That alone—the scope of the
ban—was the simple threshold question that the
district court wanted answered, was easily answerable
by materials referred to in the complaint, and that, once
answered, could (and did) dramatically narrow the
issues. The district court’s action was fair, eminently
sensible, and a far cry from reversible error. The oppo-
site—it was good case management.
With the scope of the ban resolved, Santana filed a
third amended complaint. But because it still pressed
the issue of a “ban from the offices of the Board of Re-
view,” the district court stated that its allegations could
not be advanced in “objective good faith” and consistent
with Rule 11. The district court urged the parties to confer
and focus the issues. Santana filed a fourth amended
complaint approximately one month later and now
appeals its dismissal.
8 No. 11-2103
The fourth amended complaint asserts that Fox News
ran stories about improper influence on the Board
by one of Santana’s associates, State Representative
Paul Froehlich. Because of Santana’s relationship with
Froehlich, and because of Santana’s history with the
Board, the defendants allegedly decided to scapegoat
Santana as the source of the Board’s problems. To accom-
plish that, the defendants resolved and then announced
through interviews on Fox News that they would
“red flag” tax appeals from Santana’s clients, resulting
in tax increases for them. Santana further alleged that
the defendants ran the Board as a “pay for play” system
rife with bribery and extortion, where contributing
parties got consistently better results than non-con-
tributing ones. (The fourth amended complaint makes
no reference to a ban.)
Based on these facts, as elaborated in his complaint,
Santana asserted a civil RICO claim and § 1983 claims
for violations of his Fourteenth Amendment rights to
procedural due process and to equal protection and his
First Amendment rights to free association and to
petition the government. The district court dismissed
Santana’s complaint for failure to state a claim. Santana
appeals. We review a dismissal for failure to state a
claim de novo. McCauley v. City of Chicago, 671 F.3d 611,
615 (7th Cir. 2011). And that is how we review all of
Santana’s claims except his equal protection class-of-one
claim and his First Amendment right-to-petition claim.
Santana’s appellate brief mentions equal protection in
its statement of issues but not otherwise. His right-to-
No. 11-2103 9
petition claim is not mentioned at all. Arguments Santana
may have made to the district court are insufficient to
present these claims on appeal and they are now waived.
See, e.g., Logan v. Wilkins, 644 F.3d 577, 583 (7th Cir. 2011);
Faas v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir.
2008). In reviewing the dismissal of Santana’s other claims,
we accept well-pleaded facts in the complaint as true
and consider whether those allegations state a claim to
relief that is “plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). To do so, Santana must plead
“factual content that allows the court to draw the rea-
sonable inference that [a] defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
We consider first Santana’s procedural due process
claim. As a necessary component of a procedural due
process claim, Santana must identify a protected prop-
erty or liberty interest. Kahn v. Bland, 630 F.3d 519, 527
(7th Cir. 2010), cert. denied, 132 S. Ct. 754 (2011). Santana
asserts both. He claims a protected property interest in
his private employment assisting taxpayers prepare
submissions to the Board. To have a property interest
protected by the Fourteenth Amendment, however,
Santana must have “more than a unilateral expectation of
[the claimed interest]. He must, instead, have a legitimate
claim of entitlement to it.” Id. (quoting Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972)). An entitlement
10 No. 11-2103
of that magnitude arises when “statutes[,] regulations [or
a contract] . . . establish a framework of factual conditions
delimiting entitlements which are capable of being ex-
plored at a due process hearing.” Id. (quoting Fincher v.
South Bend Heritage Found., 606 F.3d 331, 334 (7th Cir.
2010)). Santana has not alleged anything of the sort. He
does not point to any statute, regulation, or contract that
suggests his work as a consultant for private clients
might be a constitutionally protected property interest
and so that part of his claim ends here.
For his procedural due process claim based on a dep-
rivation of a protected liberty interest, Santana alleges
that defamation by the defendants has deprived him of
his reputation and his ability to work as a consultant
and that he has therefore stated a claim on a “stigma
plus” theory. See Brown v. Michigan City Ind., 462 F.3d 720,
730 (7th Cir. 2006). As the name implies, Santana
must allege more than just defamation or stigmatic-
harm, he must also state a “plus”: He must allege that
the defendants’ defamatory statements “alter or extin-
guish a right or status previously recognized by state
law.” Id. For the sake of argument, we assume that the
Board defamed Santana by planting stories with Fox
News about his corruption and the measures the Board
had to take to deal with it. But what is the “plus”?
What “right or status previously recognized by state
law” does the (assumed) defamation “alter or extin-
guish”? Santana, of course, answers by pointing to
his ability to work as a tax consultant. Defamation by the
government, however, “does not deprive a person of a
No. 11-2103 11
liberty interest protected by the Fourteenth Amendment,
even when it causes serious impairment of one’s future employ-
ment.” Kahn, 630 F.3d at 534 (quoting Hojnacki v. Klein-
Acosta, 285 F.3d 544, 548 (7th Cir. 2002)) (emphasis added).
And Santana has plausibly alleged much less than that.
He claims constitutional injury because of publicity
about the forms he works on being “red flagged.” But
we share the district court’s inability to see how the
Board could possibly know which forms Santana has
worked on, and his bald and vaguely ominous assertion
at argument that the Board has a “system of coding”
failed to enlighten us. See Montgomery v. American
Airlines, Inc., 626 F.3d 382, 392 (7th Cir. 2010) (argument
not developed on appeal is waived). Santana is not an
attorney and so cannot appear before the Board to rep-
resent clients and the tax forms he helps with do not
request or require a consultant to identify himself. Com-
pleted forms can be submitted by mail or dropped at
the Board’s front desk. Santana has not told us in
his complaint, in his brief, or at argument how he
cannot work for his clients anonymously, and not by
doing anything extraordinary or clandestine but just
by working for his clients as a consultant on property-
tax matters usually would. In short, the Board’s announce-
ment that it would apply additional scrutiny to Santana’s
clients’ submissions—what Santana calls red flag-
ging—was, for all we can tell, an empty gesture. And an
empty gesture is not enough to cause something worse
than “serious impairment” to his future employment as
required to state a stigma-plus claim. Kahn, 630 F.3d at 534.
12 No. 11-2103
Moreover, Santana has not plausibly alleged that
having the forms he worked on (or the ones that the
Board could figure out that he worked on) “red flagged”
has resulted or will result in improper treatment by
the Board. He asserts that tax increases have been
given where in the past there were reductions. But
so what? Santana’s position cannot be that all his
clients (no matter who, no matter when) are entitled
to reductions or that once his clients have received a
reduction they are entitled to additional reductions in
the future and are immune from increases. Santana has
no constitutional right to have his clients’ applica-
tions rubber-stamped. Santana’s procedural due process
claim was properly dismissed.
In his attempt to state a First Amendment claim,
Santana alleges that the Board has retaliated against
him for his association with Representative Froehlich
and for his refusal to donate to the Board Commission-
ers’ election campaigns. To state a First Amendment
retaliation claim, Santana must plausibly allege that
(1) he engaged in activity protected by the First Amend-
ment, (2) he suffered an adverse action that would
likely deter future First Amendment activity, and (3) the
First Amendment activity was “at least a motivating
factor” in the defendants’ decision to retaliate. Bridges
v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Wood-
ruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)); see
also Greene v. Doruff, 660 F.3d 975, 979-80 (7th Cir. 2011)
(explaining the “motivating factor” causal requirement).
We will assume that Santana’s association with Represen-
tative Froehlich is protected and that he has there-
No. 11-2103 13
fore satisfied the first requirement. We agree with the
district court, however, that Santana has not satisfied
the second requirement. Recall, the ban is no longer part
of the complaint. The question now is only whether
the defendants have engaged in “adverse conduct” suffi-
cient to deter future First Amendment activity by red
flagging his submissions for special review and telling
Fox News that they would. As we already noted, we
have not been told how forms that Santana worked on
could be singled out. And, again, even if we get past
that, Santana has not explained how any heightened
scrutiny of his submissions has resulted in unusually
poor (as opposed to normal win-some, lose-some) out-
comes for his clients.
Santana emphasizes that an adverse action that may
not be independently actionable will be actionable
under § 1983 if it is done as retaliation for engaging in
protected First Amendment activity. Bridges, 557 F.3d
at 552 (citing cases). That accurate statement of law,
however, does not eliminate the requirement that to
state a claim the alleged adverse action—independently
tortious or not—must be sufficient to deter an ordinary
person from engaging in that First Amendment activity
in the future. See Surita v. Hyde, 665 F.3d 860, 878 (7th
Cir. 2011); Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir.
2009). Consistent with our discussion of Santana’s due
process claim, we do not think that Santana’s allegations
about the defendants “red flagging” his clients’ submis-
sions to the Board and telling Fox News that they would
are sufficient to deter an ordinary person from exercising
his right to associate with and to donate or not donate to
14 No. 11-2103
particular politicians. After all, an ordinary person
will not be deterred by a threat that his clients’ filings
will receive special scrutiny if there is no way to know
which filings are his. Santana’s First Amendment
claims were therefore properly dismissed.
Finally, Santana alleges that the defendants’ alleged
racketeering activity—including bribery, money laun-
dering, honest-services fraud, and extortion—injured
him “in business or property” and therefore violated
RICO, 18 U.S.C. § 1964(c). But Santana cannot state
a RICO claim for much the same reason that he cannot
state a § 1983 claim: He has not plausibly alleged how
he could have been injured in his business or property
by the defendants’ conduct. We have already explained
why the defendants’ alleged segregation and scrutiny
of Santana’s clients’ submissions, and the defendants’
announcement that they would do so in interviews on
Fox News, do not constitute an injury to his business
or property. For all Santana has alleged, his work as a
consultant should be undisturbed. And so while the
defendants’ statements to Fox News may amount to
defamation under Illinois law (although we reach no
conclusion about that), that does not advance his claim
under § 1964(c); his alleged reputational injury is
personal, and that is true even if it could result in a loss
of income. See Evans v. City of Chicago, 434 F.3d 916, 927
(7th Cir. 2006). If the defendants had the power to
interfere directly with Santana’s promised or contracted-
for work as consultant and then tried to do so, Santana
may have been able to allege an injury that meets the
§ 1964(c) “business or property” requirement. Id. at 928.
No. 11-2103 15
But (again) that is not this case. Santana has not alleged
in his complaint—or explained in any other statement
to this court—how his work is not entirely anonymous
(from the defendants’ perspective), independent, and
private and thus beyond the defendants’ reach, no
matter what their purpose.
Santana’s allegation that Joseph Berrios attempted to
extract free consulting services from him adds nothing.
Consider, how would that extortion go? What leverage
could Berrios have over Santana’s business or property?
To penalize Santana for disobedience, Berrios would
need to identify Santana’s clients. And as we have
now said too many times, Santana has failed to
allege how that is possible.
Santana has tried to state a claim against these defen-
dants in five different complaints. We agree with the
district court that there should be no “hydra-like effort
by [Santana’s] counsel to grow still another head
through a [sixth] complaint. Enough is enough.”
A FFIRMED.
5-9-12