In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1809
SHERRY KATZ‐CRANK,
Plaintiff‐Appellant,
v.
KIMBERLY HASKETT,
Defendant‐Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:13‐cv‐00159‐TWP‐DML — Tanya Walton Pratt, Judge.
____________________
ARGUED NOVEMBER 13, 2015 — DECIDED DECEMBER 8, 2016
____________________
Before POSNER, RIPPLE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Sherry Katz‐Crank is a Michigan
lawyer with a practice in cemetery management. An un‐
scrupulous client used her services in the course of defraud‐
ing cemetery trust funds of $22 million. When Katz‐Crank
discovered the fraud, she promptly contacted state regulato‐
ry authorities. The client was indicted on embezzlement
2 No. 15‐1809
charges. Katz‐Crank was charged as an aider and abettor,
though a jury would ultimately acquit her.
Her reputation disgraced and her law practice in sham‐
bles, Katz‐Crank sued the state and county officials who
were in any way involved in the prosecution. She alleged
that they conspired to violate her federal constitutional
rights; she raised several state‐law claims as well. The dis‐
trict judge entered judgment on the pleadings in the defend‐
ants’ favor on some claims and dismissed others for failure
to state a claim.
We affirm. Most of Katz‐Crank’s claims are barred by the
Eleventh Amendment or prosecutorial immunity. The
balance of the complaint was properly dismissed for failure
to state a plausible claim for relief.
I. Background
The case was resolved on the pleadings, so the following
factual summary is from Katz‐Crank’s complaint. Katz‐
Crank is a lawyer from Michigan with a practice in the
esoteric field of cemetery management. In 2004 Robert
Nelms retained her to assist in his acquisition of cemeteries
and funeral homes in Indiana, Michigan, and Ohio. The trust
funds associated with these cemeteries were valued at about
$22 million.1 In 2007 Katz‐Crank learned that Nelms was
1 To provide for the perpetual maintenance of cemeteries, states custom‐
arily require cemeteries to hold a portion of their assets in trust. See
generally IND. CODE §§ 23‐14‐49‐1, 23‐14‐51‐2.
No. 15‐1809 3
under investigation by the Indiana Secretary of State for
misappropriating cemetery trust assets.
Katz‐Crank promptly called Kimberly Haskett, an inves‐
tigator in the Secretary of State’s office, to offer her full
cooperation in the investigation. Haskett did not return the
call. Apparently she didn’t need Katz‐Crank’s help; in 2008
Nelms was indicted on charges of embezzling $22 million in
cemetery trust funds.2 He pleaded guilty pursuant to a plea
bargain and agreed to testify against Katz‐Crank.
Although Haskett never returned Katz‐Crank’s call, she
did find time to contact some of her clients to advise them
that Katz‐Crank was under criminal investigation. In July
2008 Katz‐Crank was charged in Marion County with aiding
and abetting Nelms’s embezzlement. She was arrested that
month, and both the Indiana Secretary of State and the
Marion County prosecutor’s office issued press releases
publicizing the arrest.3 On December 7, 2010, a jury acquit‐
ted Katz‐Crank of all charges.
2 Nelms was not the first of Katz‐Crank’s clients to embezzle cemetery
trust funds. In 2004 she represented Clayton Smart during his purchases
of Michigan cemeteries valued at $45 million. Katz‐Crank later discov‐
ered that Smart had misappropriated trust funds and reported the theft
to the authorities. Smart was convicted of fraud.
3 For example, the press release posted on the Indiana Secretary of State’s
website stated as follows: “Crime can be violent, or can be executed
using white‐collar weapons like a pen, a briefcase, or in [Katz‐Crank’s]
case, a cemetery plot. Our office will continue to work effectively with
other parts of government, like [Marion County Prosecutor] Carl’s office,
to ensure we get results … .” Press Release, Ind. Sec’y of State, Secretary
4 No. 15‐1809
Exactly two years later Katz‐Crank filed suit in federal
court against Marion County and multiple state and county
officials who were directly or indirectly involved in the
criminal investigation and prosecution. The state defendants
are former Indiana Secretary of State Todd Rokita, Haskett,
and Charlie Williams, another investigator in the Secretary
of State’s office. The county defendants are former Marion
County Prosecutor Carl Brizzi, former Deputy Prosecutor
Mary Hutchinson, former Deputy Prosecutor Barbara Craw‐
ford, Investigator Thomas Trathen, and Marion County
itself.
The number of claims is no less multitudinous. Katz‐
Crank brought federal claims under 42 U.S.C. § 1983 for
malicious prosecution, “abuse of process,” and violation of
the Fourth and Fourteenth Amendments; three federal
conspiracy claims (one each under § 1983 and 42 U.S.C.
§§ 1985(3) and 1986); and state‐law claims for malicious
prosecution, abuse of process, and intentional infliction of
emotional distress. The defendants were sued in their official
and individual capacities.
The defendants moved variously for judgment on the
pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure and for dismissal under Rule 12(b)(6) for failure
to state a claim. The judge entered judgment on the plead‐
ings in the defendants’ favor on some of the federal claims,
Rokita Applauds Grand Jury Indictments in Cemetery Fraud Case
(July 15, 2008) (on file with author), http://www.in.gov/sos/securities/
2854.htm (last visited Dec. 8, 2016).
No. 15‐1809 5
dismissed others with prejudice under Rule 12(b)(6), and
dismissed the state‐law claims with leave to replead. Katz‐
Crank filed an amended complaint limited to the state‐law
claims. It too was dismissed for failure to state a claim, this
time with prejudice. This appeal followed.
II. Discussion
Our review is de novo. Barr v. Bd. of Trs. of W. Ill. Univ.,
796 F.3d 837, 839 (7th Cir. 2015). We don’t need to parse
which of Katz‐Crank’s claims were resolved under
Rule 12(c) and which were resolved under Rule 12(b)(6); “[a]
motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c) is subject to the same standard
as a Rule 12(b)(6) motion to dismiss.” United States v. Wood,
925 F.2d 1580, 1581 (7th Cir. 1991). To survive a Rule 12(b)(6)
motion, the complaint must “state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). We accept the allegations in the complaint as true
unless they are “threadbare recitals of a cause of action’s
elements, supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
A. Federal Claims
1. Claims Against the State and County
We begin with the federal claims against Marion County
and against the state and county officials in their official
capacities, which are the equivalent of claims against the
state and county. See Pennhurst State Sch. & Hosp. v. Halder‐
man, 465 U.S. 89, 101–02 (1984) (state officials); Grieveson v.
Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (county officials).
These claims can be quickly dispatched.
6 No. 15‐1809
The Eleventh Amendment bars suit in federal court
against nonconsenting states absent some specific types of
congressional authorization not applicable here.4 See
Pennhurst, 465 U.S. at 101–02; see also Va. Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 253–54 (2011). Accordingly,
all claims against the state officials in their official capacities
were properly dismissed on Eleventh Amendment grounds.
Marion County is a “person” under § 1983 and may be
held liable for violating Katz‐Crank’s federal rights if its
policies or customs caused the violation. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690–91 (1978). The complaint alleges
lots of individual misconduct by county officials, but it
nowhere identifies any county policy or custom that caused
Katz‐Crank’s injury. Katz‐Crank’s brief does not fill the gap.
That dooms the claims against the County itself (and by
extension, the claims against the county officials in their
official capacities). See id. at 694; see also Grieveson, 538 F.3d at
771.
2. Claims Against the Marion County Prosecutors
Katz‐Crank also brings several federal claims against
three Marion County prosecutors in their individual capaci‐
ties. Prosecutors are protected by robust immunity from
federal tort liability, “whether common law or constitution‐
al, … for acts they commit within the scope of their em‐
4 “The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. CONST. amend. XI.
No. 15‐1809 7
ployment as prosecutors.” Fields v. Wharrie, 740 F.3d 1107,
1110 (7th Cir. 2014) (citations omitted). Katz‐Crank’s federal
claims against the prosecutors implicate conduct within the
scope of this broad immunity.
Katz‐Crank alleges that the prosecutors (1) indicted her
without probable cause; (2) made false and inflammatory
public statements in press releases; (3) acted “maliciously”;
(4) refused to consider exonerating evidence she tried to give
them; (5) presented false evidence to the grand jury; and
(6) delayed her trial. Most of these allegations encompass
prosecutorial acts or omissions for which the Marion County
prosecutors enjoy absolute immunity. See Bianchi v.
McQueen, 818 F.3d 309, 318 (7th Cir. 2016) (explaining that
absolute immunity covers “what goes on in the courtroom”
and grand‐jury proceedings); id. (“[I]t’s clear that absolute
immunity knocks … the [plaintiff’s] claims premised on
allegations that [the prosecutor] presented false statements
to the grand jury and at trial.”).
The only close call is the allegation about false and in‐
flammatory public statements in press releases, which
arguably falls outside the immunity shield. The Supreme
Court has held that a prosecutor’s “statements to the media
are not entitled to absolute immunity.” Buckley v. Fitzsim‐
mons, 509 U.S. 259, 277 (1993). But a close reading of the
complaint reveals that this allegation—made only very
generally, without identifying any particular false state‐
ment—appears in the complaint’s description of the means
by which the defendants conspired to deprive Katz‐Crank of
her federal rights in violation of § 1983. As we’ll explain in a
moment, the § 1983 conspiracy claim fails because the com‐
plaint doesn’t state a claim for any underlying constitutional
8 No. 15‐1809
tort. So even if this particular allegation doesn’t fall within
the scope of prosecutorial immunity, it does not support a
cognizable federal claim for relief.
3. Claims Against the State Officials and Investigators
The state officials and the county investigators do not en‐
joy absolute immunity from suit in their individual capaci‐
ties, so we turn now to the substance of the federal claims
against them. Katz‐Crank brings claims under § 1983 for
malicious prosecution, abuse of process, and a violation of
the Fourth and Fourteenth Amendments. The complaint
doesn’t identify any constitutional basis for the first two
claims, and Katz‐Crank’s brief doesn’t either. Indeed, her
brief doesn’t address the substance of these claims at all; she
focuses instead on the scope of the defendants’ immunity
under the Indiana Tort Claims Act.
We’re not inclined to construct a constitutional basis for
Katz‐Crank’s claims when she has failed to do so herself. In
the interest of completeness, however, we note that the
Fourth Amendment claim doesn’t appear to be one for false
arrest; that claim would be time‐barred in any event. See
Wallace v. Kato, 549 U.S. 384, 391 (2007) (explaining that the
limitations period for a Fourth Amendment claim for arrest
without probable cause begins to run when the detainee
appears before a magistrate). Rather, the Fourth Amendment
claim appears to be simply a repackaged claim for malicious
prosecution.
Our circuit doesn’t permit this maneuver; we’ve held that
a federal claim for malicious prosecution implicates (or at
most may implicate) the right to due process, not the Fourth
Amendment, and that no federal malicious‐prosecution
No. 15‐1809 9
claim is available if state law provides a similar cause of
action. Newsome v. McCabe, 256 F.3d 747, 750–51 (7th Cir.
2001).5 Indiana does provide a remedy for malicious prose‐
cution, but the Indiana Tort Claims Act confers on public
employees a broad immunity from suit for acts committed
within the scope of their employment. IND. CODE § 34‐13‐3‐
3(6); see also Serino v. Hensley, 735 F.3d 588, 593–95 (7th Cir.
2013) (recognizing that the Indiana Tort Claims Act grants
broad immunity to governmental employees from suit for
malicious prosecution and intentional infliction of emotional
distress). We’ve held that this statutory immunity effectively
blocks a common‐law claim of malicious prosecution against
governmental officers in Indiana, and this in turn “opens the
door to federal malicious prosecution suits against such
officers.” Julian v. Hanna, 732 F.3d 842, 848 (7th Cir. 2013);
Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015).
As we’ve noted, however, Katz‐Crank hasn’t made this
argument because she hasn’t bothered to identify the basis
of her federal claims (other than pointing very generally to
the Fourth and Fourteenth Amendments). Nor has she made
any effort to explain how the allegations in her complaint
suffice to state a federal malicious‐prosecution claim. Our
own review convinces us that they do not.
5 A case now before the Supreme Court may change that rule, see Manuel
v. City of Joliet, No. 14‐9496 (oral argument held Oct. 5, 2016), but as it
stands now, a Fourth Amendment claim for malicious prosecution is
unavailable in this circuit.
10 No. 15‐1809
We’ve held that a federal malicious‐prosecution claim (if
one is available at all) borrows the elements of the state tort.
See Hart, 798 F.3d at 593. The law of malicious prosecution in
Indiana requires the plaintiff to prove the following ele‐
ments: (1) the defendant “instituted or caused to be institut‐
ed an action against the plaintiff”; (2) the defendant acted
with malice and (3) without probable cause; and (4) the
action “was terminated in the plaintiffʹs favor.” City of New
Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001).
Katz‐Crank’s claim fails on the first of these require‐
ments. She hasn’t alleged that the former Secretary of State
or any of the investigators—state or county—either institut‐
ed the prosecution against her or caused it to be instituted.
She has not alleged, for example, that these defendants plied
the prosecutors with evidence they knew to be false or
otherwise duped the prosecutors to indict her without
probable cause. See Alexander v. United States, 721 F.3d 418,
423 (7th Cir. 2013) (explaining that under Indiana law a
malicious‐prosecution claim can be made against a defend‐
ant who did not himself initiate the prosecution when the
prosecution is initiated solely based on information provid‐
ed by the defendant); Bah v. Mac’s Convenience Stores,
37 N.E.3d 539, 547 (Ind. Ct. App. 2015) (holding that a claim
for malicious prosecution is not available when a prosecutor
makes “an independent determination of whether to pursue
criminal charges”). Accordingly, Katz‐Crank failed to state a
No. 15‐1809 11
federal claim of malicious prosecution against the state
officials and the county investigator.6
To the extent that Katz‐Crank’s § 1983 claim could be
construed as an equal‐protection claim, it likewise fails. The
only conceivable way to conceptualize such a claim in the
context of this case is under a “class of one” theory. See
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). But a
class‐of‐one claim cannot be used to challenge discretionary
governmental action, like the decision to initiate prosecution.
See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 603–04 (2008);
Avila v. Pappas, 591 F.3d 552, 554 (7th Cir. 2010) (“[C]lass‐of‐
one claims cannot rest on governmental activity that is
discretionary by design, a good description of prosecutorial
selectivity in criminal law.”) (citation omitted). Even if a
class‐of‐one claim were available, Katz‐Crank hasn’t alleged
that she was treated differently than others similarly situat‐
ed, an essential element of the claim. See United States v.
Moore, 543 F.3d 891, 896–97 (7th Cir. 2008) (explaining the
“similarly situated” requirement).
Finally, we return now to the allegation that some of the
defendants gratuitously inflicted reputational harm on Katz‐
Crank. As we’ve noted, the complaint alleges that Investiga‐
tor Haskett contacted Katz‐Crank’s clients and advised them
that she was under criminal investigation. It also alleges that
the former Secretary of State and the Marion County prose‐
cutor’s office issued inflammatory press releases announcing
6
The federal abuse‐of‐process claim is also a repackaged claim for
malicious prosecution, so we do not need to separately address it.
12 No. 15‐1809
her arrest. These allegations may form the basis of an action‐
able defamation claim, but Katz‐Crank has made no effort to
fit them within any recognized constitutional doctrine.
The Due Process Clause is not “a font of tort law to be
superimposed upon whatever systems may already be
administered by the States.” Paul v. Davis, 424 U.S. 693, 701
(1976). Katz‐Crank has not alleged that the defendants
altered her legal status in some way, or impaired her em‐
ployment prospects with the government, or deprived her of
a right she once held, or revoked a license “recognized and
protected by state law.” See id. at 704–05 (legal status); id. at
705–06, 709–10 (governmental employment); id. at 707 (right
once held); id. at 710–11 (license). She alleges only that they
damaged her reputation. But “reputation alone, apart from
some more tangible interests,” is neither liberty nor property
“by itself sufficient to invoke the procedural protection of
the Due Process Clause.” Id. at 701; id. at 712 (“[P]etitioners’
defamatory publications, however seriously they may have
harmed respondent’s reputation, did not deprive him of any
‘liberty’ or ‘property’ interests protected by the Due Process
Clause.”).
Not much more is needed to resolve the remaining fed‐
eral claims. Without a viable federal constitutional claim, the
conspiracy claim under § 1983 necessarily fails; there is no
independent cause of action for § 1983 conspiracy. Cefalu v.
Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). The
§ 1985(3) claim lacks allegations of racial or class‐based
discriminatory animus, a required element. Smith v. Gomez,
550 F.3d 613, 617 (7th Cir. 2008) (“Section 1985(3) prohibits a
conspiracy to deprive another of equal protection under the
law … , but the conspiracy must be motivated by racial[] or
No. 15‐1809 13
other class‐based discriminatory animus.”). The failure of
the § 1985 claims also defeats the § 1986 claim. See id.
B. State‐Law Claims
What remains are the state‐law claims, which the judge
dismissed on the merits after giving Katz‐Crank an oppor‐
tunity to replead. Katz‐Crank argues that the judge was
wrong to apply Indiana law; she insists that Michigan law
applies instead. Not so. Indiana’s choice‐of‐law rules apply,
see Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496 (1941),
and Indiana looks to the location of “the last event necessary
to make [the defendants] liable for the alleged wrong” and
then examines “whether the place of the tort” is sufficiently
connected to the legal action. Simon v. United States,
805 N.E.2d 798, 805–06 (Ind. 2004) (quotation marks omit‐
ted). The course of conduct alleged here—the investigation,
indictment and trial—occurred in Indiana. And it cannot
seriously be argued that Indiana has only a tenuous connec‐
tion to an alleged wrongful prosecution that took place in
the Hoosier state. Indiana law applies.
The merits require only summary attention. The Eleventh
Amendment prevents us from adjudicating the state‐law
claims against the state officials in their official capacity.
Pennhurst, 465 U.S. at 121 (“[A] claim that state officials
violated state law in carrying out their official responsibili‐
ties is a claim against the State that is protected by the
Eleventh Amendment.”). The state‐law claims against the
defendants in their individual capacities are barred by
Indiana’s statutory immunity. The Indiana Tort Claims Act
provides that a “governmental entity or an employee acting
within the scope of the employee’s employment is not liable
if a loss results from … [t]he initiation of a judicial or an
14 No. 15‐1809
administrative proceeding.” IND. CODE § 34‐13‐3‐3(6); id.
§ 34‐6‐2‐38(a) (defining “employee” as a person acting on
behalf of a governmental entity, including elected officials);
id. § 34‐6‐2‐49(a) (defining “governmental entity” as the state
and any political subdivisions).
The Indiana Supreme Court interprets “scope of em‐
ployment” broadly enough to encompass all of the allega‐
tions here. Specifically, the term includes any conduct “of
the same general nature as that authorized” by the public
employer, conduct “incidental to the conduct authorized” by
the employer, and conduct done “to an appreciable extent[]
to further [the] employer’s business.” Bushong v. Williamson,
790 N.E.2d 467, 473 (Ind. 2003) (quotation marks omitted).
All of the conduct alleged here falls comfortably within the
state immunity bar. The state‐law claims were properly
dismissed.
AFFIRMED.
No. 15‐1809 15
POSNER, Circuit Judge, concurring and dissenting. I disa‐
gree with the majority only in regard to its dismissal of the
count of the complaint in which the plaintiff alleges that
some of the defendants, notably investigator Haskett, acted
outside the scope of their prosecutorial duties “with deliber‐
ate indifference to Plaintiff’s constitutional rights.” Now it’s
true that the pleading is clumsy; the count is captioned “Ma‐
licious Prosecution Pursuant to Indiana’s Tort Claims Act,” a
theory of liability that as explained in the majority opinion
has no possible merit and no possible relevance to the plain‐
tiff’s federal claims. But two of the specific allegations that
follow the caption state a claim for relief under 42 U.S.C.
§ 1983, which so far as relates to this case provides that
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the juris‐
diction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.” Typically the stat‐
ute is invoked as a means of enforcing the due process
clause of the Fourteenth Amendment.
The allegations that seem to me to state a constitutional
claim are that “Defendants assisted or caused to be pub‐
lished statements in the press and on websites and blogs
containing information regarding Plaintiff’s alleged criminal
activity which they knew was false, inaccurate and incom‐
plete and with the intent of harming Plaintiff to Defend‐
ants[’] benefit,” and also that the defendants “contacted
Plaintiff’s business clients that had no connection to this
16 No. 15‐1809
matter and advised that she was involved in criminal activi‐
ty and they should no longer do business with her.”
The defendants state that “to the extent Appellant may
have feared that the press statements would inflame the
public against her, a jury found her not guilty, meaning
there was no harm from the statements and therefore no vio‐
lation of her constitutional rights from the statements.” But
the plaintiff is not complaining about the effect of the state‐
ments on the jury—how could she, given her acquittal?—but
about their effect on her livelihood as a practicing lawyer.
In its only reference to the plaintiff’s complaint about ef‐
forts by members of the prosecutorial team to turn her cli‐
ents against her, the defendants’ brief acknowledges that
Kim Haskett “contacted Appellant’s clients and told them
that Appellant was involved in illegal activity. Whether
these matters were negligent or malicious, they were con‐
ducted in the course of Haskett’s role as investigator of secu‐
rities violations and not in any other capacity.” That’s no de‐
fense. The absolute prosecutorial immunity here invoked by
the defendants does not extend to investigators, such as
Haskett—even prosecutors lose their absolute prosecutorial
immunity when they engage in investigations. Fields v.
Wharrie, 740 F.3d 1107, 1112–13 (7th Cir. 2014).
No matter, the majority opinion states, for all that the
plaintiff is alleging (in regard to “efforts by members of the
prosecutorial team to turn her clients against her”) is defa‐
mation, and as to that the opinion states that “the Due Pro‐
cess Clause is not ‘a font of tort law to be superimposed up‐
on whatever systems may already be administered by the
States,’” quoting Paul v. Davis, 424 U.S. 693, 701 (1976). Judge
Sykes’s opinion, further quoting Paul v. Davis, goes on to say
No. 15‐1809 17
that “Katz‐Crank has not alleged that the defendants altered
her legal status in some way, or impaired her employment
prospects with the government, or deprived her of a right
she once held, or revoked a license ‘recognized and protect‐
ed by state law.’ See id. at 704–05 (legal status); id. at 705–06,
709–10 (government employment); id. at 707 (right once
held); id. at 710–11 (license). She alleges only that they dam‐
aged her reputation. But ‘reputation alone, apart from some
more tangible interests,’ is neither liberty nor property ‘by
itself sufficient to invoke the procedural protection of the
Due Process Clause.’ Id. at 701; id. at 712 (‘[P]etitioners’ de‐
famatory publications, however seriously they may have
harmed respondent’s reputation, did not deprive him of any
“liberty” or “property” interests protected by the Due Pro‐
cess Clause.’).”
The majority opinion’s reliance on Paul v. Davis, while
natural since it’s the leading case dealing with an allegation
of defamation in a section 1983 suit, misconceives the Su‐
preme Court’s opinion. The key passages in the opinion are,
first, that “The words ‘liberty’ and ‘property’ as used in the
Fourteenth Amendment do not in terms single out reputa‐
tion as a candidate for special protection over and above
other interests that may be protected by state law. While we
have in a number of our prior cases pointed out the fre‐
quently drastic effect of the ‘stigma’ which may result from
defamation by the government in a variety of contexts, this
line of cases does not establish the proposition that reputa‐
tion alone, apart from some more tangible interests such as em‐
ployment, is either ‘liberty’ or ‘property’ by itself sufficient to
invoke the procedural protection of the Due Process
Clause.” Id. at 701, emphasis added. The second key passage
is that “it is to be noted that this is not a case where govern‐
18 No. 15‐1809
ment action has operated to bestow a badge of disloyalty or
infamy, with an attendant foreclosure from other employment
opportunity.” Id. at 705, quoting Cafeteria & Restaurant Workers
v. McElroy, 367 U.S. 886, 896 (1961), emphasis added.
The wrinkle in this case is that the plaintiff is self‐
employed. Were she employed and lost her job, then accord‐
ing to Paul v. Davis the loss might count as a deprivation of
property in violation of the Fourteenth Amendment and
thus of 42 U.S.C. § 1983. But to be self‐employed, and lose
one’s self‐employment (or a great deal of it) by being de‐
famed, is the equivalent of being fired or suffering a drastic
reduction in pay. I therefore interpret Paul v. Davis to entitle
the plaintiff in this case to prove if she can that the defama‐
tory conduct of Haskett and other defendants inflicted a
harm on her comparable to the harm she would have suf‐
fered had she been employed and lost her employment as a
result of lies about her spread by the defendants.
It’s true that in a subsequent Rehnquist opinion, Siegert v.
Gilley, 500 U.S. 226 (1991), further illustrating his fiercely
protective attitude, not readily derivable from the Constitu‐
tion, toward states’ rights, he seemed to step back from the
proposition announced in Paul v. Davis that loss of employ‐
ment (and here I add, loss of self‐employment) caused by
defamation is actionable under federal law. But he didn’t say
the Court was overruling Paul v. Davis, which remains the
leading case on harm, actionable in federal courts under fed‐
eral law, caused by defamation. We must choose between
the two decisions, and I choose Paul as the more intelligent
and civilized decision. The Court did express concern lest
“every legally cognizable injury which may have been in‐
flicted by a state official acting under ‘color of law’ estab‐
No. 15‐1809 19
lish[] a violation of the Fourteenth Amendment.” Paul v. Da‐
vis, supra, 424 U.S. at 699. But it did not say that no injury
caused by defamation is ever actionable under the amend‐
ment.
We should reverse the dismissal of the defamation claim
insofar as it alleges a drastic reduction in the plaintiff’s legal
business as a consequence of the misconduct by the defend‐
ants, and remand for a trial.