Dr. Milton Margoles v. Dr. Thomas W. Tormey, Jr. And Leroy L. Dalton

license, physician’s licenses other CUDAHY, Before SPRECHER and Cir suspended by were revoked or states also SPEARS, District Judges, cuit Senior was released from those states. Plaintiff Judge.* 15, 1962. prison parole September on parole expired September, His term SPRECHER, Judge. Circuit prison, release from presents question Following plaintiff’s appeal This an unsuccessful cam- of one state have vio- commenced whether officials * 448.18(2) (1977). Spears, also is accom- Senior District Relicensure Honorable Adrian A. Texas, court, only upon Judge plished is but for the Western District of the circuit sitting by designation. of the Board. Wis. written recommendation 448.18(4) (1977). Stat. § Wisconsin, medical licenses 1. In revocation of performed by Wis.Stat. is the circuit court.

paign regain his Wisconsin medical of the Board. Defendant Dalton was em- hearings license. Formal were held in 1965 ployed since 1955 attorney as an assistant and 1969 the Wisconsin Board of general State for the State Wisconsin. Dalton plaintiff’s applica Medical Examiners on June, acted as counsel to the Board from relicensure, resulting tions through both in rec 1970. The Board responsi- is plaintiff ommendations the Board that licensing ble physicians for in Wisconsin. It be denied relicensure. The latter denial of regularly corresponds also with licensing upheld by licensure was the Wisconsin Su regarding authorities other states either preme Margoles v. applicants Court. State Board of before the Board or applicants Examiners, Medical 47 Wis.2d 177 seeking licensure in another state who have (1970). N.W.2d 353 sought, Plaintiff also some connection to Wisconsin Board. the. results,2 with mixed licensure in other This suit correspondence by concerns states, including Illinois. by Tormey Board or licensing Illinois during plaintiff authorities the time was plaintiff’s attempts This suit concerns seeking licensure in Illinois. 1964-65 gain and in 1969 licensure in .to case, originally Illinois. This filed on pre-trial June In a order entered on December 11,1970, route,3 17, 1979, has taken a Judge tortuous culmi- plaintiff Crabb ruled that nating December, in a day jury five trial in would be entitled to relief under 42 U.S.C. Judge “defendants, 1979 before Crabb of the proved United 1983 if he acting law, States District Court for the Western Dis- acting under color of state from malice, trict of will, vindictiveness, Wisconsin. The defendants before motives ill or us now are Dr. Thomas Tormey, prevented W. Jr. and attempted prevent him Dalton, LeRoy individually L. and in pursuing profession.” their from No. 70-C- capacities. official Tormey served Mem.Op. Judge as a Crabb reasoned “ Secretary member and of the Board from that ‘liberty’ interest would July, through 1953 July, and from seem encompass having a fair chance to July 1965 through July, 1973. He was em- apply, pursue, compete ployed by the Secretary opportunities intentional, Board as Executive without malicious July, from through July, 1963 1965. interference by Mem.Op. state officials.” Throughout period, Tormey was re- at 3-4. Judge But Crabb warned that sponsible handling correspondence plaintiff prove would have to “defendants’ unclear, ap- maining grounds qualified The record is somewhat but it defendants on the pears plaintiff granted immunity. Margoles has been licenses in official v. State Board of California, Columbia, Indiana, Examiners, (W.D.Wis. the District of F.Supp. Medical Michigan, Jersey 1978). New and Vermont. After the filing original complaint court, appeal this suit in On to this we reversed the 1970, plaintiff granted a license grant summary judgment qualified based on But, State of Illinois. the current status of that immunity. We held that there were triable apparently license is contested as a result of concerning good issues of fact the defendants’ proceeding. events unrelated to this summary faith. We also affirmed the award of judgment as to the other defendants and the originally against 3. This suit was in four counts Ross, Margoles other counts. v. F.2d numerous defendants who were members (7th, Unpublished 1978). Order 25, 1975, July connected with the Board. On finally When the case went to trial it involved Judge case, Morgan, presiding then over this Dalton, defendant, Tormey, and a third Donald granted summary judgment in favor of all de Pressentin. Pressentin earlier been dis- two, three, fendants as to counts and four. summary judg- missed on the basis of the first one, respect Judge Morgan With to count decision, ment but At the later was reinstated. granted summary judgment to all defendants case, grant- close of the district court except here, the defendants Dr. Thomas W. ed a directed verdict in favor of Pressentin. Tormey, LeRoy Margoles Jr. and L. Dalton. v. propriety Plaintiff does not contest the of that Ross, (W.D.Wis.1975). 67 F.R.D. 666 action. 23, 1978, Subsequently, February Judge Morgan granted summary judgment to the re- letter, plaintiff presented to the in or distortion of Illinois au- active involvement copy the other states. thorities a certified of a statement licensing procedures” of stating correctly from the Clerk Court Mem.Op. at 4. charges plaintiff of which had been case, finally presented to Plaintiff’s convicted. in 1964 jury, only incidents concerned following involved an After the denial of licensure 1969. The 1964 matter events, again peti- Tormey on behalf the 1964-65 letter sent unsolicited of Illinois for li- Illinois author- tioned the Medical Board of the Board to the Hearings September, were held in plain- about censure. requesting ities information hearings, attempts Shortly licensed in Illinois. before tiff’s to be with Tormey and his son met incorrectly The letter stated attempting Tormey’s to bribe a medical office discuss issue had been convicted when, fact, plaintiff given to the judge, plaintiff had been of an affidavit had meeting, Tormey At this acquitted charge of that and had been con- Board in 1967.4 to, did, agreed charge attempting the of to and execute a letter dated victed of lesser 19,1969 September and to to the Medical Board influence an officer of the court of alia, Board, justice. According plaintiff, stating, to Illinois inter the obstruct plaintiff, appeared suggested plain- when he before the Illinois licens- not had first board, promising prac- confronted file the ing the board’s chairman tiff affidavit not Tormey’s with letter and accused tice in Wisconsin if a Wisconsin license plaintiff plaintiff lying purposes to the Illinois authorities were issued and used for of secur- disclosing attempt- ing Tormey gave conviction for an by not Illinois license. the plaintiff plaintiff’s that this in- letter to for use in the bribery. ed Plaintiff contends severely prejudiced plaintiff’s following hearings. cident credi- week’s Illinois bility the Illinois authorities and was before held, hearings Before those were how- instrumental in denial of licensure. ever, Tormey reconsidered his statement re- garding they origin

Plaintiff and his son testified that the of the idea and affidavit that, fact, Tormey prior plaintiff, had met with some time concluded not the Board, requested responsible the date of this letter and the had for affidavit was Dalton, Tormey stop stating plaintiff Tormey legal had idea. consulted with Board, attempted bribery. regarding proper been convicted of Tor- counsel to the mey way correcting testified that the mistake was inadver- the error contained in the appre- Tormey Tormey tent —that he not first and Dalton did understand letter. legal attempt agreed ciate the distinction between that a second letter to the Illinois judge attempt correctly stating Tormey’s to bribe a to influence authorities view jus- an incident was officer of and to obstruct of the affidavit neces- court that, testimony sary.5 tice. There after Consequently, Tormey prepared also was a being Tormey’s stating inaccurate letter confronted with second that the affidavit idea plaintiff preparing 4. The affidavit stated that if were 5. Dalton’s role in this letter is the license, granted primary any alleged “the link a Wisconsin medical same between Dalton and merely purpose securing plaintiff’s rights. will be for the constitutional used medicine, practice testimony regarding and will was con- an Illinois license to Dalton’s role But, tradictory hotly voluntarily disputed. be surrendered.” because of disposition legal ques- our of this case on the Although origin proposal included presented, or decide tions we need not discuss hotly disputed, in the was and still is affidavit specifics of Dalton’s role. We assume for Board based its 1967 recommendation actively purposes opinion of this that Dalton upon large part licensure denial in the unethical Tormey preparation assisted in the of a second propounded by nature of the idea the affidavit. letter. subsequently The Illinois authorities became equally propriety about the of this concerned affidavit. originated plaintiff with plaintiff’s attor- II ney.6 letter, This dated September urges upon Plaintiff legal this Court the directly was sent to the Medical Board theory of the district pretrial court’s or- copy Illinois. Plaintiff never received a plaintiff “liberty” der —that has a interest of the letter and was never informed of the “having apply, pursue, fair chance to by Tormey corrections made until confront- compete opportunities ed with letter the Illinois authorities intentional, without malicious interference after had tendered the first Tor- by state Mem.Op. officials.” at 3-4. Plain- mey again letter. Plaintiff claims that his accepts tiff also the district court’s reason- credibility before the Illinois authorities ing that prevail on this severely prejudiced was again that he theory prove he must “defendants’ active was denied an large part Illinois license in involvement in or licensing distortion of the because of this incident. procedures” Mem.Op. Illinois. regard case, With to the facts of plain- The case was jury submitted to the with argues tiff Tormey and Dalton violat- special interrogatories. seven Interrogato- plaintiff’s ed rights constitutional by inten- ries 1 and 2 Tormey asked whether tionally supplying damaging, false informa- violated right constitutional tion to the Illinois authorities. hearing obtain a fair by sending in Illinois Plaintiff asserts that the information de- misstating plaintiff’s 1964 letter convic- nied hearing a fair in Illinois and tions, and, so, Tormey if whether acted in instrumental in the denial of bad faith or without a reasonable belief application for licensure. that his act was jury constitutional. The We acknowledge plaintiff that pro- has a concluded that the 1964 letter did not vio- liberty tected in pursuing pro- interest his and, late plaintiff’s rights consequently, did cannot, fession and that Illinois on an arbi- question not reach the Tormey’s good trary basis, procedurally or prohibit unfair faith. practicing him from profession. his See Interrogatories through 7 asked wheth- Character, Willner v. Committee on letter, the sending er second 1969 96, 102, 1175, 1179, U.S. 83 S.Ct. 10 L.Ed.2d plaintiff’s right violated to obtain a fair (1963); Schware v. Board of Bar Exam- hearing, whether participated Dalton in the iners, 232, 238-39, U.S. 77 S.Ct. letter, drafting of this and whether Dalton 755-56, 1 (1957). L.Ed.2d 796 Consequent- Tormey acted in bad faith or without a ly, plaintiff defendants, if can establish that reasonable belief that his act was constitu- law, under the color of have interfered with jury tional. The interrog- answered all five right protected that and by quali- are not affirmative, atories in the concluding that immunity, fied he has established a claim plaintiff’s rights had beén violated. cognizable under 42 U.S.C. 10, 1980, On January Judge Crabb issued plaintiff To determine whether has estab- Opinion an and granting Order defendants’ any deprivation, lished of his constitutional motion for notwithstanding the rights, analyze we must carefully the exact respect verdict with to the 1969 incident. right alleged nature of the asserted and the Judge Crabb reasoned that evi- right by interference with that defendants. prerequisites dence failed to establish theory constitutional set forth in the A order, that, pretrial law, and as a matter of theory that constitutional First, was erroneous. allegation there is no that the appealed Plaintiff to this Court. plaintiff Illinois authorities denied a fair Tormey personal opinion also offered his intent to deceive the Board. plaintiff any had offered the affidavit without provided allegedly informa- fendants false for licensure. hearing application responsible tion to the Illinois authorities evidence es- uncontradicted Abundant and hearing with a fair providing plaintiff for exten- was afforded plaintiff tablished licensure. It would heard, application on his for present opportunities to be sive significantly different case if there evidence, be documentary witnesses collusion, conspiracy, were some evidence of The record decision.7 appeal any adverse agreement government offi- between met, repeatedly either plaintiff shows that Lacking such evidence in cials involved.8 with the Illinois li- formally informally, case, plaintiff must conclude that we authorities, discussing plain- censing often depri- any failed to establish constitutional origin or the tiff’s criminal convictions as a of defendants’ limited vation result Even assum- the 1967affidavit. nature of proceedings. involvement in the Illinois provided authorities ing the Wisconsin false information authorities with Illinois plaintiff, it is clear that

about C plaintiff opportu- a full granted authorities remaining is whether issue addition, plaintiff does nity to refute it. In any has established a denial of constitution- Illinois the refusal of the not contend that protected liberty by proof interest ally medical license grant him a authorities knowingly and mali- defendant officials Consequently, arbitrary was or erroneous. ciously supplied damaging false information there was no foreclosure we hold that about to the authorities of another plaintiff’s rights any Illinois authorities of entity considering government procedural process. due plaintiff’s application professional licen- question has

sure.9 The is whether B established a claim for protected liberty merely interest or has theory plain possible The second claim for stated a traditional common-law active is that defendants took such an tiff manner, plain- in this defamation. Stated their proceedings in the Illinois role cases clearly tiff’s case falls in line with the unconstitutionally with actions interfered Roth, Regents v. developing from Board of hearing right to obtain a fair 564, 2701, 33 L.Ed.2d 548 408 U.S. 92 S.Ct. authorities. before 693, Davis, 96 (1972), v. 424 U.S. and Paul But, agree portion of the we with that 1155, (1976). 405 47 L.Ed.2d S.Ct. holding opinion district court’s Roth, in prove although Supreme to defendants’ active Court did had failed In the any of the Illinois find violation volvement in or distortion not that there had been simply rights,10 not proceedings. The record does constitutional terms, forth, the dr- general than that the de- set in anything establish more Court either denial of licen- 9. We assume purposes appeal of this discussion 7. Plaintiff did not maliciously by or in bad faith that defendants did Board of Illinois. sure the Medical provide plaintiff to the about false information But, there are Illinois authorities. we believe unnecessary inappropri- 8. We believe it is plaintiff, very questions in serious whether ques- ate for this to resolve the difficult Court fact, falsity prove maliciousness. did either or be tion of whether a claim could established showing under 42 1983 a that an § U.S.C. Roth, 564, Regents 408 10. In Board of v. U.S. entity government one or took official of state 2701, (1972), the Su- L.Ed.2d 548 92 S.Ct. 33 proceedings in such an active role preme to rehire that a state’s refusal Court held collusion, entity, second state short of con- or provid- faculty member without a nontenured ing spiracy, agreement, or that the official could be explanation hearing him with a or an guilty denying his constitution- an individual Roth, permissible. In the termi- reasons was right hearing a before the second al entity. to fair property faculty interest nated member had no simply The facts of this case do not expiration in continued at require weighty question, us to reach officials, contract, one-year state his refusing and the day. we reserve it for another “imposed plaintiff, had not to re-hire 1298 line defamatory

cumstances where statements of cases does not propo- establish the by public may implicate protected alone, officials reputation apart sition that from liberty The set forth the interests. Court tangible some more interests such as em- “stigma plus” rudiments of the test—that ployment, “liberty” “proper- is either or where, terminating process in the or ty” by pro- itself sufficient to invoke the official, refusing public a rehire the state protection cedural of the Due Process against “any charge might makes him that Clause. seriously damage standing and associa- 701, 424 U.S. at 96 S.Ct. 573, community.” tions in the 408 U.S. at applied “stigma plus” This Court has 2707, process requires 92 at due S.Ct. test of Roth and Paul v. Davis in two recent opportunity the individual afforded an be Walker, decisions. v. Colaizzi F.2d 969 charge. Charges might refute the im- (7th denied, 1976), 960, Cir. cert. 430 U.S. name, plicate person’s “good reputation, a (1977); S.Ct. L.Ed.2d Elbert v. honor, integrity” charges would include Ed., (7th 1980), Board of 630 F.2d 509 guilty such as “that he had been of dishon- filed, (Feb. 4, 1981). cert. No. 80-1312 esty, immorality.” Id. Colaizzi, plaintiffs the court held that scope “stigma The and limitations of the they stated a claim under 1983 where § Davis, plus” test were clarified in Paul v. alleged that in connection with their dis 424 U.S. 47 L.Ed.2d 405 S.Ct. employment, from missals state state offi (1976).11 question The presented to the defamatory public cials made statements Court was whether the officials’ defamation charging plaintiffs reprehensible with con plaintiff, “standing apart alone and from duct. The court read Paul v. Davis to mean any governmental respect other action with “stigma reputation, to one’s inflicted him, stated a claim for relief under 42 state, deprivation is not of itself a U.S.C. 1983 and the Fourteenth Amend- liberty within meaning of the Four ment.” 424 at U.S. 96 S.Ct. at 1157. teenth Amendment.” 542 F.2d at 973. damage The Court concluded that to one’s But, the court reasoned that: alone, reputation though even inflicted stigma reputation (net depriva- itself a officials,

public implicate pro- failed to liberty tion of as defined in the Four- liberty tected interest. The Court stated: Amendment) teenth plus failure to rehire “liberty” “property” words (not discharge necessarily involving used in the Fourteenth do Amendment property as defined single reputation not in out terms as a Amendment) may Fourteenth neverthe- special protection candidate for over and conjunction less when found state a may above other pro- interests that be claim depriva- under 42 U.S.C. 1983for § by tected state law. While we have in a liberty tion of a Fourteenth Amendment prior pointed number of our cases out the process. interest without due frequently “stigma” drastic effect of the may by (emphasis original).

which result from defamation Id. there the Since contexts, government variety stigma in a plus discharge by the state authori- for, stigma disability of, on him a or other fore- tiff that had been arrested but not convicted advantage shoplifting. charge giving closed his freedom to take employment opportunities.” of other After the rise to his dismissed, flyer 408 U.S. at inclusion on had the been at plaintiff brought against S.Ct. a 1983 action the chiefs, police alleging rep- that the stain on his Davis, 11. In Paul v. 424 U.S. 96 S.Ct. resulting the circulation of the utation from (1976), photograph 47 L.Ed.2d 405 a of the flyer deprived liberty him of without due name, plaintiff, bearing his was included on a process Supreme The Court held that law. printed flyer shoplifters” of so-called “active deprivation any he failed to state a claim by police and was circulated Louisville, Kentucky two chiefs of liberty constitutionally protected interest. during merchants the fact, shopping plain- Christmas season. the with the licensure in Illi- had stated a tion” denials of ties, plaintiffs we held The and the Illi- nois. Illinois authorities protected liberty claim for separate nois denials of licensure were interest. defamatory any distinct from statements Ed., v. Board of Finally, in Elbert officials. by made these Wisconsin 1980), (7th the court refused F.2d claim is reduced Consequently, plaintiff’s had been “stigma plus” test find that the allegation these defendants made to an where, although defamatory a satisfied defamatory statements about by school board had been made statement But, as authorities. public with the an- in connection officials Supreme in Paul v. Davis and this Court ter- that the would be nouncement held, defamatory in Elbert statements court school the conclusion of the minated at officials, alone, are in public standing and was plaintiff later was rehired year, sufficient to state a claim under § reasoned that The court never terminated. not, again 1983 is acknowledge We that “§ occurred, ever no loss of since become, general not a federal and should accompanied by the was not the defamation Elbert, tort law.” 630 F.2d at 513. government employment, requisite loss of a grant judgment to de district court’s plain- Consequently, right, privilege. notwithstanding fendants the verdict was nothing more te.12 allegations constituted tiff’s appropria commonlaw defamation than a claim of And, the court stated that state officials. Ill a state offi- “[djefamatory publications by reasons, foregoing For the cial, seriously they may harm however is below someone, person any deprive not do AFFIRMED. proc- the due liberty protected interests 512, citing Paul v. clause.” 630 F.2d at ess CUDAHY, Judge, concurring: Circuit Davis, at 96 S.Ct. 424 U.S. result reasoning I concur in the opinion except to the extent majority “stigma apply We must now “collusion, conspir- may suggest that it plus” developed in this line of cases test agreement government acy, or between this case. Even if we as to the facts of requisite would be to a officials involved” “stigma” proved has a sume based on an successful 1983 claim Section correspondence as a result of defendants’ hearing. “interstate” of a fair denial incorrectly with Illinois authorities charac in several states Where numerous officials terizing plaintiff’s criminal convictions joint into pursuing virtually inquiry are a falsely accusing plaintiff originating professional qual- questions the same idea, “stigma plus” test is not affidavit individual, state particular ifications of a prove that satisfied. Plaintiff has failed to provide a shield boundaries need not any were connected with these defendants liability. tort The in- against constitutional government privilege, a benefit or denial of essentially for lack of evi- stant case fails stig between i. e. licensure. The affiliation dence. government benefit is ma and denial of Although may actions

absent. defendants’ plaintiff’s reputa- imposed stigma

have

tion, fails to establish that plaintiff’s claim conjunc- defamation was “in

defendants’ merits, parties presented and our conclusion that is- this case on its 12. Both have additional instructions, jury discovery regarding a claim under 42 U.S.C. is- does not have sues sues, qualified immunity, application no reason for this Court there is § address these issues. given judicata to state court the res effect to be light determinations. of our discussion

Case Details

Case Name: Dr. Milton Margoles v. Dr. Thomas W. Tormey, Jr. And Leroy L. Dalton

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 18, 1981

Citation: 643 F.2d 1292

Docket Number: 80-1176

Court Abbreviation: 7th Cir.