Jit Kim Lim, M.D. v. Central Dupage Hospital
871 F.2d 644
7th Cir.
1989
Check Treatment

*1 actually represent revocation did not a sub- change in

stantial circumstances. The de- purported

fendant’s just was revocation attempts

continuation of his trial to before appointment

obtain the of a fifth counsel. given unique

We believe that situation her,

facing including availability

standby continuing counsel7 and the na- requests

ture of the defendant’s for coun-

sel, judge the district err in re-

fusing appoint counsel to assist de- sentencing.

fendant at

III. above,

For all the reasons discussed we

Affirm court. district LIM, M.D., Plaintiff-Appellant,

Jit Kim HOSPITAL, al.,

CENTRAL DuPAGE et

Defendants-Appellees.

No. 88-1267.

United States Appeals, Court of

Seventh Circuit.

Argued Sept. 1988.

Decided March 1989.

Rehearing 30,1989. May Denied joined 7. The sentencing Moreover, defendant was at his defendant's conviction. the defen- hearing by Kling dant, Richard who acted shadow least three at occasions Kling for the counsel defendant. had been sentencing hearing, actually consulted with present throughout the trial and well aware Kling addressing before the court. the facts and surrounding circumstances

645 interests; property just than protects more right of things, protects it among other contracts. to make and enforce person allegations of his Sec- Lim has framed in briefs Complaint and his ond Amended rights, Court has property terms of accordingly. allegations addressed those any Lim, however, made claim not out has 1981, property on it based under § origi- in (Emphasis rights or otherwise.” nal.) brought under rights suits are civil

Most 1983, remedy to gives a tort which under col- rights federal people deprived of law, sections rather than under or of state allege a 1981, 1982, 1985; most or and property without liberty or deprivation of law, the Four in violation of process of due sec Litigation under Amendment. teenth Bolos, Ltd. Bolos, L. Michael L. Michael body rich of rise to a given has tion 1983 Ill., plaintiff-appellant. Chicago, “property” in meaning of on doctrine Brook, Hall, & Lord Bissell David C. See, e.g., Board process clause. the due of Ill., defendants-appellees. Chicago, 564, Roth, 92 S.Ct. Regents v. 408 U.S. v. (1972); Patterson 2701, 548 33 L.Ed.2d RIPPLE, POSNER, and Before Portch, 1399, Cir. KANNE, Judges. Circuit to is not available 1988). 1983 But section POSNER, Judge. Hospital Circuit is a DuPage Dr. Lim. Central the other defendants hospital and private Lim is Asian-American Dr. Jit Kim ac The defendants’ private physicians. are privileges at staff neurosurgeon whose action, or oth colorable not tions are state hospi- private DuPage Hospital, a Central Lee, v. F.2d e.g., Spencer See, 864 erwise. Claiming Illinois, revoked. in were tal Mendez v. banc); Cir.1989) (en 1376 (in his race part) to due revocation was Cir.1984). (1st Belton, 15, 18 739 42 under violated and therefore alleges racial discrimina complaint Lim’s 1985(3), 1981, 1982, and U.S.C. §§ 1982 however, and tion, sections 1981 and and mem- against hospital brought suit right to have person’s protect a expressly principal— His staff. of its medical bers race. regardless of his enjoy property and that the now, only perhaps, —claim emphatic provision more 1982 is the Section property deprived him of defendants had guarantee rights, of the score on The defendants of statutes. violation is right ... as “same citizens the ing all on the complaint to dismiss moved inherit, citizens ... enjoyed white privileges are staff ground hold, convey lease, sell, real and purchase, meaning of the within “property” But section personal property.” judge The district statutes. civil quot passage property, as the protects Focus- the action. agreed, and dismissed And, sharp con 1981, clear. makes ed earlier on section had ing parties 1983, both 1981 to section all trast provides that part in relevant private as well applicable held have been ... the same have persons “shall Mayer, Jones discrimination. public and to contracts ... make and enforce 2186, L.Ed.2d S.Ct. pro- 392 U.S. of all laws equal benefit full and McCrary, Runyon 1982); (1968) (section security persons of ceedings for the 168-72, 2593- citizens,” 96 S.Ct. 427 U.S. enjoyed white property as 1981). (section (1976) course, 49 L.Ed.2d judge “Section said: Supreme has heard against Court private public action, as well as whether to Runyon by impli overrule remember), pressure there is little for an cation Jones. See Patterson v. McLean expansive interpretation Union, Credit 108 S.Ct. 485 U.S. or related sections—which deny is not to *3 1419, (1988) 99 (ordering L.Ed.2d 879 rear- that it expansively interpreted has been in gument); cf. Runyon supra, v. McCrary, See, e.g., sections. Tillman v. Whea 187, (concur 427 U.S. at 96 S.Ct. at 2602 Ass’n, Inc., ton-Haven Recreation supra. ring opinion). But, least, for now at Jones events, At parties all agreed the have that and Runyon bind us. “property” means the in same the three The third rights civil by statute invoked Lim 1983, statutes invokes as in section Lim, 1985(3), section creates remedy a tort and go need not we behind stipulation. this (so pertinent here) for far as injuries to only question Therefore the is whether the by private caused conspiracies to complaint alleges deprivation of property infringe certain rights. federal Lim does as that word has been in understood cases 1985(3) not discuss section appeal in his interpreting process the due clause of the may brief and have abandoned his claim Fifth and Fourteenth Amendments. under that statute. Abandonment of claims is a appeal. of this leitmotif “Property” in context that is an en parties The only have cited section 1983 titlement, by which mean we a valuable cases for meaning the “property” —in right that cannot be withdrawn unless a only fact construing cases “property” in specified substantive condition comes to process (The the due clause. principal sig pass, such as a pay failure to taxes on real 1983, nificance of section so far as the property or the commission of an act that protection of property rights concerned, is constitutes cause for dismissal from em is as a vehicle enforcing clause.) for that ployment under a tenure contract or for Our own has research unearthed only a expulsion public See, from a school. e.g., few cases on the meaning of “property” in Lopez, 565, Goss 573, 419 U.S. 95 S.Ct. statutes, the other rights civil and the dis 729, 735, 42 (1975); L.Ed.2d cussion 725 Fleury in issue these cases the part Clayton, most 847 cursory. Cir.1988); See F.2d 1229 Tillman v. Whea Pat Ass’n, ton-Haven Inc., Portch, Recreation 410 terson v. supra, 853 F.2d at 1405. 431, 435-36, U.S. 93 S.Ct. 35 Both initial and appointments renewal (1973); L.Ed.2d 403 Sullivan v. Little the medical staff of Central DuPage Hospi Park, Hunting Inc., 229, 236-37, 396 U.S. tal year are for one running July from 1 404-05, S.Ct. (1969); L.Ed.2d 386 through June 30. If Lim’s staff privileges Wright Club, v. Salisbury Ltd., 632 F.2d had been terminated in the middle of his (2d Cir.1980); 314-16 Olzman v. Lake year first or of any reappointment, annual Club, Inc., Hills Swim argue, he could support with from the (2d Cir.1974); 1339-40 Pointer, Walker v. Fifth Circuit decisions in cited Psy Illinois F.Supp. 56, (N.D.Tex.1969); Ter chological Falk, Ass’n v. ry v. Elmwood Cemetery, 307 F.Supp. 369 Cir.1987), he had that been de (N.D.Ala. 1969); v. Order Sims United prived of property right. The Travellers, Commercial 343 F.Supp. 112 might well fail. We expressed skepticism (D.Mass.1972). The reason for the dearth in Falk the termination of hospital of authority plain. seems The main contro staff privileges deprivation is a of property, versy over the meaning of “property” in that, pointing were, out if it this would process the due clause concerns the extent every make right contract a property right. to rights, contractual such But no more than in Falk need we employment resolve contract, question the shall be deemed a form of case. Lim was property protect ed term; clause. Since terminated he explic is complaining itly protects right to enforce about hospital’s reappoint failure to (and, as currently interpreted, when his him current expired. term hospital, and physician and could between Lim reappoint failure deter- procedures for they create elaborate had an only if he him of deprive will of the staff a member mining whether he Whether reappointment. entitlement says reappointed. be reappoint the criteria depends on may and he procedures, follow these didn’t by-laws. hospital’s forth ment set finding no (the judge made district “pro vague: general and are criteria Those so, if he could If question). clinical competence fessional reason for not hospital’s prove ethics of patients, in the treatment that he is procedures was following those Staff at Medical conduct, attendance than, (rather as he not Caucasian participation meetings, health status *4 he alleges, because inconsistently rather the Hos affairs, compliance with his staff chiroprac- relationship with a had a referral Bylaws Medical Staff pital Bylaws a viola- tor), have demonstrated he would cooperation his Regulations, and Rules can of course 1981. One tion of section the Hos his use of personnel, Hospital with safeguards; and a procedural for contract his rela patients, his for pital’s facilities contract deprivation of racially motivated gen his practitioners, and other tions with scope sec- securely the of within rights is Hospital patients, the attitude toward eral by Runyon. Sec- interpreted tion 1981 as laun reading this one public.” No the right of protects the nonwhites tion of the a suppose that member could dry list (emphasis contracts” make “to and enforce entitlement had an medical staff hospital’s is, contract added) to them secures —that give the effect to the reappointment; to con- right to make rights as well re virtually unlimited discretion that the holds Runyon tracts —and of members. staff reappointment garding infringed by section 1981can Du- to Central appointed first Lim was as the state. party as private well a in 1976 staff Page Hospital’s medical waived, Lim, he Dr. Unfortunately for years. On subsequent reappointed in was court, district court in the both 17, 1985, with what concerned December (first argu- in the oral made the contention disproportionate post-opera- appeared to be in re- by his counsel appeal ment of the patients, among Lim’s complications tive bench) that the from sponse questions to investigation of began staff the medical him of his contrac- deprived the defendants investigation, which competence. This his complaint is It is true that rights. tual appeared, Lim hearing a at which included to it cannot be said broadly that so worded by the in a decision in March 1986 resulted it It is true that the contention. exclude of hospital’s board by the staff—affirmed men- in turn mentions 1986, following a August on directors But section rights. tions contract reappoint Dr. hearing second —not complaint the property, also mentions begin- (i.e., year following year for the the defen- rights, and stresses reap- 1, 1986). he not And was ning July wrongly) read the (whether rightly or dants not hospital could if the So even pointed. property rights— limited to complaint as appointment Lim’s have rescinded ground. that to dismiss it and moved if, ending on 1986—even year June Lim, preserve his point order At this words, he had an entitlement in other deprived of he had been that claim employee year, like an much serve out response to in his rights, should contract employment contract— one-year under a have stated to dismiss the motion of such an entitle- deprivation no there was a deprived of not he had been or whether until not terminated he ment was because de- certainly had been he property right, to have he can claim 30. All after June right. This he a contract prived of had to be he never entitlement lost is an too that he had responded he do. Instead year. reappointed year after This rights. of deprived been impression may response created form of True, Lim’s contract inter- defendants’ agreed he with the forth bylaws set violated. have been complaint. scope of relationship pretation of of the the terms contractual So, naturally, the district court questions also read revive an ground abandoned for complaint deprivation limited to See, e.g., reversal. Heil v. Morrison (the property rights “or con- otherwise” Corp., (7th Knudsen cluding passage quoted earlier from Cir.1988) Hornick, United States v. the district opinion court’s was throwa- F.2d Cir.1987); Bonds v. way) analyzed accordingly. the case Co., Coca-Cola Cir.1986). The ground was

Until oral in this court—which by being waived abandoned and the (or proper was too late advancing new what is ty ground properly rejected. was the same thing, reviving abandoned) The dis missal grounds suit is reversal—Lim therefore acquiesced in the district interpretation court’s of his AFFIRMED. case. opening His and reply briefs this argue only court that he deprived RIPPLE, Judge, Circuit dissenting. property rights. The sole reference to con I would reverse the of the dis- tract is as a source of property rights. trict court and remand the case for further Property rights normally do arise out of proceedings. my view, In complaint *5 contract, every but not contract creates a adequately alleges racially based interfer- property right. Psychological Illinois ence with the contract rights of appel- Falk, Ass’n v. supra, 1344; 818 F.2d at lant. I do not believe that say we can Brienen, Brown 722 F.2d the claim was waived in the district court. (7th Cir.1983). In particular, a contract Nor do I read the appellant’s brief as waiv- right merely specified procedures—the ing question Therefore, court. only right that Lim possessed appli as an under the stands, law as it now appel- cant for reappointment to the medical staff lant has a to progress beyond the after his one-year current appointment was pleadings and, initial view, in my it was up not a right in the constitu —is error for the district court to cut off the tional sense. See Racine, Archie v. City of litigation so summarily. 1211, 1217(7th Cir.1988)(en banc), there; and cases cited cited in cases Jurich, Shango v. Cir.1982). True, many of the cases cited opinions, two itself, like Shango in liberty

volve rather property; than but

some are property cases, Archie, as was

and the principles are the same in both types of true, case. And none of these is a G. CO., HEILEMAN INC., case; BREWING all are cases where a state Plaintiff-Appellee, statute, ordinance, or regu administrative lation had procedural a created right. But we cannot see what difference it makes CORPORATION, JOSEPH OAT whether procedural right is Defendant-Appellant. statute, a ordinance, regulation, or other public enactment; No. 86-3118. a contract between a public agency plaintiff; or, here, United States Court Appeals, by private contract. Contracts can create Seventh Circuit. property rights, but a contract that creates merely right procedure Argued does not May 20, create 1987. a property right within the meaning Rehearing En Sept. Banc 1988. process due clause. Decided March 1989. Having staked his all on showing that he deprived of property in sense, cannot be allowed reverse field at oral agile and in response to our