Sherwin Manor Nursing Center, Inc. v. McAuliffe
Opinion of the Court
Sherwin Manor Nursing Center, Inc. (Sherwin), alleges that Illinois state licensing officials falsely cited the facility and discriminated against it because Sherwin’s owners are Jewish. It contends that the officials’ actions denied Sherwin both the equal protection of the laws in violation of the Fourteenth Amendment and interfered with its right to the free exercise of religion in violation of the First Amendment. The district court dismissed Sherwin’s § 1983 complaint for failure to state a claim. We reverse.
I.
Sherwin is a licensed long-term nursing care facility, owned and operated by orthodox Jews and serving a primarily Jewish clientele. Historically, Sherwin had always garnered high marks in the annual licensure and certification survey by the Illinois Department of Public Health (Department). In December 1991, however, the defendants— six surveyors from the Department — purported to find multiple violations based on a two-week survey of the facility. The defendants then compiled a 124-page report, most of which included, Sherwin claims, “false, fabricated and meritless findings.” Complaint ¶ 34. According to Sherwin, the defendants erroneously found that Sherwin’s facility lacked no-smoking signs, that its records were unavailable, that it lacked a quality assurance program, that its facility was “thick” with soil and smelled of urine, that the menu did not provide a varied diet because it did not include pork and that residents were not given a program of activities. The report noted 28 federal violations and at least 40 state violations. The submission of the allegedly biased survey immediately triggered the initiation of federal decertification proceedings.
Sherwin contends that the findings were based not on fact but on the surveyors’ religious prejudice. Sherwin alleges, as evidence of the defendants’ anti-Semitic animus, that the defendants made the following insulting and offensive statements:
“They are Jews, you can’t trust them.” “She’s a Jew and a liar — you can’t trust her.”
“These Jews, they hire Pollacks who can’t read or speak English.”
“These Jews, they don’t tell anyone they have a Kosher kitchen.”
“They are terrible, vicious, rotten people.”
At the conclusion of the survey, Sherwin and its attorneys met with the supervising representatives of the Department and presented taped, documentary and photographic evidence establishing that most of the defendants’ findings were erroneous.
On October 2, 1992, Sherwin filed a two-count complaint under 42 U.S.C. § 1983 and § 1985(3) seeking, on each count, actual damages, punitive damages, costs and attorneys’ fees. Sherwin based these claims on theories of due process, equal protection, free exercise and conspiracy. The district court on March 31, 1993, dismissed the complaint un
Sherwin then moved under Rule 59(e) to amend the order dismissing the complaint, asking the district court to reconsider the equal protection and free exercise claims. The court denied the motion, underscoring again the absence of an injury of constitutional magnitude. The court also concluded that Sherwin had not shown that it was treated differently than other similarly situated facilities since violations lodged against nursing homes were automatically reviewed by the Department and this review provided all with a level playing field.
Sherwin, in its appeal of the district court’s dismissal, has discarded its due process theories and instead relies upon the equal protection, free exercise and § 1985(3) conspiracy claims.
II.
We review the grant of a motion to dismiss de novo, accepting “the truth of all well-pleaded allegations and making all possible inferences in favor of the plaintiff.” Wroblewski v. City of Washburn, 965 F.2d 452, 453 (7th Cir. 1992) (quoting Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir. 1991)). Dismissal is not warranted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Further, a court may not, in cases under § 1983, apply a pleading standard that is more stringent than the notice pleading required by the Federal Rules. Leatherman v. Tarrant County Narcotics Unit, — U.S. -, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).
A. Deprivation of Constitutional Magnitude
The crux of the district court’s analysis under each of the three theories before us on appeal is that Sherwin’s claims failed to demonstrate injuries of “constitutional magnitude.” Without such an injury, the court reasoned, Sherwin could not recover attorneys’ fees as compensatory damages. See Reichenberger, 660 F.2d at 285 (“legal fees expended by the plaintiffs in the administrative proceedings cannot qualify as a constitutional injury absent a showing of deprivation of constitutional magnitude”). As indicated, the district court purported to base its reasoning on our decisions in Easter House and Reichenberger. In Easter House, a private adoption agency brought a § 1983 action against a former employee and officials of a state licensing agency, alleging a conspiracy to deprive it of its operating license. Easter House’s only alleged injuries were the cost of answering the questions of the licensing agency and of making files available to it. Easter House, 910 F.2d at 1407. We concluded that neither of these “injuries” rose to the level of a procedural due process deprivation, holding that a party cannot maintain a § 1983 action for denial of procedural due process if the alleged violations are eommit-
In Reichenberger the plaintiffs owned nightclubs that featured nude dancing, and the defendants, a minister and a member of the Common Council, allegedly conspired to eliminate the nude dancing. The complaint asserted that the defendants attempted to interfere in various municipal administrative proceedings in order to revoke the plaintiffs’ liquor licenses or to make the cost of renewing the licenses prohibitively expensive. Id. at 282. As a result, the plaintiffs alleged both an abridgment of their free speech rights and a procedural due process claim— in that they were deprived of a property interest without due process.
By dismissing the complaint because Sherwin never lost its license or certification and because Sherwin took advantage of a post-survey remedy, the district court, it appears, mistakenly blurred the distinction between procedural due process injuries and other constitutional injuries. The Fourteenth Amendment prohibits the states from depriving “any person of life, liberty, or property, without due process of law.” A procedural due process claim necessitates “a property deprivation of constitutional magnitude” and, of course, one effected without due process. Easter House, 910 F.2d at 1407. In comparison with other constitutional claims such as equal protection or free exercise, a cognizable procedural due process claim does not typically arise until the proceedings are at a mature stage and due process has not been furnished, even though a tangible deprivation has occurred.
By contrast, simply because they are not “procedural due process” injuries, other constitutional harms may arise no matter how much process is afforded. For example, an equal protection cause of action accrues whenever a state “den[ies] to any person within its jurisdiction the equal protection of the laws.” U.S. Const.Amend. XIV, § 1. To state an equal protection claim, a § 1983 plaintiff must allege that a state actor purposefully discriminated against him because of his identification with a particular (presumably historically disadvantaged) group. See Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir. 1982); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). As this court observed recently in Triad Associates, Inc. v. Robinson, “governmental disregard of the fundamental dictate of equal treatment is the beginning and end of the equal protection inquiry.” 10 F.3d 492, 500 (7th Cir. 1993).
The Ninth Circuit, in Flores v. Pierce, 617 F.2d 1386 (9th Cir. 1980), cert. denied, 449 U.S. 875,101 S.Ct. 218, 66 L.Ed.2d 96 (1980), reached a similar conclusion. In Flores, two Mexican-Americans attempted to open a restaurant and bar in a town that they antieipat-ed would cater in large part to Mexican-Americans. They applied for á liquor license to the Department of Alcoholic Beverage Control of the State of California (ABC), prompting an official protest from the town’s police chief, mayor and city council. Id. at 1388. Under California law at that time, when a city chose to protest a liquor license application, that protest operated to block issuance.of the license until a hearing was held. The Floreses’ license was initially denied but was later granted by the ABC Appeals Board. The Floreses then brought suit for damages under 42 U.S.C. § 1983. The court found that the defendants violated the Floreses’ equal protection rights by discriminating against them on the basis of race or national origin. Id. at 1390.
Like Sherwin, the plaintiffs in Flores were ultimately made whole: the Floreses in the end received the liquor license. Nonetheless, the Ninth Circuit held that there had been a sufficient allegation of injury:
The violation here consisted not in the ABC’s initial denial of the license, but in the policy of the city officials to force the applicants to undertake extraordinary measures for its issuance. If the rigors of the governmental or administrative process are imposed upon certain persons with an intent to burden, hinder, or punish them by reason of their race or national origin, then this imposition constitutes a denial of equal protection, notwithstanding the right of the affected persons to secure the benefits they seek by pursuing further legal procedures.
B. Damages
Since, unlike the district court, we conclude that Sherwin adequately alleged a constitutional injury in the denial of equal protection, Sherwin presumably has a right to recover its legal fees, should it prevail. This result is consonant with our holding in Kerr v. City of Chicago, 424 F.2d 1134, 1141 (7th Cir. 1970):
A plaintiff in a civil rights action should be allowed to recover the attorneys’ fees in a state criminal action where the expenditure is a foreseeable result of the acts of the defendant.
We, of course, need not decide here whether Sherwin was forced to take extraordinary measures and thus incur attorneys’ fees; that question is one for the finder of fact.
III.
Just as the lack of constitutional injury has been erroneously applied to the equal protection claim, this erroneous application may not negate a proper free exercise or § 1985(3) conspiracy claim.
REVERSED.
. Except for the photographs, the evidence presented to the Department's representatives had already been presented to the defendants during the survey and at the "exit conference” at the end of the survey period.
. In finding that Sherwin defended itself before Quality Assurance, the district court failed to take the well-pleaded allegations of Sherwin's complaint as true. The complaint alleges that Sherwin communicated and met with supervising representatives of IDPH, not that they responded to the survey in writing as allowed for appeals to Quality Assurance. Compare Complaint ¶ 39 with id. ¶21.
. The plaintiffs also alleged a § 1985 violation, which prohibits “conspiracies” to interfere with the exercise of constitutional rights. The court’s conclusion that the plaintiffs suffered no constitutional injury applied equally to the claims brought under § 1983 and § 1985.
. This requirement is simply another way of stating the requirement for standing in federal court that the plaintiff has suffered an "injury in fact.” See Lujan v. Defenders of Wildlife,-U.S.-, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (to establish standing, plaintiff must have suffered invasion of a legally-protected interest which is concrete and particularized and which is actual or imminent rather than hypothetical).
.The Supreme Court has addressed the related question of when a cause of action accrues in the context of employment discrimination. In Delaware State College v. Rides, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), the Court attempted to identify the time
In contrast to Ricks and Chardon, the accrual analysis is altogether different when the violation is predicated upon a procedural due process claim. In a case recently decided by this court, Lawshe v. Simpson, 16 F.3d 1475 (7th Cir. 1994), we held that a claim for deprivation of public employment without due process accrues on the actual termination of employment and not on the date on which the plaintiff is notified of the termination. Id. at 1480. In Lawshe as in Rei-chenberger and Easter House, the unconstitutional act was the deprivation, without procedural due process, of a property interest: the continuation of one's job or business. In Ricks and Chardon, as in the instant case, the unconstitutional act was the discriminatory act itself.
. We note, however, that the Flores court affirmed a $48,500 damage award for the plaintiffs that included a calculation for "additional attorneys' fees.” Flores, 617 F.2d at 1392. The costs were "additional” because they were incurred in the effort "to undertake extraordinary measures” for the issuance of the license against the opposition of the state officials.
. Both claims arise no matter how much process is afforded and thus they are complete without respect to the availability of due process.
Reference
- Full Case Name
- SHERWIN MANOR NURSING CENTER, INC. v. Judith McAULIFFE Charles DeCuirre Yolanda Pepper JoAnn Serpico Fay Chin and Patricia Best
- Cited By
- 16 cases
- Status
- Published