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.