UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

DR. IRFAN ATCHA, D.D.S. P.C. )

d/b/a DYER FAMILY, et al., )

)

 Plaintiffs, )

)

 v. ) CIVIL NO. 2:15cv110

)

STATE OF INDIANA, et al., )

)

 Defendants. )

OPINION AND ORDER

This matter is before the court on two motions to dismiss. First, the State Defendants1

filed a motion to dismiss on June 30, 2015. The Plaintiff, Dr. Irfan Atcha (“Atcha”), who is

suing the defendants individually and as the Dyer Family Dentistry, Inc., filed his response on

July 31, 2015, to which the State Defendants replied on August 17, 2015. Second, Defendant Dr.

Rajan Sharma (“Sharma”) filed a motion to dismiss on July 6, 2015. Atcha responded to the

motion on August 5, 2015, to which Sharma replied on August 12, 2015.

For the following reasons, both motions to dismiss will be granted.

Discussion

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of a complaint. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 – 879 n.4 (7th

Cir. 2012). In particular, a Rule 12(b)(6) motion inquires as to whether a complaint has set forth

 The State Defendants are: State of Indiana, the Indiana Professional Licensing Agency,

1

the Indiana State Board of Dentistry, Steven Hollar, Matthew Miller, Richard Newton, Mark

Stetzel, Jennifer Bartek, Clance LaTurner, and Cindy Vaught. Hollar, Miller, Newton, Stetzel,

Bartek and LaTurner, who are all sued individually, are members of the Indiana State Board of

Dentistry. Vaught, who is sued in both her individual and official capacities, is the Director of

the Indiana State Board of Dentistry.
a “viable cause of action upon which relief can be granted.” Rangel v. Reynolds, 607 F. Supp. 2d

911, 917 (N.D. Ind. 2009); FED. R. CIV. PRO. 12(b)(6). To properly assess dismissal under Rule

12(b)(6), a court must accept all well-pleaded, factual allegations as true and view them in a light

most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 -680 (2009); Killingsworth v.

HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). However, a court need not accept legal

conclusions couched as factual assertions. Iqbal, 556 U.S. at 679. Instead a complaint must

contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Iqbal, 556 U.S. 662 at 663 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

In March 2012, an administrative complaint was filed against Atcha, alleging multiple

advertising violations. (Complaint ¶ 28.) In November 2013, the Indiana State Board of Dentistry

(“ISBD”) found Atcha in violation of several of these advertising regulations and placed him on

probation. (Complaint ¶ 30-34). Atcha subsequently filed a petition for judicial review, in Marion

County, under Cause No. 49D03-1312-MI-044739, against the Indiana Professional Licensing

Agency (“IPLA”) and the ISBD, challenging the Board’s November 2013 Order. On December

31, 2014, Marion County Superior Court 3 reversed the Board’s November 2013 Order, setting it

aside as contrary to a constitutional right, in that some advertising regulations did not meet

constitutional muster under the First Amendment. (December 31, 2014 Order, Marion County,

Cause No. 49D03-1312-MI-044739.) On April 2, 2015, the IPLA and the ISBD appealed the

Marion County ruling, and the appeal is now pending with the Indiana Court of Appeals, under

Cause No. 49A02-1504-MI-00197.

Prior to the Marion County appeal deadline, Atcha filed the present Complaint against the

2
State of Indiana, the IPLA, the ISBD, several ISBD members (collectively “State Defendants”),

and Sharma. (Complaint; DE 1.) Atcha’s Complaint against the State Defendants brings claims

under the First Amendment (Counts I and II), and a claim for malicious prosecution (Count IV) .

2

In support of their motion to dismiss, the State Defendants first argue that they are

entitled to Eleventh Amendment immunity. Sovereign immunity under the Eleventh

Amendment of the United States Constitution bars suit against states and state agencies in federal

court, regardless of the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58

(1996); Tucker v. Williams, 682 F.3d 654, 658 (7th Cir. 2012).

Further, the Eleventh Amendment extends to state officials sued in their official capacity

for damages, as they are representatives of the state. Garcia v. City of Chicago, 24 F.3d 966, 969

(7th Cir. 1994) (“The Eleventh Amendment prohibits federal courts from deciding suits brought

by private litigants against states or their agencies, and that prohibition extends to state officials

acting in their official capacities.”) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58,

71 (1989). Although Atcha repeatedly refers to this matter as a “complaint for damages”,

(Complaint ¶ 1, 3, 52), Counts I, II, and IV include requests for injunctive relief. (Complaint p.

10-16.) Under the Ex parte Young doctrine, a plaintiff may seek prospective relief against state

officials for continued violations of federal law. Perick v. Indiana University-Purdue University

Indianapolis Athletics Dept., 510 F.3d 681, 695 (7th Cir. 2007) (citations omitted.) But to the

extent Atcha is seeking damages against Cindy Vaught in her official capacity, the Defendants

 The State Defendants originally believed that Atcha had alleged a Section 1983 2

conspiracy claim and a claim under Article I, Section 21 of the Indiana Constitution. Atcha has

clarified in his response brief that he is not alleging either claim. Thus these claims will not be

discussed in this order.

3
argue that the claims should be dismissed under the Eleventh Amendment.

 Atcha, however, contends that pursuant to Ex Parte Young, Eleventh Amendment

Immunity does not apply to the State, IPLA, or the ISBD because he is seeking injunctive relief. 

As noted, Atcha’s Complaint does contain language seeking injunctive relief. However, Atcha’s

analysis of Young is in error. As noted, Ex parte Young allows a plaintiff to seek prospective

relief against state officials for continued violations of federal law. Perick v. Indiana UniversityPurdue University Indianapolis Athletics Dept., 510 F.3d 681, 695 (7th Cir. 2007) (citations

omitted.) The State, IPLA, and ISBD are not state officials and Atcha offers no legal support to

grant an extended reading of the Ex Parte Young doctrine to either states or state agencies.

Further, to the extent Atcha contends that Eleventh Amendment immunity is somehow abrogated

in the First Amendment context, Atcha relies on five cases, none of which directly support this

abrogation in a civil context under 42 U.S.C. § 1983. Further, many of the cases cited are reviews

by the Supreme Court of a particular state’s high court decision, and thus those cases are in

wholly different procedural postures and are not applicable to the present case. This court holds

that Atcha’s claims against the State Defendants, including the damages claims against Cindy

Vaught in her official capacity, are barred by the Eleventh Amendment.

Next, the State of Indiana, the IPLA, the ISBD and Cindy Vaught, in her official capacity,

argue that they are not “persons” as defined by 42 U.S.C. § 1983. The Supreme Court has

consistently held that states, state agencies, and state officials, sued in their official capacity, for

damages, are not “persons” under 42 U.S.C. § 1983. Will, 491 U.S. at 71 (1989); see also Hafer

v. Melo, 502 U.S. 21, 27 (1991) (“State officers sued for damages in their official capacity are not

‘persons’ for purposes of the [§ 1983] suit because they assume the identity of the government

4
that employs them.”). As stated above, although Atcha repeatedly refers to this matter as a

“complaint for damages”, (Complaint ¶ 1, 3, 52), Counts I, II, and IV include requests for

injunctive relief. (Complaint p. 10-16.) Therefore, to the extent Plaintiff is seeking damages

against the State of Indiana, the IPLA, and the ISBD, and Cindy Vaught in her official capacity,

those claims must be dismissed.

Although Atcha’s Response recognizes the Supreme Court’s holding in Will v. Michigan

as good law, Atcha argues that “the rationale used by the Will Court, and promulgated through

the years in its progeny of cases, is flawed.” (Plaintiffs’ Response, p. 5.) Atcha’s Response offers

scant authority in support of this bold assertion. Rather, Atcha’s Response relies upon Justice

Brennan’s dissent in Will, which holds no binding authority, and two cases, United v. Fed.

Election Comm'n, 558 U.S. 310 (2010) and King v. Burwell, 135 S. Ct. 2480, 2489 (2015), that

neither overturn the Supreme Court’s decision in Will or directly support inclusion of states or

state agencies as “persons” under Section 1983. As it is clear that Will is binding on this court,

all claims for damages against the State of Indiana, the IPLA, the ISBD, and Cindy Vaught in her

official capacity will be dismissed.

Next, the State Defendants argue that Atcha’s First Amendment claims should be

dismissed under the Younger Abstention Doctrine. Broadly stated, the Younger Abstention

Doctrine stands for the proposition that, absent special circumstances (such as bad-faith

enforcement), a federal court should dismiss or stay a case rather than interfere with pending

state proceedings. See Younger v. Harris, 401 U.S. 37 (1971); Middlesex County Ethics Comm.

v. Garden State Bar Ass'n, 457 U.S. 423, 431-432 (1982); Gakuba v. O’Brien, 711 F.3d 751, 751

(7th Cir. 2013) (staying the action as opposed to dismissal without prejudice because claims may

5
become time-barred after state prosecution and monetary damages unavailable in his criminal

defense). In Younger, the Supreme Court observed that a “vital consideration” in such

circumstances is “the notion of ‘comity,’ that is, a proper respect for state functions, a recognition

of the fact that the entire country is made up of a Union of separate state governments, and a

continuance of the belief that the National Government will fare best if the States and their

institutions are left free to perform their separate functions in their separate ways.” Id. at 44.

In Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423

(1982), an attorney directly challenged the constitutionality of state disciplinary rules in district

court, rather than filing a response to a complaint with the ethics commission as part of the

administrative process. In evaluating whether the Younger Abstention Doctrine appropriately

applied, the Court looked to three factors: (1) whether the state proceedings constituted ongoing

judicial proceedings; (2) whether the proceedings implicated important state interests; and (3)

whether there was an adequate opportunity in the state proceedings to raise constitutional

questions. Id. at 432. Further, the Court looked for any showing of “bad faith, harassment, or

other exceptional circumstances” that may call for federal intervention. Id. at 437. The Court

ultimately found abstention appropriate in this circumstance and “remanded for further

proceedings consistent with [its] opinion.” Id. at 437.

Similar to the Middlesex County case, the Younger Abstention Doctrine is appropriately

applied to Atcha’s First Amendment claim. First, “[f]or purposes of Younger abstention,

administrative proceedings are ‘judicial in nature’ when they are coercive – i.e., state

enforcement proceedings, as opposed to remedial, or legislative.” Majors v. Engelbrecht, 149

F.3d 709, 712 (7th Cir. 1998) (internal citations omitted.) In the present case, the administrative

6
complaint and subsequent proceedings for which Atcha brings his First Amendment claim were

part of an enforcement action against Atcha – a state proceeding which is still pending. Second,

this proceeding implicates the important state interests of not only adjudicating violations of state

administrative regulations but of determining the constitutionality of those same state

administrative regulations. Third, the pending state proceedings will provide Atcha with an

adequate opportunity for review of his First Amendment constitutional claims, as Atcha’s

Complaint asserts that the Marion County court has already found in Atcha’s favor regarding the

question of whether the regulations violate Atcha’s First Amendment rights. (Complaint ¶ 39.)

Moreover, no extraordinary circumstances are apparent which would require federal intervention

at this stage. 

In response, Atcha asserts that the Younger Abstention Doctrine does not apply to this

case because his Complaint “does not seek to enjoin, or stop, the state action”, and because the

claims raised in the present case are of a “wholly different nature”. However, the Younger

Abstention Doctrine does not require the federal proceeding to seek to directly enjoin the

ongoing proceeding. Rather, Younger looks to whether a Court should dismiss or stay a matter

while there are ongoing judicial proceedings that implicate an important state interest, and

whether there is adequate opportunity to raise the constitutional question in the ongoing

proceedings. Those are precisely the circumstances before this Court. There is an ongoing

judicial proceeding before the Indiana Court of Appeals, dealing with the important state

interests of adjudicating violations of state administrative regulations and of determining the

constitutionality of those same state regulations, and that provide Atcha adequate opportunity to

review his First Amendment constitutional claim. Second, Atcha’s First Amendment claim

7
before this Court and Atcha’s First Amendment claim before the Indiana Court of Appeals are

the same. Thus, Atcha has adequate opportunity to raise and address his First Amendment claim

in the state court proceeding. Accordingly, it is clear that the Younger Abstention Doctrine

applies, and thus the motion to dismiss is properly granted as to all the State Defendants on this

basis also.

Next, the State Defendants argue that Atcha’s Complaint fails to state a malicious

prosecution claim under either § 1983 or Indiana law. Count IV of Plaintiffs’ Complaint alleges

a malicious prosecution claim against all Defendants. (Complaint ¶ 79-85.) Although it is unclear

whether Atcha is bringing this claim as a state tort or under 42 U.S.C. § 1983, under either theory

Atcha’s Complaint fails to state a claim upon which relief can be granted. “To state a malicious

prosecution claim under § 1983, a plaintiff must demonstrate that: (1) he has satisfied the

elements of a state law cause of action for malicious prosecution; (2) the malicious prosecution

was committed by state actors; and (3) he was deprived of liberty.” Welton v. Anderson, 770 F.3d

670, 674 (7th Cir. 2014), reh'g and suggestion for reh'g en banc denied (Jan. 20, 2015), cert.

denied (citing Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996)). “Under Indiana law,

‘[t]he elements of a malicious prosecution action are: (1) the defendant instituted or caused to be

instituted an action against the plaintiff; (2) the defendant acted maliciously in so doing; (3) the

defendant had no probable cause to institute the action; and (4) the original action was terminated

in the plaintiff’s favor.” Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 462 (7th

Cir.2009) (citing Crosson v. Berry, 829 N.E.2d 184, 189 (Ind. Ct. App. 2005)). Thus, a key

element under both legal theories is whether the original action has terminated in plaintiff’s

favor.

8
Atcha’s Complaint asserts that the administrative complaint filed against him in March

2012 is the proceeding in which Atcha was maliciously prosecuted. (Complaint ¶ 81.) However,

in order bring this malicious prosecution claim, the original action must have terminated. As

discussed above, the question of the appropriateness of the Board’s Order on that administrative

complaint is now pending in the Indiana Court of Appeals under Cause No. 49A02-1504-MI00197. Therefore, State Defendants ask this Court to dismiss Atcha’s claim for malicious

prosecution as Atcha, at this time, has not stated a claim upon which relief can be granted.

Atcha’s contention that the original action has terminated in his favor is unfounded.

Atcha simultaneously acknowledges that an appeal is pending while baldly asserting that the

matter is terminated. However, if an appeal is pending, the Indiana Court of Appeals has at its

disposal the ability to overrule the lower court decision. Therefore, the original action is clearly

not yet determined and Atcha’s claim of malicious prosecution will be dismissed. 

Next, the State of Indiana and the ISBD argue that they cannot be held liable under the

Monell doctrine. As previously discussed, states and state agencies are not “persons” under 42

U.S.C. § 1983. However, as a result of Monell v. New York City Dept. of Social Services, 436

U.S. 658 (1978), municipalities and local government bodies may be “persons” within the

meaning of 42 U.S.C. § 1983. Atcha appears to bring a First Amendment claim against the State

of Indiana and ISBD under a theory of Monell liability in Count II of his Complaint. (Complaint

p. 11- 13.) As neither the State nor the ISBD are local governing bodies or municipalities,

Atcha’s Count II fails because the State and ISBD are not “persons” as defined under 42 U.S.C. §

1983. Further, as discussed above, both the State and ISBD are protected by Eleventh

Amendment immunity.

9
In response, Atcha refers to his previous unsupported argument challenging the United

States Supreme Court’s decision in Will. Atcha has failed to provide sufficient support to

challenge Will or demonstrate in any way that Will has been overturned, and thus his argument

fails.

Next, the individual State Defendants argue that they are entitled to quasi-judicial

immunity. Absolute, quasi-judicial immunity has been held to protect government officials who

are not strictly judges. For example, in Crenshaw v. Baynerd, the Seventh Circuit found the

Indiana Civil Rights Commission (“ICRC”) entitled to quasi-judicial immunity in a § 1983

action in which Crenshaw alleged the ICRC failed to investigate her complaint. In reaching its

decision, the Court noted that “[t]he ICRC is a quasi-judicial adjudicatory body; the Commission

members, although not members of a court, perform duties functionally comparable to those of a

judicial officer.” Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 1999).

Clearly, any alleged actions by the individual State Defendants fall squarely within this

quasi-judicial protection. At the center of this Complaint is Atcha’s contention that State

Defendants violated his rights by instituting administrative proceedings that ultimately found

Atcha in violation of advertising regulations. Even assuming, arguendo, that the Board knew the

advertising regulations were “clearly unconstitutional,” all actions alleged occurred in the

Board’s adjudicatory capacity.

Atcha contends that State Defendants have not demonstrated that the individual ISBD

members were operating within an adjudicatory capacity. However, the very nature of Atcha’s

allegations provides this support. It is the individual State Defendants’ adjudicatory action that

Atcha asserts violated his First Amendment rights. Thus, the actions of which he complains are

10
actions taken within an adjudicatory capacity and all individual State Defendants are entitled to

quasi-judicial immunity.

In sum, for all the above reasons, the motion to dismiss will be granted with respect to all

the State Defendants as to all claims against them.

Now the court will turn to Defendant Sharma’s motion to dismiss. Sharma, like Atcha, is

a citizen and resident of Illinois. Sharma was a witness who sat for a deposition in Illinois. 

Atcha’s attorney did the only questioning at this deposition. That deposition transcript was

introduced by Atcha himself during the Board proceeding regarding Atcha’s advertising. Atcha

has now brought malicious prosecution and defamation claims against Sharma.

Sharma first argues that Count IV (malicious prosecution) is premature and should be

dismissed. As noted above, a malicious prosecution claim may not be initiated until the

underlying proceeding (i.e., that is alleged to have been improper) has been terminated in its

entirety. Where a trial court order or an agency decision is on appeal, the case has not been

“terminated” for purposes of a malicious prosecution claim. The law on this point is quite clear:

There is no favorable termination of an action for purposes of malicious

prosecution until the action has been finally and favorably decided on

appeal or it has been finally and favorably decided in the trial court and

the time for appeal has passed. Accordingly, a malicious prosecution

action cannot be maintained while the underlying action is pending on

appeal.

54 C.J.S. Malicious Prosecution § 63.

Both Illinois and Indiana follow this rule that where an underlying action is subject to

appeal, a party cannot initiate a malicious prosecution claim based on that action until the appeal

has terminated.

11
[T]he termination of a prior proceeding in favor of the plaintiff is an

essential element in a cause of action for malicious prosecution which

must be factually set forth in the complaint. The instant complaint was

fatally deficient in this regard. In fact, plaintiff did not have a valid cause

of action for malicious prosecution at the time he filed his complaint

because the contempt proceeding, upon which the complaint was based,

simply did not terminate in his favor.

Kay v. Boehm, 32 Ill. App.3d 853, 855, 336 N.E.2d 781, 782 (1975) (noting that the

underlying contempt proceeding had been appealed and the appeal was pending when the

malicious prosecution claim was initiated).

An essential element in claim of malicious prosecution is that the criminal

prosecution be terminated in plaintiff's favor.

Proceedings are deemed terminated in favor of the plaintiff if: (1) a

favorable adjudication of the claim is entered by a competent tribunal; (2)

the action is dismissed or withdrawn; or (3) the action is dismissed

because of a failure to prosecute the claim. If an appeal is taken, the

proceedings do not terminate until the final disposition of the appeal.

9 Ind. Practice Series, Procedural Forms With Practice Commentary § 29.1 (3d ed.); see

also Mattingly v. Whelden, 435 N.E.2d 61, 63 (Ind. Ct. App. 1982).

As noted, the state trial court’s judgment declaring advertising restrictions

unconstitutional and reversing certain of the Board’s actions against Atcha was appealed and is

now pending the Court of Appeals of Indiana. See Atcha, No. 49A02-1504-MI-197 (Ind. App.).

As a matter of law, Count IV must be dismissed because it is based upon a legal proceeding that

has not yet been terminated.

Sharma also argues that the malicious prosecution claim should be dismissed because

Sharma did not prosecute any action against Atcha. Atcha admits in his Complaint that the Board

(i.e., not Sharma) filed the administrative complaint against him. (Compl. ¶ 28.) “In its

complaint, the Board, through its members ... alleged multiple violations of the Board’s

12
advertising regulations.” (Compl. ¶ 29.) The Board (not Sharma) made determinations

unfavorable to Atcha. (Compl. ¶¶ 29—34.)

Sharma did not file a lawsuit or prosecute Atcha. Rather, Atcha alleges that Sharma

“provided false and fraudulent information” regarding Plaintiff’s dental advertising. (Compl. ¶

49.) This Court can take judicial notice of the official minutes of the Board, (Ex. 1),

which lay out the evidence presented in the administrative proceeding against Plaintiff Atcha.

The minutes confirm that Sharma did not attend that Board proceeding. (See id. at pp. 10—11.)

In fact, the State of Indiana did not introduce the transcript of the deposition of Sharma. Rather it

was Atcha’s own attorney who introduced Sharma’s deposition testimony as Respondent Exhibit

16. (Id. at 12, Respondent Exhibit 16.)

Clearly, it was Atcha himself who injected Sharma’s testimony into the administrative

proceeding. In any event, nothing Sharma said could ultimately change whether Atcha’s

advertisements were in violation of the Board regulations. (See Ex. 1 at pp. 12—13.) The content

of Atcha’s advertisements (not the content of Sharma’s testimony) would dictate whether or not

the ads ran afoul of the Board rules for dentists. Thus, the malicious prosecution claim against

Sharma is properly dismissed for this reason also. 

Next, Sharma argues that the defamation claim in Count III should be dismissed because

it is untimely. As noted, Atcha and Defendant Sharma are both citizens and residents of Illinois.

(Compl. ¶¶ 5, 16.) Sharma was deposed by Atcha’s counsel in DuPage County, Illinois,

pursuant to the Illinois Code of Civil Procedure and Rules of the Illinois Supreme Court.

The transcript of that deposition was prepared by an Illinois licensed court reporter. (Id.) Sharma

contends that Illinois law is the appropriate substantive law to govern the claims against him.

13
“Federal courts hearing state law claims under ... supplemental jurisdiction apply the forum

state’s choice of law rules to select the applicable state substantive law.” McCoy v. Iberdrola

Renewables, Inc., 760 F.3d 674, 684 (7th Cir.) reh’g denied, 769 F.3d 535 (7th Cir. 2014). “In a

defamation action, the place of the tort is generally considered the place of publication.” Hoffman

v. Roberto, 578 N.E.2d 701, 705 (Ind. Ct.App. 1991).

Under Illinois law, the statute of limitations for a defamation claim is one year. See 735

ILCS 5/13–201. The same limitations period applies if a plaintiff alleges that a party “conspired”

to defame him. Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶ 106, 987 N.E.2d 864, 894.

Sharma was deposed on September 19, 2013. The transcript of his deposition was

prepared by an Illinois court reporter on September 23, 2013. (Ex. 2.) The Board put Atcha on

probation shortly thereafter on October 4, 2013. Sharma contends that Atcha did not timely

commence his defamation claim. Atcha filed this action on May 8, 2015. The one-year

limitations period had expired by September 2014, or (at the latest) by October 4, 2014.

In his Response, Atcha ignores choice-of-law entirely and never argues for the application

of a different jurisdiction’s laws. Choice of law is an issue that is waived if not argued or

contested in briefing. See Muslin v. Frelinghuysen Livestock Mgrs., Inc., 777 F.2d 1230, 1231

n.1 (7th Cir. 1985); Leaf v. Brogan Pharmaceuticals, Inc., 642 F. Supp.2d 844, 851 n.2 (N.D Ind.

2009) (citing cases). Because Atcha has waived or acquiesced to the application of Illinois law,

this court will apply Illinois law.

As noted, Illinois has a one year statute of limitations for defamation. See 735 ILCS

5/13–201; Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶ 106, 987 N.E.2d 864, 894.

Thus, the question is whether Atcha sued within one year of the alleged tortious action by

14
Sharma. Atcha argues that his defamation claim is based upon statements made before the Board

prosecution even began – i.e., before the 2013 deposition – based on Atcha’s belief that Sharma

made statements that caused the State of Indiana to prosecute and order a probation for Atcha.

Atcha admits that the Board filed an administrative complaint against him on March 16, 2012.

(Compl. ¶ 28.) Thus, even assuming that Sharma made some defamatory statement to the State

Defendants before the Board decided to prosecute Atcha, this lawsuit was untimely under Illinois

law because it was filed more than one year after March 16, 2012. Accordingly, the defamation

claim against Atcha will be dismissed.

Conclusion

On the basis of the foregoing, the State Defendants’ motion to dismiss [DE 25] is hereby

GRANTED. Further, Sharma’s motion to dismiss [DE 29] is also hereby GRANTED.

 Entered: November 6, 2015.

 s/ William C. Lee 

 William C. Lee, Judge

 United States District Court

15