-4-
Runes filed a complaint for administrative review of the order,

which is still pending in the Circuit Court of Cook County. (Id.,

G{@ 20.)

On November 30, 2000, the IDPR filed a second complaint
against Runes, seeking suspension or revocation of her nursing
license for purported “dishonorable, unethical or unprofessional
conduct” and practicing beyond the scope of her nursing license.
(Id., 9 21 & Ex. S.) The factual basis for this complaint was that
Runes had allegedly told Provena in June 1999 that she would not
perform any more midwife services and that subsequently a patient
seen in the Emergency Room at Provena on June 16, 2000 informed the

staff that Runes had delivered her baby at home. (Id., Ex. S.)

Runes filed this 42 U.S.C. § 1983 action on December 21, 2000,
seeking declaratory and injunctive relief against defendant in his
official capacity as Director of the IDPR. Runes alleges that
defendant violated her substantive due process rights by enforcing
and prosecuting “a prohibition of direct entry midwifery which does

not appear anywhere in Illinois statute.” (Id., § 25.) Runes also

contends that her procedural due process rights have been violated
in the administrative enforcement proceedings. (Id. at 8.)
Defendant has moved to dismiss the complaint on various
grounds: (1) the court should abstain from this case based on the
Younger, Pullman, and Burford abstention doctrines; (2) plaintiff's
claims are barred by the statute of limitations for § 1983 claims;

and (3) plaintiff has failed to state a claim for violation of


-9-
brought without a reasonable expectation of obtaining a valid

conviction. See Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir.

1993). Plaintiffs must meet a high threshold to establish bad
faith or harassment as an exception to the Younger doctrine. To
invoke the bad faith exception, a plaintiff must allege specific
facts that support more than just a conclusory inference of bad
faith. See Collins, 807 F.2d at 98. “This specific evidence must
show that state prosecution ‘was brought in bad faith for the
purpose of retaliating for or deterring the exercise of
constitutionally protected rights.’” Id.

The purported evidence of bad faith plaintiff offers is a
letter from defendant stating the IDPR’s position that, pursuant to
the Medical Practice Act and the Nursing Act, “unlicensed,
unregulated midwives are. guilty of a Class A Misdemeanor for the
first offense and a Class 4 Felony for each subsequent conviction.”
(Complaint, Ex. A, Letter from Leonard A. Sherman to Brad Cole of
Tllinois Families for Midwifery and Yvonne [Lapp] Cryns of the
Illinois Council of Certified Midwives (Apr. 12, 2000).) This
letter, however, does not demonstrate that the state proceedings
were brought against plaintiff to retaliate for or to deter the
exercise of her constitutional rights; on the contrary, it is
consistent with a good-faith belief on the part of defendant that
the Medical Practice Act and the Nursing Act apply to plaintiff's
conduct. Plaintiff contends that “{i]t can be reasonably inferred

from Sherman’s letter that the [IDPR] intends to prosecute Runes or


-6-

or to harass, or are based on a “flagrantly and patently”
unconstitutional statute. See Middlesex, 457 U.S. at 435, 437.

Plaintiff does not contest that the first Younger prong is
satisfied: there are ongoing state proceedings here that are
judicial in nature, both administratively and in the Circuit Court
of Cook County. However, plaintiff argues that the second Younger
prong is not satisfied because the state proceedings do not
implicate an important state interest. Plaintiff contends that no
Illinois law supports thé IDPR’s position in the state proceedings
and thus no important state interest is at stake. This argument
misses the mark. In New Orleans Public Service, Inc. v. Council of
New Orleans, 491 U.S. 350, 365 (1989), the Supreme Court explained
that in determining whether the state proceeding involves
sufficiently important state interests, a court must “not look
narrowly to [the state’s] interest in the outcome of the particular
case,” but rather to “the importance of the generic proceedings to
the State.” Thus, the relevant question is whether the state
proceedings seeking enforcement of the Medical Practice Act and the
Nursing Act are, in general, of sufficient state importance to
warrant this court’s abstention. The Seventh Circuit has stated:
“That the regulation and licensing of health care professionals is
an important matter of state concern is beyond dispute.” Majors,
149 F,3d at 713. Therefore, we conclude that the state proceedings
here implicate important state interests.

Plaintiff also contends that the third Younger prong is not


-5-
substantive and procedural due process.
DISCUSSION
Younger v. Harris, .401 U.S. 37 (1971) and its progeny hold
that federal courts must abstain, absent “extraordinary
circumstances,” from deciding matters that might interfere with the

judicial process of state courts and administrative agencies when

important state interests are involved. See Barichello v.
McDonald, 98 F.3d 948, 954 (7th Cir. 1996). The core of the

Younger doctrine is comity--the notion that federal courts should
respect the legitimate interests of state governments and try to
avoid unduly interfering with those interests. See AFSCME v.
Tristano, 898 F.2d 1302, 1303-04 (7th Cir. 1990).

The Younger doctrine applies not only to state criminal
proceedings, but also to state civil proceedings and administrative
proceedings, provided that three requirements are met. See

Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 432 (1982); Majors v. Engelbrecht, 149 F.3d 709, 712 (7th Cir.
1998). Abstention is appropriate if (1) there are ongoing state
proceedings that are “judicial in nature”; (2) the proceedings
implicate important state interests; and (3) there is an adequate
opportunity in the state proceedings to raise constitutional
claims. See Majors, 149 F.3d at 712-13. Abstention is not
appropriate, though, if “extraordinary circumstances” exist; for

example, if the state proceedings are being undertaken in bad faith


-8-

Cease and Desist Order.’ Accordingly, the third prong of
Younger is satisfied here.

Younger bars us from enjoining the pending state proceedings

“except in the very unusual situation that an injunction is

necessary to prevent great and immediate irreparable injury.” Ohio

Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619,

626 (1986). Plaintiff asserts that this exception to the Younger
doctrine applies here because the IDPR’s actions have affected her
livelihood “as both a midwife and a licensed nurse.” (Plaintiff’s
Response at 6.) This allegation does not show that there is a
pressing need for immediate equitable relief in this case.
Plaintiffs cannot complain where the injury asserted “is solely
‘that incidental to every [such] proceeding brought lawfully and in
good faith.’” Younger, 401 U.S. at 49. While we do not mean to
downplay the effects of the state proceedings on plaintiff, they do
not rise to the level of “great and immediate irreparable injury.”

For Younger purposes, a showing of a bad faith prosecution is
equivalent to a showing of irreparable injury. See Collins v.
County of Kendall, 807 F.2d 95, 98 (7th Cir. 1986). Plaintiff

appears to contend that the state proceedings were brought in bad

faith. “Bad faith” genérally means that a prosecution has been

* "[I}t is sufficient . . . that constitutional claims may be raised in

state-court judicial review of the administrative proceeding." Ohio Civil Rights
Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986). The Supreme
Court has “repeatedly rejected the argument that a constitutional attack on state
procedures themselves ‘automatically vitiates the adequacy of those procedures’”
for purposes of the Younger doctrine. Id. at 628 (quoting Moore v. Sims, 442
U.S. 415, 427 n. 10 (1979)).



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

we 7 ;
seepage ie | John F. Grady | Sete
CASE NUMBER 00 C 7995 DATE May 21, 2001
CASE Vickerman v. Sherman
TITLE

[In the fotlowing box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

MOTION:

DOCKET ENTRY:

(63) 0 Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) a Answer brief to motion due___—. - Reply to answer briefdue_

(4) Oo Ruling/Hearing on set fort

(5) o Status hearing[held/continued to] [set for/re-set for]on__—setfor__—_att

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—s ss at_— st.

(7) Oo Trial[set for/re-set for] on at

(8) a} [Bench/Jury trial] [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(n) O General Rule21 OO FRCP41(a)(1) © FRCP41(a)(2).

(10) | | [Other docket entry] Defendant’s motion to dismiss (5-1) is granted.
Plaintiff’s complaint is dismissed on Younger abstention grounds,
without prejudice to further state proceedings. See attached for

details. ENTER MEMORANDUM OPINION.

(650) x [For further detail see order (on reverse side of/attached to) the original minute order.]}

No notices required, advised in open court.

No notices required.
number of notices

MAY 25 200f°

x Notices MAILED by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to
courtroom
KAM deputy’s
initials Date/time received in
central Clerk’s Office railing deputy initials

(Reserved for use by the Court)


-10-
any other unlicensed midwife in this State until such time as there
are no midwives left to prosecute,” suggesting that the IDPR would
not comply with a court order. (Plaintiff's Response at 6.) We
reject this argument as an unreasonable inference.

Accordingly, because the three Younger prongs are satisfied
and no exceptions apply, we must dismiss this case.
Younger abstention “contemplates the outright dismissal of the
federal suit.” Gibson v. Berr hill, 411 U.S. 564, 577 (1973).
Because the Younger doctrine is controlling, we do not reach the
applicability of the Pullman or Burford doctrines, and because
plaintiff’s claims are dismissed on jurisdictional grounds, we are
without power to decide defendant’s statute of limitations and Rule
12(b) (6) arguments.

CONCLUSION

For the foregoing reasons, we grant defendant’s motion to
dismiss the complaint. _ Plaintiff’s complaint is dismissed on
Younger abstention grounds, without prejudice to further state

proceedings.

Date: May 21, 2001

John Grady, United States District Judge

—


-7-
satisfied. Plaintiff bears the burden of showing that state
procedural law bars presentation of her claims. ee Pennzoil Co.

v. Texaco, Inc., 481 U.S. 1, 14 (1987). “Federal courts must
presume that state courts are capable of establishing and
administering judicial process consistent with the requirements of
the federal constitution, and that ‘state procedures will afford an
adequate remedy, in the absence of unambiguous authority to the
contrary.’” Barichello, 98 F.3d at 954-55 (quoting Pennzoil, 481
U.S. at 15). Plaintiff fails to rebut that presumption. She
indicates that she has raised due process claims “in all previous
and pending proceedings.” (Plaintiff’s Response at 5.) And rather
than alleging that she does not have an adequate opportunity to
raise her constitutional challenges in the administrative review
proceedings, plaintiff explains that so far, she has not chosen to
raise those challenges, and that she believes the IDPR will oppose
any future efforts to do so. (Id.) These contentions do not meet
plaintiff’s burden to show that she is barred from presenting her
constitutional claims, and we have no reason to believe that she
will not have that opportunity.* Moreover, plaintiff does not
dispute that she may seek appellate review of any decision in the
administrative proceedings; indeed, she is currently seeking

review, in the Circuit Court of Cook County, of the August 4, 2000

% Tllinois allows a plaintiff to join constitutional claims under § 1983
with a request for administrative review. See Manley v. City of Chicago, 236
F.3d 392, 397 (7th Cir. 2001).



-3-

nurse of labor and delivery at Provena for “jeopardizing [her] RN
license & reputation of Provena St. Joseph Hospital by illegally
practicing outside of the parameters of the Illinois Nursing
License. ”? (Id., @ 19 & Ex. O, Provena Standards of Performance
and Conduct Action Form.) The IDPR amended its complaint on August
15, 2000, adding additional counts of fraud in applying for a
license and material violation of the cease and desist order.
(Id., @ 17 & Ex. K.) Runes’ motion to dismiss the complaint was
denied. (Id., @ 18 & Ex. N.) According to defendant, Runes was
ordered to answer the complaint by December 29, 2000, but instead
she has moved to stay the administrative proceedings on the ground
that the instant case is pending in this court. (Defendant’s
Memorandum at 3 & Ex. G.) ,

On July 6, 2000, the IDPR issued another Rule to Show Cause,
alleging that Runes was practicing midwifery without having met the
requirements for licensure as an “advanced practice nurse” under
the Nursing Act. (Id., q 20 & Ex. P.) Runes again challenged the
IDPR’s jurisdiction, but was issued a second Cease and Desist Order

on August 4, 2000. (Id., 71 20 & Exs. Q, R.) On September 8, 2000,

2 Regarding her employment at Provena, Runes alleges that in early June

1999, IDPR investigators visited Provena and informed Runes’s supervisors that
she was being investigated for practicing beyond the scope of her nursing
license. The investigators also told the supervisors that Runes was suspected
of taking drugs from Provena for use in her midwifery practice, a charge that
Runes disputes. Runes was suspended for approximately three weeks and then
reinstated with back pay. In mid-June 2000, Runes was promoted to charge nurse.
(Complaint, @ 15.) As for her termination, Runes states: “Runes advised the
Hospital of her background at the time of hire, supporting the inference that
Provena only considered midwifery as beyond the scope of licensure after being
contacted by the [IDPR].” (Id., @ 19.)


-2-
Act”), and the Illinois Nursing and Advanced Practice Nursing Act,
225 ILCS 65/1 et seq. (the “Nursing Act”).

On September 29, 1998, the IDPR issued to Runes a “Notice of
Disciplinary Conference” related to her “extensive midwife services
since 1984.” (Complaint, 7 11 & Ex. B.) Runes refused to attend
the disciplinary conference on the ground that the practice of
midwifery is not licensed or regulated by Illinois law and thus

the IDPR had no jurisdiction over her. (Id., @ 11 & Ex. C.) On

October 28, 1998, the IDPR issued a Rule to Show Cause why it
should not order Runes to cease and desist several specified
actions, such as prenatal care and examinations, on the ground that
those actions constituted the unlicensed practice of medicine.
(Id., 1 12 & Ex. D.) Runes answered the Rule to Show Cause, again
challenging the IDPR’s jurisdiction; the IDPR then filed a reply,
and Runes responded. (Id., @ 12 & Exs. E, F, G.) On November 23,
1998, the IDPR ordered Runes to cease and desist the unlicensed
practice of medicine. (Id., 97 13 & Ex. H.)

In February 1999, Runes became licensed as a registered nurse
and began working at Provena St. Joseph Hospital (“Provena”) as a
labor and delivery nurse. (Id., @ 15.) On March 22, 2000, the
IDPR filed a five-count complaint against Runes, charging her with
practicing beyond the scope of her nursing license by performing
midwifery services and seeking discipline or the suspension or
revocation of Runes’ nursing license. (Id., © 17 & Ex. J.) On

July 5, 2000, Runes was terminated from her position as charge


00~7995.011-JCD May 21, 2001

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VALERIE VICKERMAN RUNES f/k/a
VALERIE VICKERMAN MORRIS,

Plaintiff,

v. No. 00 C 7995
LEONARD SHERMAN, not individually
but as Director, ILLINOIS
DEPARTMENT OF PROFESSIONAL
REGULATION,

)
)
)
)
)
)
)
)
)
)
)
)
)

Defendant.

MAY 25 2094
MEMORANDUM OPINION

This case comes before the court on defendant’s motion to
dismiss the complaint on abstention grounds, statute of limitations
grounds, and for failure to state a claim pursuant to Rule 12(b) (6)
of the Federal Rules of Civil Procedure. For the reasons stated
below, we grant the motion.

BACKGROUND

Plaintiff Valerie Vickerman Runes (“Runes”), formerly known as
Valerie Vickerman Morris, is a lay midwife.’ Defendant Leonard
Sherman is Director of the Illinois Department of Professional
Regulation (the “IDPR”), a state agency responsible for, among

other things, enforcing the provisions of the Illinois Medical

Practice Act of 1987, 225 ILCS 60/1 et seq. (the “Medical Practice

* Lay midwives, also known as “direct-entry” or “traditional” midwives,
assist parents in the birth process but are not licensed as doctors or as nurse-
midwives. (Complaint, @ 6.)