Jimmy Hinkle v. Rick White , 793 F.3d 764 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2254
JIMMY HINKLE,
Plaintiff-Appellant,
v.
RICK WHITE and THOMAS OLIVERIO,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-CV-00133 — Michael J. Reagan, Chief Judge.
ARGUED DECEMBER 11, 2014 — DECIDED JULY 16, 2015
Before WOOD, Chief Judge, and FLAUM and MANION, Circuit
Judges.
MANION, Circuit Judge. Jimmy Hinkle sued Rick White, an
investigator with the Illinois State Police, and White’s supervi-
sor, Thomas Oliverio, alleging that they violated his due
process rights by spreading rumors that he was an arsonist and
a child molester. The district court concluded that Hinkle had
not established a protected liberty interest and granted the
defendants summary judgment. We affirm.
2 No. 14-2254
I.
In August 2010, while Jimmy Hinkle was finishing his
elected term as Sheriff of Wayne County, Illinois, his fourteen-
year-old step-daughter falsely accused him of sexually abusing
her while helping her apply chigger medicine.1 An officer with
the Charleston, Illinois Police Department interviewed the
step-daughter and the Illinois Department of Children and
Family Services (“DCFS”) notified the Illinois State Police that
it had received a report that Hinkle had sexually abused his
step-daughter.
Rick White, an investigator with the Illinois State Police,
began investigating the step-daughter’s allegations. White
interviewed the step-daughter and she repeated her claim of
sexual abuse. However, her sister (another of Hinkle’s step-
daughters) was also interviewed and she said that Hinkle had
also helped her apply chigger medication and that it was non-
sexual. She also said she thought her sister was lying because
Hinkle and her mom were too strict. White also interviewed
Hinkle, who denied the allegation. The step-daughter later
recanted her claim of sexual abuse on several occasions and an
Illinois prosecutor declined to press charges against Hinkle.
Nonetheless, the accusations became well-known in the
community because White talked to a lot of people with whom
he had no business sharing details of the investigation. For
1
Because this case comes to us at the summary judgment stage, we set
forth the facts in the light most favorable to the non-moving party, Hinkle.
Little v. Illinois Dept. of Revenue, 369 F.3d 1007, 1008 (7th Cir. 2004).
No. 14-2254 3
example, while at the local Wal-Mart in January 2011, White
told Roy Finley, his third cousin and a felon, to listen to the
news and that there would be a story about a former Wayne
County Sheriff,2 whom Finley was able to determine was
Hinkle from White’s comments. White told Finley that there
was a “bad charge” and that “the former sheriff would be
looking at prison time.” White also told Stephanie Luker, a
Trooper with the Illinois State Police, that there was a sexual
assault case against Sheriff Hinkle. (Luker was in no way
involved in the investigation of the matter.) Additionally,
White told Jonah Kinsolving, an investigator with the Secretary
of State’s Office (who also had nothing to do with the investi-
gation) that he (White) was investigating Hinkle for sexually
abusing his step-daughter. White told Kinsolving that he
(White) was right in believing Hinkle sexually abused his step-
daughter. Kinsolving went home and told his wife about it and
his wife in turn told her hairdresser.
If telling the local hairdresser wasn’t enough to churn the
rumor mill, word was also leaked to the local paper, the
Disclosure, at White’s instigation. White directed Greg Hanisch,
an inspector for the Southern Illinois Drug Task Force (who
worked out of the Illinois State Police station), to tell a local
reporter to look into the Kelly Henby and Hinkle matter.
Henby was apparently a private investigator who interviewed
the step-daughter and to whom she recanted. Hanisch leaked
2
While Hinkle was still the Sheriff at the time of his step-daughter’s false
allegations in August 2010, he had lost the February 2010 primary election
for Sheriff and was no longer serving as Sheriff at the time of White’s
conversation with Finley.
4 No. 14-2254
to the Disclosure that an arrest warrant had been issued for
Henby charging him with working as a private investigator
without a license. The Disclosure also published an article that
included details of the step-daughter’s initial claim of sexual
abuse, although the article, in essence, said the step-daughter
was lying and provided an innocent explanation for what
really happened, while positing that the information was made
public in retaliation for Henby and Hinkle crossing White on
other matters. Nonetheless, in the end, the rumor that Hinkle
was a child molester permeated the public sphere.
In addition to the rumor that Hinkle had sexually abused
his step-daughter, there was talk that Hinkle was also an
arsonist. A couple of months before his step-daughter falsely
accused him of sexually assaulting her, Hinkle’s home was
destroyed by a fire. White spoke with the State Fire Marshal
concerning the investigation into the cause of the fire and
asked a detective with the Wayne County Sheriff’s Department
whether he “suspected anything” about the fire. Thomas
Oliverio, a lieutenant with the Illinois State Police, went one
step further, saying to another investigator, “[h]ow much do
you want to bet me that [Hinkle’s] prize 1950 Chevy was not
in the garage when he burnt his house? … I’m telling you, he
moved that car from his garage before the fire.”
After his step-daughter recanted her accusation of sexual
abuse and the prosecutor declined to press charges, Hinkle
filed this § 1983 suit against White and Oliverio, alleging the
defendants denied him his right to liberty in the occupation of
his choice without due process of law. Specifically, Hinkle
alleged that the defendants, by spreading the rumors that he
was an arsonist and child molester, rendered him unable to
No. 14-2254 5
find a job in law enforcement management. The defendants
moved for summary judgment. The district court granted the
defendants summary judgment, concluding that Hinkle did
not establish a protected liberty interest. Hinkle appeals. We
review the district court’s grant of summary judgment de novo.
Simpson v. Beaver Dam Comm. Hosp., Inc., 780 F.3d 784, 789 (7th
Cir. 2015).
II.
The Fourteenth Amendment forbids a state from depriving
a person of “life, liberty, or property, without due process of
law.” U.S. Const. Amend. XIV § 1. To prevail on a procedural
due process claim, “a plaintiff must establish that a state actor
deprived him of a constitutionally protected liberty or property
interest without due process of law.” Dupuy v. Samuels, 397
F.3d 493, 503 (7th Cir. 2005). In evaluating a due process claim,
we ask two questions: 1) “whether there exists a liberty or
property interest which has been interfered with by the State;”
and 2) “whether the procedures attendant upon that depriva-
tion were constitutionally sufficient.” Id.Hinkle claims he has a protected liberty interest to pursue
the occupation of his choice, namely law enforcement manage-
ment. “The concept of liberty protected by the due process
clause has long included occupational liberty—‘the liberty to
follow a trade, profession, or other calling.’” Wroblewski v. City
of Washburn, 965 F.2d 452, 455 (7th Cir. 1992) (quoting Lawson
v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir.
1984)). However, “[i]t is the liberty to pursue a calling or
occupation, and not the right to a specific job, that is secured by
the Fourteenth Amendment.” Id. (emphasis added). Previ-
6 No. 14-2254
ously, “[w]e have declared that being a police officer is an
occupation; being a police lieutenant is not.” Wroblewski, 965
F.2d at 455 (quotation omitted). Thus, while “[t]o be a police-
man is to follow a particular calling and to be excluded from
that calling is an infringement of liberty of occupation, … a
particular rank in the police force is not an occupation … ”
Bigby v. City of Chicago, 766 F.2d 1053, 1057 (7th Cir. 1985). In
this case, Hinkle presented evidence that he applied for, and
was rejected for, five out-of-state Chief-of-Police jobs. “Chief of
Police” and “law enforcement management” equate more
closely to holding a particular rank or job in the police force,
than to following a particular calling. However, we need not
rest on this point. Even if we treat law enforcement manage-
ment as an occupation, as discussed below, Hinkle still cannot
succeed on his due process claim because he cannot show that
this liberty interest was “interfered with by the State.”
Hinkle claims the defendants interfered with his liberty
interest in his occupation by spreading rumors that he had
sexually abused his step-daughter and committed arson.
Reading the facts in the light most favorable to Hinkle, White
gravely harmed Hinkle’s reputation by his unprofessional
conduct that resulted in the step-daughter’s false claim of
sexual abuse becoming well-known in the community. It is less
clear whether Oliverio’s suggestion that Hinkle committed
arson was broadcast more broadly and also harmed his
reputation.3 But even assuming Oliverio likewise harmed
3
Hinkle also seeks to hold Oliverio responsible for White’s defamatory
statements because Oliverio supervised White and participated in portions
(continued...)
No. 14-2254 7
Hinkle’s reputation, “mere defamation by the government
does not deprive a person of ‘liberty’ protected by the Four-
teenth Amendment, even when it causes serious impairment
of one’s future employment.” Hojnacki v. Klein-Acosta, 285 F.3d
544, 548 (7th Cir. 2002). “Rather, it is only the ‘alteration of
legal status,’ such as government deprivation of a right
previously held, ‘which, combined with the injury resulting
from the defamation, justif[ies] the invocation of procedural
safeguards.’” Mann v. Vogel, 707 F.3d 872, 878 (7th Cir. 2013)
(quoting Paul v. Davis, 424 U.S. 693, 708–09 (1976)); Townsend
v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001). Thus, we conduct a
“stigma-plus” analysis to determine whether there was “an
injury to reputation along with a change in legal status …”
Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th Cir.
1990) (emphasis added).
In this case, the defendants did nothing to alter Hinkle’s
legal status. Rather, reading the facts in the light most favor-
able to Hinkle, the defendants defamed him. Even if that
defamation seriously impaired his future employment pros-
pects, the state did not alter his legal status. Thus, while Hinkle
3
(...continued)
of the investigation, such as the interviews of Hinkle. While Oliverio
participated in portions of the investigation, Hinkle did not present any
evidence that Oliverio facilitated, approved of, or condoned White’s
defamation. Thus, there is no supervisory liability for Oliverio based on
White’s defamatory statements. See Chavez v. Illinois State Police, 251 F.3d
612, 651 (7th Cir. 2001) (explaining that a supervisor is not liable for the
constitutional violations of a subordinate absent the supervisor’s personal
involvement in the unconstitutional conduct).
8 No. 14-2254
showed a serious stigma, without the “plus,” he cannot
maintain a due process claim for the denial of a liberty interest.
In response, Hinkle seemingly argues that he need not
show that the state altered his legal status because the defen-
dants’ defamation made it “virtually impossible” for him to
find new employment in upper-level management of police
work. In support of his position, Hinkle quotes our decisions
in Doyle v Camelot Care Ctrs., Inc., 305 F.3d 603, 617 (7th Cir.
2002), and Townsend, 256 F.3d at 670, wherein we said: “[W]hen
a state actor casts doubt on an individual’s ‘good name,
reputation, honor or integrity’ in such a manner that it be-
comes ‘virtually impossible for the [individual] to find new
employment in his chosen field,’ the government has infringed
upon that individual’s ‘liberty interest to pursue the occupa-
tion of his choice.’” Doyle, 305 F.3d at 617 (quoting Townsend,
256 F.3d at 670).
Hinkle, however, reads this language completely out of
context. In Doyle, two child-care workers sued various state
actors after they were “indicated” for child abuse or neglect,
their names were placed on a central registry, they were fired
from their jobs, and were in essence blacklisted from child-care
employment. As a result of their “indicated” status, the
plaintiffs were fired. It was in this context that Doyle, quoting
Townsend, spoke of it becoming “virtually impossible for the
[individual] to find new employment in his chosen field.”
Doyle, 305 F.3d at 617. But the state in Doyle had also altered the
plaintiffs’ legal status by indicating them for child abuse and
child neglect on its central registry. Thus, Doyle does not stand
for the broader proposition that defamation by state actors
No. 14-2254 9
which forecloses employment in their field of choice consti-
tutes the denial of a liberty interest.
Townsend, which Doyle quoted (and on which Hinkle also
relies), more clearly demonstrates that defamation, even if it
forecloses employment in a field or profession, is not action-
able as a Due Process claim. In Townsend, Alex Riley, a part-
time lifeguard and high school swimming coach, sued the
school’s Board of Trustees and two individual administrators,
claiming:
the defendants deprived him of a liberty interest in
his occupation when they dismissed him from his
position … and then made statements to the Chicago
Sun-Times, … to the effect that Mr. Riley should not
be rehired by the Board due to his “failure to per-
form duties” in the events surrounding [a student’s]
death.
Townsend, 256 F.3d at 669.
In discussing Riley’s liberty interest claim, this court
explained that the Supreme Court has “held that the state may
infringe a plaintiff’s liberty interest when, in declining to rehire
an employee, it makes a ‘charge against him that might seriously
damage his standing and associations in his community’ that
places his ‘good name, reputation, honor, or integrity … at
stake’ or when, in failing to rehire, it imposes on the plaintiff ‘a
stigma or other disability that foreclosed his freedom to take
advantage of other employment opportunities.’” Townsend, 256
F.3d at 669 (quoting Board of Regents v. Roth, 408 U.S. 564, 573
(1972)) (emphasis added). This court continued:
10 No. 14-2254
at the heart of every claim that an employer has
infringed an employee’s liberty of occupation, is a
charge that the “circumstances of that discharge, at
least if they were publically stated, had the effect of
blacklisting the employee from employment in
comparable jobs.” In such cases, the employee’s good
name, reputation, honor or integrity must be called
into question in a manner that makes it virtually
impossible for the employee to find new employ-
ment in his chosen field.
Townsend, 256 F.3d at 670 (quoting Colaizzi v. Walker, 812 F.2d
304, 307 (7th Cir. 1987)) (emphasis added).
The “virtually impossible for the employee to find new
employment” language from Townsend, quoted by Doyle and
relied upon by Hinkle, was used in the context of “such cases”
where the state declined to rehire the individual or discharged
the individual. See also Lashbrook v. Oerkfitz, 65 F.3d 1339,
1348–49 (7th Cir. 1995) (“However, to infringe an employee’s
liberty interests, the circumstances of the termination must make
it virtually impossible for the employee to find new employ-
ment in that field.”). On several occasions since then, in
discussing a liberty interest in an occupation, this court has
quoted the boilerplate “virtually impossible for the [individ-
ual] to find new employment in his chosen field” language of
Townsend. See, e.g., Khan v. Bland, 630 F.3d 519, 535 (7th Cir.
2010); McMahon v. Kindlarski, 512 F.3d 983, 988 (7th Cir. 2008);
RJB Properties, Inc. v. Board of Educ. of City of Chicago, 468 F.3d
1005, 1011 (7th Cir. 2006); Brown v. City of Michigan City,
Indiana, 462 F.3d 720, 730 (7th Cir. 2006). But this court has
never held that the State infringes on a plaintiff’s liberty interest
No. 14-2254 11
when the defamation alone renders it “virtually impossible for
the [individual] to find new employment in his chosen field.”
Townsend, 256 F.3d at 670; see Bryn Mawr Care, Inc. v. Sebelius,
749 F.3d 592, 598 n.4 (7th Cir. 2014) (“We do not decide
whether defamation ‘in a manner that makes it virtually
impossible for [plaintiff] to’ operate ‘in [its] chosen field’ is
sufficient to amount to a deprivation of a constitutionally
protected right …”).
Nor could such a holding be reconciled with the Supreme
Court’s decision in Paul v. Davis, 424 U.S. 693 (1976), from
which our stigma-plus line of cases descends. See Colaizzi, 542
F.2d at 973 (stating “[a]s we read Paul v. Davis, stigma to one’s
reputation, inflicted by the state, is not of itself a deprivation of
liberty within the meaning of the Fourteenth Amendment,”
and coining “stigma-plus” as shorthand for the standard of
Paul). In Paul, Edward Davis sued the Chiefs of Police of
Louisville and Jefferson County, Kentucky after they circulated
a “flyer” to nearly 800 merchants which included his name and
photograph under the moniker “Active Shoplifters.” At the
time the flyer had been distributed, the charges were merely
pending—Davis had not been convicted of shoplifting. The
charges were eventually dismissed, but not before Davis’s
supervisor had seen the flyer and, while not firing him, warned
him “he had best not find himself in a similar situation” in the
future.” Id. at 696. Davis sued the police chiefs, alleging among
other things that the flyer deprived him of liberty within the
meaning of the Fourteenth Amendment.
In considering Davis’s argument, the Supreme Court in
Paul analyzed a number of its prior cases which looked at
defamation by the government in a variety of contexts. After
12 No. 14-2254
summarizing the relevant precedent, the Supreme Court
stressed “[i]n each of these cases, as a result of the state action
complained of, a right or status previously recognized by state
law was distinctly altered or extinguished.” Id. at 711. The
Court continued: “It was this alteration, officially removing the
interest from the recognition and protection previously afford
by the State, which we found sufficient to invoke the proce-
dural guarantees contained in the Due Process Clause of the
Fourteenth Amendment.” Id. The Court then concluded that
because Paul did not “assert denial of any right vouchsafed to
him by the State, … [the defendant’s] defamatory publications,
however seriously they may have harmed [Paul’s] reputation,
did not deprive him of any ‘liberty’ or ‘property’ interests
protected by the Due Process Clause.” Id. at 712.
This analysis makes clear that to claim a deprivation of
liberty, the state must “distinctly alter” or “extinguish” a right
or status previously recognized by state law. Defamation
alone, even if it renders it “virtually impossible for the [indi-
vidual] to find new employment in his chosen field,” Townsend,
256 F.3d at 670, thus is not enough to invoke the procedural
safeguards of the Fourteenth Amendment. “Rather [a plain-
tiff’s] interest in reputation is simply one of a number which
the State may protect against injury by virtue of its tort law,
providing a forum for vindication of those interests by means
of damages actions.” Paul, 424 U.S. at 712.
Alternatively, Hinkle attempts to fit his case within this
Supreme Court precedent by arguing that the defendants’
defamatory statements altered his “legal status” by rendering
him unqualified to serve in law enforcement management. In
support of this argument, Hinkle cites 65 ILCS 5/10-2.16(j),
No. 14-2254 13
which provides: “No person shall be appointed to the police or
fire department unless he or she is a person of good character
and not an habitual drunkard, gambler, or a person convicted
of a felony or crime involving moral turpitude.” Hinkle argues
that the defendants’ defamation branded him a person not of
good character and thereby barred him from employment in
his chosen profession.
Hinkle’s argument is misplaced. The defendants did not
“distinctly alter” or “extinguish” Hinkle’s “legal status.” They
defamed him. They did not place Hinkle’s name on a list which
by statute removed a previously held right to serve in law
enforcement management. This situation thus contrasts
sharply with the cases involving an alteration in legal status.
For instance, in Wisconsin v. Constantineau, 400 U.S. 433 (1971),
on which Hinkle also relies, the defendants “posted” the
plaintiff’s name to a list which, by statute, removed his right to
purchase alcoholic beverages. Id. at 435. As the Supreme Court
explained, “it was that alteration of legal status, which,
combined with the injury resulting from the defamation,
justified the invocation of procedural safeguards.” Paul, 424
U.S. at 708–09 (emphasis added) (citing Constantineau, 400 U.S.
433).
Moreover, Hinkle received a license in Illinois to work as a
private investigator, and by statute he was required to be “of
good moral character” to qualify for such a license. 225 ILCS
447/15-10(a)(3).This fact further negates Hinkle’s claim that the
defendants’ defamation rendered him unqualified under
Illinois law to serve in law enforcement. For all of these
reasons, the defendants did not “distinctly alter” or “extin-
guish” Hinkle’s legal status and thus he has no liberty interest
14 No. 14-2254
for purposes of the Due Process Clause of the Constitution.4
Accordingly, the district court properly granted the defendants
summary judgment on Hinkle’s due process claim.
III.
Reading the facts in the light most favorable to Hinkle, the
defendants defamed him—horribly so. But the Due Process
Clause of the Constitution does not provide a remedy for
defamation, even of the worst kind. Rather, to establish his due
process claim, Hinkle needed to show a liberty interest with
which the defendants interfered. While there is a liberty
interest in following one’s trade or profession, the government
does not deprive a plaintiff of such an interest by defamation
alone. The defamation must combine with an alteration or
removal of a legal status. Hinkle did not show any alteration of
his legal status and thus cannot succeed on his due process
claim. Accordingly, the district court properly granted the
defendants summary judgment. We AFFIRM.
4
Hinkle also presented evidence that the defendants’ conduct caused
customers to stop patronizing a restaurant run by his son in which he had
a financial interest. But Hinkle did not present any evidence that the
defendants somehow altered his legal status in a way that would prevent
him from opening up, or investing in, another restaurant. Accordingly,
Hinkle also cannot show that the defendants violated any purported liberty
interest in the occupation of restaurateur.