Mark Gekas v. Peter Vasiliades , 814 F.3d 890 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1226
MARK GEKAS,
Plaintiff-Appellant,
v.
PETER VASILIADES, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:10-cv-03066-RM-TSH — Richard Mills, Judge.
ARGUED FEBRUARY 10, 2016 — DECIDED MARCH 1, 2016
Before BAUER, FLAUM, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Mark Gekas
(“Gekas”), filed suit against several individual members
of the Illinois Department of Financial and Professional
Regulation (hereinafter the “Department”), claiming they
retaliated against him in violation of his constitutional First
Amendment rights and were liable to him under the provisions
of 42 U.S.C. § 1983. Specifically, Gekas sued Peter Vasiliades,
2 No. 15-1226
Frank Maggio, Mary Ranieli, John Lagatutta,1 and John Krisko
(collectively the “Defendants”) for the claimed violations. The
Defendants filed a motion for summary judgment, which the
district court granted. Gekas appealed. For the reasons that
follow, we affirm.
I. BACKGROUND
To understand the crux of Gekas’ claims, we examine
events that occurred nearly thirty years ago. Gekas is a licensed
dentist practicing in Springfield, Illinois. In 1988, an investiga-
tor from the Department visited Gekas’ office. As part of the
investigation, Gekas met with Dr. Michael Vold (“Vold”), the
Department’s Dental Coordinator. Vold was concerned that
Gekas had administered nitrous oxide to a child. He ordered
Gekas to forward him information on all prescriptions that
Gekas issued on a continuing basis. Gekas believed Vold
mistreated him during the meeting.
Gekas contacted Deputy Governor Jim Riley for assistance
regarding the situation with Vold. Deputy Governor Riley
scheduled an informal hearing with the Department to discuss
the matter. After the meeting, the Department imposed less
onerous requirements on Gekas. Following this, there were no
further confrontations between Gekas and the Department for
about fourteen years.
In December 2002, a Department investigator, Peter
Vasiliades (“Vasiliades”), raided Gekas’ offices, with the
assistance of several agents from the Federal Drug Enforce-
1
The record is unclear whether his last name is spelled “Lagatutta” or
“Lagattuta.”
No. 15-1226 3
ment Agency. Gekas believed that Vold orchestrated the raid
to get back at him for speaking to the Deputy Governor in
1988. Following the raid, Gekas participated in two informal
meetings with the Department regarding the amount of
prescription pills he had dispensed. During the first informal
meeting, which may have occurred around August 2003,2
Dental Board member, Frank Maggio (“Maggio”), aggressively
questioned Gekas’ lawyer. The meeting concluded with an
offer to settle the charges against Gekas by imposing a six-
month suspension combined with continuing education
requirements. At the end of the meeting, Gekas believed that
Vold was in the building and involved with the matter, despite
the fact that Vold had been relieved of his position as Dental
Coordinator by that time. The second informal meeting, which
may have occurred in December 2003, resulted in a similar
settlement offer. Gekas refused to accept either proposal.
On May 19, 2004, the Department’s Medical Prosecutions
unit issued a Rule to Show Cause why a cease and desist order
should not be entered against Gekas based on the allegation
that he was treating a specific patient (referred to as “K.Y.”) for
a medical condition and for prescribing controlled substances
despite not being a licensed physician or surgeon. On May 26,
2004, Gekas answered the Department’s Rule to Show Cause.
On June 10, 2004, Department Director Fernando E. Grillo
issued a cease and desist order against Gekas for the
unlicensed practice of medicine based on his treatment of K.Y.
The order stated that Gekas had to immediately cease and
2
The record is devoid of exact dates regarding many of the events
underlying Gekas’ claims.
4 No. 15-1226
desist “the practice of medicine which includes, but is not
limited to, treating K.Y. for a medical condition and prescribing
controlled substances while not being a licensed Physician and
Surgeon.” On July 13, 2004, Gekas filed a complaint in the
Circuit Court of Cook County seeking administrative review
of the cease and desist order.
On June 16, 2004, Mary Doherty, the Department’s Chief of
Health Related Prosecutions, filed an administrative complaint
against Gekas concerning the same allegations set forth in the
cease and desist order. Specifically, the complaint alleged that
Gekas had prescribed over 4,600 doses of Hydrocodone and
Vicoprofen to K.Y. between January 5, 2001, and October 21,
2002. The complaint sought to have Gekas’ dental license,
controlled substance license, and dental sedation permit
“suspended, revoked, or otherwise disciplined.”
On July 11, 2003, Mary Ranieli replaced Vold as the
Department’s Dental Coordinator. Ranieli and Vold had a
contentious relationship with each other prior to her replacing
him. Ranieli testified that she never spoke with Vold about
Gekas. Sometime in the summer of 2004, the Department
refused to give Gekas credit for a continuing education course
in which he was enrolled. Gekas contacted Ranieli regarding
this refusal, and she initially assured Gekas that she would
investigate the matter. She was later instructed by the Depart-
ment’s counsel not to speak with him. After Gekas proceeded
to call Ranieli repeatedly throughout the summer, she finally
answered in August 2004 and informed him that she could not
speak to him. Ranieli also testified that she regularly did not
speak with dentists subject to Department investigations until
an investigatory conference had occurred.
No. 15-1226 5
Sometime in 2007, Gekas contacted Illinois State Senator
Larry Bomke regarding his situation with the Department.
State Senator Bomke agreed to help Gekas and scheduled a
meeting with John Lagatutta (“Lagatutta”), the Deputy
Director of the Department. However, Lagatutta had to cancel
the meeting due to inclement weather. The meeting was never
rescheduled.
On October 31, 2008, Department Director Daniel E.
Bluthardt issued an order vacating the 2004 cease and desist
order. On December 8, 2008, the Circuit Court of Cook County
entered an agreed order declaring the 2004 cease and desist
order null and void, and dismissing with prejudice Gekas’
complaint for administrative review.
In December 2008, Gekas submitted a Freedom of Informa-
tion Act (“FOIA”) request to obtain the documents concerning
the Department’s administrative complaint against him. On
December 30, 2008, the Department responded that the case
was closed and no public documents were available. In
February 2009, Gekas filed suit claiming that the Department
improperly denied his FOIA request. The lawsuit was eventu-
ally dismissed by stipulation on April 2, 2010.
In April 2009 and July 2009, John Krisko (“Krisko”), a
Chairman on the Illinois Board of Dentistry, issued subpoenas
against Gekas. The subpoenas indicated that there was
reasonable cause to believe that Gekas had violated the Illinois
Dental Practice Act, and required him to submit certain records
6 No. 15-1226
for inspection. Krisko testified that he had never spoken with
Vold prior to issuing the subpoenas.
On March 18, 2010, Gekas filed his federal suit against the
Defendants. On February 8, 2011, Gekas filed a second
amended complaint, which is the basis for this appeal. It
alleges that the Defendants violated his First Amendment right
to free speech because they retaliated against him by issuing
the cease and desist order, filing the administrative complaint,
raiding his office, and refusing to allow anyone at the Depart-
ment to speak with him about his concerns. He claims that the
protected speech involved included his 1988 conversations
with the Deputy Governor, his 2007 conversations with State
Senator Bomke, and his 2009 FOIA request.
The Defendants moved for summary judgment, which the
district court granted on January 8, 2015. The district court
assumed that Gekas “engaged in protected activity and
suffered a constitutional deprivation,” but still found that
Gekas did not meet his prima facie burden because there was no
evidence that any of the Defendants had a retaliatory motive.
Instead, Gekas only presented “speculation or conjecture.”
Gekas appealed.
Gekas limits the issue on appeal to “whether the district
court should have granted summary judgment on the issue of
causation as it relates to the prosecution of Gekas that occurred
between 2004 and 2008.” His brief, however, addresses only
whether the Defendants imposed the 2004 cease and desist
order and filed the 2004 administrative complaint for retalia-
tory purposes. Since the retaliatory acts at issue both occurred
in 2004, the only relevant speech that could form the basis
No. 15-1226 7
for Gekas’ First Amendment retaliation claims are his 1988
conversations with the Deputy Governor. Therefore, we must
determine whether summary judgment was appropriate for
Gekas’ claims that the Defendants imposed the 2004 cease and
desist order and issued the 2004 administrative complaint to
retaliate against him for his 1988 conversations with the
Deputy Governor.
II. DISCUSSION
We review the district court’s grant of summary judgment
de novo in the light most favorable to Gekas; but, this “does not
extend to drawing inferences that are supported by only
speculation or conjecture.” Dawson v. Brown, 803 F.3d 829,
832–33 (7th Cir. 2015) (citations and internal quotation omit-
ted). Summary judgment is appropriate where the moving
party shows that no genuine dispute of material fact exists and
that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
The Defendants argue that Gekas’ First Amendment
retaliation claims are not timely under the statute of limita-
tions. In addition, the Defendants argue that, regardless, Gekas
has failed to present any evidence that there was a retaliatory
motive underlying the cease and desist order or the adminis-
trative complaint. We will address both issues separately to
determine whether summary judgment was appropriate.
A. Statute of Limitations
The statute of limitations for § 1983 claims in Illinois is two
years. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011)
(citing 735 ILCS 5/13-202 and Jenkins v. Vill. of Maywood, 506
8 No. 15-1226
F.3d 622, 623 (7th Cir. 2007)). Federal law, however, governs
the accrual date for § 1983 claims, which is when the plaintiff
“knows or should know that his or her constitutional rights
have been violated.” Hileman v. Maze, 367 F.3d 694, 696 (7th
Cir. 2004) (citations and internal quotation omitted).
Generally, the statute of limitations clock begins to run on
First Amendment retaliation claims immediately after the
retaliatory act occurred. See Mosely v. Bd. of Educ. of City of Chi.,
434 F.3d 527, 535 (7th Cir. 2006) (finding plaintiff’s First
Amendment retaliation claim was not time-barred, to the
extent that it was based on retaliatory acts that occurred within
two years of when she filed suit); see also Northern v. City of
Chicago, 126 F.3d 1024, 1025–26 (7th Cir. 1997) (finding
plaintiff’s First Amendment retaliation claim was time-barred
under the two-year statute of limitations because the retalia-
tory acts began in 1988 and concluded by November 1991, yet
the complaint was filed in November 1993). In this case, the
retaliatory acts at issue are the June 10, 2004, cease and desist
order and the June 16, 2004, administrative complaint. As a
result, Gekas’ complaint had to be filed at least by June 16,
2006. His March 18, 2010, complaint is clearly time-barred.
Gekas attempts to rescue his untimely claims by analo-
gizing them to the tort of malicious prosecution. He broadly
argues that any “retaliatory court action” does not accrue until
the proceedings conclude in favor of the plaintiff, which in
this case was either in October 2008, when the Department
vacated the 2004 cease and desist order, or in December 2008,
when the Circuit Court of Cook County entered the agreed
No. 15-1226 9
order declaring the cease and desist order null and void.3
Gekas relies primarily on Parish v. City of Elkhart, 614 F.3d 677
(7th Cir. 2010) to support his argument.
First Amendment retaliation claims and malicious prosecu-
tion claims are fundamentally different causes of action. We do
not apply the statute of limitations analysis for malicious
prosecution claims to this case merely because Gekas now
characterizes his First Amendment retaliation claim on appeal
as actually a claim for “retaliatory prosecution.”4
Furthermore, even if we indulged Gekas’ argument, his
claims still fail under the analysis he requests this court to
undertake. In Parish, we discussed the framework for deter-
mining when a cause of action requires a favorable disposition
of a prior conviction before the plaintiff’s claim accrues,
pursuant to the Supreme Court’s decisions in Heck v.
Humphrey, 512 U.S. 477 (1994) and Wallace v. Kato, 549 U.S. 384
(2007).
If the claimed tort occurred and was completed
before the conviction … the claims accrue immedi-
ately upon the completion of the tort. If the claimed
tort continued through, or beyond, the point of
3
Gekas’ statute of limitations argument in his reply brief focused solely on
the 2004 cease and desist order, and did not discuss whether his claims
based on the 2004 administrative complaint were timely. Thus, that issue
is waived. Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005)
(“Perfunctory or undeveloped arguments are waived.”) (citations omitted).
4
At oral argument, Gekas’ counsel conceded that there is no tort of
retaliatory prosecution.
10 No. 15-1226
conviction, the court must ask whether the claims
would directly implicate the validity of the convic-
tion. If the claims would not directly implicate the
validity of the conviction, the court should follow
the standard discovery rule … . If the claim would
directly implicate the validity of the conviction, then
Heck … come[s] into play and the claim does not
accrue until the conviction has been disposed of in a
manner favorable to the plaintiff.
Parish, 614 F.3d at 683.
Although the 2004 cease and desist order is not a convic-
tion, if we assume for purposes of this analysis that it is a
conviction and that Gekas’ First Amendment retaliation claims
continued beyond the point of conviction (as would be the case
with a claim for malicious prosecution), his claims are still
time-barred because they do not implicate the validity of the
2004 cease and desist order. The Department issued the cease
and desist order against Gekas for treating and prescribing
drugs to K.Y. for a medical condition without possessing a
proper physician and surgeon license. Gekas does not argue
that he actually was treating a dental condition or that he did
have the proper license. Rather, he claims that the Department
only issued the order because it desired to retaliate against him
for his 1988 conversations with the Deputy Governor. There-
fore, Gekas did not have to wait for the order to be set aside
before his claims accrued. See Evans v. Poskon, 603 F.3d 362,
363–64 (7th Cir. 2010).
No. 15-1226 11
B. First Amendment Retaliation
Although Gekas’ claims are time-barred, they also fail on
their merits because he has produced no evidence of any
retaliatory motive underlying either the cease and desist order
or the administrative complaint. In order for Gekas to establish
a prima facie § 1983 claim for First Amendment retaliation, he
must show that: “(1) he engaged in activity protected by the
First Amendment, (2) he suffered an adverse action that would
likely deter future First Amendment activity, and (3) the First
Amendment activity was ‘at least a motivating factor’ in the
defendants' decision to retaliate.” Santana v. Cook Cnty. Bd. of
Review, 679 F.3d 614, 622 (7th Cir. 2012) (citations omitted).
Gekas argues that there was sufficient circumstantial
evidence to infer a retaliatory motive. He also claims that since
the Defendants have not explained why they took these actions
against him, we must infer a retaliatory motive.
There are two problems with Gekas’ argument. First, his
claim that the Defendants have not explained why they took
these actions is false. Both the 2004 cease and desist order and
the 2004 administrative complaint state that they were issued
because Gekas improperly prescribed K.Y. controlled sub-
stances to treat a medical condition. Gekas has offered no
evidence to rebut this explanation.
Second, the circumstantial evidence in this case is woefully
insufficient to withstand summary judgment. Gekas deliber-
ately limited the scope of his appeal to events that occurred
between 2004 and 2008. Yet, there are no allegations that
Vasiliades, Maggio, or Krisko undertook any relevant actions
against Gekas during this timeframe. In addition, there is no
12 No. 15-1226
evidence connecting Lagatutta or Ranieli to either the cease
and desist order or the administrative complaint. In fact, the
record indicates that Fernando E. Grillo issued the cease and
desist order and Mary Doherty issued the administrative
complaint, neither of whom are named defendants in this
action.
Finally, Gekas has not shown that Ranieli’s refusal to speak
with him in August 2004 or Lagatutta’s refusal to reschedule
their meeting in 2007 were in any way related to his 1988
conversations with the Deputy Governor. Therefore, Gekas has
failed to establish a prima facie case for First Amendment
retaliation. See Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir.
2013) (finding that a plaintiff’s speculation cannot create a
genuine issue of material fact regarding retaliatory motive).
“As we have said before, summary judgment is the ‘put up
or shut up’ moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to
accept its version of events.” Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 901 (7th Cir. 2003) (internal quotation and citation
omitted). Given Gekas’ complete inability to connect the events
that happened to him in 2004 to the conversations he had in
1988, his First Amendment retaliation claims cannot withstand
summary judgment.
III. CONCLUSION
Therefore, for the foregoing reasons, the judgment of the
district court is AFFIRMED.