Theophilus Green v. Mary Ann Benden

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-1328, 01-2399
THEOPHILUS GREEN,
Plaintiff-Appellant,
v.
MARY ANN BENDEN, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6002--Wayne R. Andersen, Judge.
Submitted December 14, 2001--Decided February 21, 2002
Before Fairchild, Diane P. Wood, and
Williams, Circuit Judges.
Williams, Circuit Judge. Theophilus
Green sued under 42 U.S.C. sec.sec. 1981
and 1983, alleging that the Illinois
Department of Professional Regulation
("DPR") and two DPR attorneys
(collectively, the "Illinois Defendants")
violated his rights to due process and
equal protection in bringing
administrative disciplinary proceedings
against him to suspend his clinical
psychologist’s license. Dr. Green also
asserted a claim under 42 U.S.C. sec.
1985 for civil conspiracy against the DPR
and Health Care Service Corporation
("HCSC"). The district court dismissed
some of Dr. Green’s claims and granted
summary judgment to the defendants on the
remaining claims. Dr. Green appeals, and
we affirm in part and vacate in part.
I. Factual Background
Dr. Green, an African American, received
a degree in clinical psychology in 1982
and from then until 1989 practiced
clinical psychology in Illinois without a
license. In 1990 Dr. Green passed the
Illinois clinical psychologist’s
examination and obtained a license.
In 1996 the DPR instituted disciplinary
proceedings against Dr. Green, alleging

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that he had violated Illinois law by
practicing clinical psychology without a
license and by making false statements on
another psychologist’s licensing
application forms. After a hearing the
DPR’s disciplinary board suspended Dr.
Green’s license for a minimum of two
years and imposed various conditions on
its reinstatement. The disciplinary board
also barred Dr. Green from supervising
prospective licensees as long as his
license was suspended and fined him
$8,000. Thereafter, HCSC, which required
psychologists to be licensed as a
prerequisite to reimbursement, ceased all
payments to Dr. Green for services that
he rendered to its insureds.
Dr. Green sought administrative review
in state court; the Circuit Court of Cook
County, Illinois, upheld the suspension
but vacated the fine. Dr. Green appealed
to the Illinois Appellate Court.
Dr. Green’s state-court appeal was still
pending when in September 1999 he filed
this lawsuit. Dr. Green alleged that the
Illinois Defendants violated his rights
to due process and equal protection by
targeting him for disciplinary action
based on his race and in retaliation for
his testimony in another disciplinary
hearing that was favorable to the
psychologist under investigation. Dr.
Green further alleged that HCSC and the
DPR had conspired "to deny [him] the
opportunity to . . . practice his
profession" based on his race because
HCSC (1) refused to reimburse him for
services he rendered to its insureds, and
(2) provided his patients’ confidential
medical reports and other unspecified
information to the Federal Bureau of
Investigation in response to grand jury
subpoenas. Dr. Green also asserted claims
against the Wisconsin Department of
Professional Regulation and certain of
its representatives, but those claims are
not a part of this appeal. Dr. Green
sought a declaration that the DPR
disciplinary proceedings were illegal and
an award of damages. In November 1999 Dr.
Green also sought a preliminary
injunction ordering the DPR to restore
his license.
II. The District Court Proceedings
In April 2000 the district court denied

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Dr. Green’s request for injunctive
relief. The court concluded that Dr.
Green had not demonstrated a likelihood
of success on the merits because he
presented no evidence that the DPR
proceedings were racially motivated.
In September the court entered orders
dismissing some of Dr. Green’s claims and
granting summary judgment to the
defendants on the remaining claims.
Specifically, the court dismissed the
entire suit against the DPR and its
attorneys in their official capacities,
concluding that they were immune under
the Eleventh Amendment of the United
States Constitution. The court granted
summary judgment in favor of HCSC as to
the civil conspiracy claim, concluding
that Dr. Green presented no evidence that
HCSC’s actions were motivated by racial
animus. Finally, the court granted
summary judgment to the DPR attorneys in
their individual capacities, a ruling
that Dr. Green does not challenge on
appeal.
In January 2001 the district court
entered a partial judgment under Federal
Rule of Civil Procedure 54(b) as to HCSC.
Dr. Green timely filed a notice of
appeal, which was assigned docket number
01-1328. In June 2001 the district court
entered a partial judgment under Rule
54(b) as to the Illinois Defendants. Dr.
Green timely filed a notice of appeal,
which was assigned docket number 01-2399.
We consolidated the appeals on our own
motion.
III. Analysis
On appeal Dr. Green challenges the
district court’s denial of injunctive
relief and the grant of summary judgment
as to his civil conspiracy claim. Dr.
Green also contends that the district
court erred in failing to enter a default
judgment in favor of his co-plaintiffs.
At the outset, we dispense with Dr.
Green’s default judgment argument. Any
claims that Dr. Green’s co-plaintiffs,
Associated Psychological Services and
Psychological Solutions, P.C., might
otherwise have are not before us. The co-
plaintiffs were unrepresented before the
district court, which never decided any
of their claims. Additionally, the co-
plaintiffs are unrepresented before this
court and have not filed notices of

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appeal on their own behalf. See Lewis v.
Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31
(7th Cir. 1986). We therefore limit our
review to Dr. Green’s remaining arguments
on appeal.
A. Civil Conspiracy
Dr. Green’s argument is difficult to
grasp, but he appears to contend that the
district court erred in granting summary
judgment by ignoring evidence that
establishes the existence of a conspiracy
between HCSC and the DPR. First, Dr.
Green highlights two affidavits--one from
Allen Piening, the psychologist in whose
disciplinary hearing Dr. Green testified,
and one from J. Chris Goodman, Dr.
Piening’s attorney. Dr. Green argues that
these affidavits show that the DPR
targeted him for prosecution based on his
race. Second, Dr. Green claims that he
presented evidence that HCSC breached an
unspecified legal duty to investigate the
DPR’s charges and assist him in
establishing that he was immune from the
disciplinary proceedings.
We first note that the district court
relied on documents extraneous to the
complaint but nonetheless analyzed the
conspiracy claim in the context of a
motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Thus, the court
effectively converted HCSC’s motion to
dismiss into one for summary judgment,
see Fed. R. Civ. P. 12(c), but the record
is not clear as to whether the court gave
Dr. Green the requisite notice of
conversion and an opportunity to respond,
see id.; Massey v. Helman, 259 F.3d 641,
646 n.8 (7th Cir. 2001). The procedural
oversight, assuming it exists, does not
require reversal if there is nothing that
Dr. Green could have submitted to the
court that would have created a genuine
issue of fact, see id., and that is the
case here. The district court granted Dr.
Green an evidentiary hearing and
repeatedly allowed him to submit new
evidentiary materials in support of his
conspiracy claim. In our de novo review,
we construe the evidence in the light
most favorable to Dr. Green, drawing all
reasonable inferences in his favor.
Velasco v. Ill. Dep’t of Human Servs.,
246 F.3d 1010, 1016 (7th Cir. 2001).
To establish a claim for civil

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conspiracy under sec. 1985(3), a
plaintiff must demonstrate (1) the
existence of a conspiracy, (2) a purpose
of depriving a person or class of persons
of equal protection of the laws, (3) an
act in furtherance of a conspiracy, and
(4) an injury to person or property or a
deprivation of a right or privilege
granted to U.S. citizens. Hernandez v.
Joliet Police Dep’t, 197 F.3d 256, 263
(7th Cir. 1999). The plaintiff also must
show some racial, or otherwise
class-based, invidiously discriminatory
animus behind the conspirators’ actions,
and that the conspiracy aimed at
interfering with rights that are
protected against private, as well as
official, encroachment. Majeske v.
Fraternal Order of Police, Local Lodge
No. 7, 94 F.3d 307, 311 (7th Cir. 1996).
To establish the existence of a
conspiracy, a plaintiff must show that
the conspirators agreed to inflict injury
upon him; in other words, that they acted
with a single plan, the general nature
and scope of which was known to each
conspirator. Hernandez, 197 F.3d at 263.
Agreement may be inferred from
circumstantial evidence, but only if it
is sufficient to permit a reasonable jury
to conclude that a meeting of the minds
had occurred and that the parties had an
understanding to achieve the conspiracy’s
objectives. Id.
The record contains no evidence that
anyone representing HCSC had any
relationship or contact with anyone
representing the DPR before or during the
disciplinary proceedings, let alone
specifically agreed to injure Dr. Green.
Mr. Goodman’s and Dr. Piening’s
affidavits are not evidence of a
conspiracy; they do not mention HCSC and
are limited to the affiants’ observations
about Dr. Piening’s and Dr. Green’s
disciplinary hearings. Nor do the
affidavits contain anything to suggest
that the Illinois Defendants targeted Dr.
Green based on his race. Similarly, Dr.
Green’s bare assertion that HCSC breached
a legal duty to help him develop an
immunity defense to the disciplinary
proceedings, while being legally
unsupportable, in no way suggests
collusion with the DPR. Dr. Green cannot
establish the existence of a conspiracy,
and summary judgment was appropriate for
that reason. Thus, we need not analyze
the other shortcomings of his claim.

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B. The Illinois Defendants
We do not reach the merits of Dr.
Green’s challenge to the denial of his
request for injunctive relief because we
agree with the Illinois Defendants that
the district court should have abstained
under Younger v. Harris, 401 U.S. 37
(1971), and its progeny. The Younger
abstention doctrine requires federal
courts to abstain from enjoining ongoing
state proceedings that are (1) judicial
in nature, (2) implicate important state
interests, and (3) offer an adequate
opportunity for review of constitutional
claims, (4) so long as no extraordinary
circumstances exist which would make
abstention inappropriate. Middlesex
County Ethics Comm’n v. Garden State Bar
Ass’n, 457 U.S. 423, 432, 436-37 (1982);
Majors v. Engelbrecht, 149 F.3d 709, 711
(7th Cir. 1998).
As an initial matter, we reject Dr.
Green’s argument on appeal that the DPR
waived its Younger argument. We recognize
that a state may waive Younger
abstention, see Ohio Bureau of Employment
Servs. v. Hodory, 431 U.S. 471, 477-80
(1977); Kendall-Jackson Winery, Ltd. v.
Branson, 212 F.3d 995, 997 (7th Cir.
2000), but our review of the record
reveals that in responding to Dr. Green’s
complaint and request for injunctive
relief the Illinois Defendants repeatedly
requested that the district court abstain
under Younger.
The Younger factors all favor
abstention. First, Dr. Green’s state-
court administrative review action, which
plainly is judicial in nature, was
pending when he filed this lawsuit.
Whether the state action is still pending
does not matter for our purposes, see
Majors, 149 F.3d at 712, although as far
as we know it is still pending.
Second, the DPR proceedings implicate
important state interests in the
regulation and licensing of
mentalhealthcare professionals. See
Majors, 149 F.3d at 713 ("That the
regulation and licensing of healthcare
professionals is an important matter of
state concern is beyond dispute.").
Third, state-court administrative review
of the DPR proceedings constitutes an

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adequate opportunity for Dr. Green to
raise his due process and equal
protection challenges. See Ohio State
Civil Rights Comm’n v. Dayton Christian
Schs., Inc., 477 U.S. 619, 629 (1986).
This is because under Illinois law, Dr.
Green could have brought these challenges
along with his claim for administrative
review. See Stykel v. City of Freeport,
742 N.E.2d 906, 914 (Ill. App. Ct. 2001);
Nelson v. Murphy, 44 F.3d 497, 502 (7th
Cir. 1995). It matters not whether Dr.
Green actually presented these challenges
in state court. "[W]hen a litigant has
not attempted to present his federal
claims in related state-court
proceedings, a federal court should
assume that the state procedures will af
ford an adequate remedy." Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 15 (1987).
Finally, Dr. Green does not claim that
any extraordinary circumstances exist
that make abstention inappropriate. See
Ramsden v. AgriBank, FCB, 214 F.3d 865,
871 (7th Cir.) (party claiming
extraordinary circumstances must
demonstrate their existence), cert.
denied, 531 U.S. 1036 (2000).
The district court should have
abstained, and the only remaining
question is how--by dismissing or merely
staying the action. A stay is appropriate
when a plaintiff is foreclosed from
bringing his damages claims in the state
proceeding. See Majors, 149 F.3d at 714;
Simpson v. Rowan, 73 F.3d 134, 138-39
(7th Cir. 1995). But here Dr. Green could
have brought his claim for damages along
with his claim for administrative review.
See Stykel, 742 N.E.2d at 914; Nelson, 44
F.3d at 502. We thus conclude that
dismissal, rather than a stay of the
claims against the Illinois Defendants,
was appropriate here.
Accordingly, the district court’s
decision is AFFIRMED as to Dr. Green’s
civil conspiracy claim against HCSC. The
district court’s order as to the Illinois
Defendants is VACATED and this case is
REMANDED with directions to dismiss under
Younger v. Harris as to the Illinois
Defendants. Dr. Green’s Petition For
Certification of State Law Question,
filed on May 24, 2001, is DENIED as moot.

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