# Salem v. Larkin

> District Court, N.D. Illinois · November 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10147969

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** November 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAURICE JAMES SALEM, )
)
Plaintiff, )
)
v. ) No. 20-CV-06531
)
JEROME LARKIN, officially and Judge John J. Tharp, Jr.
)
individually, and ILLINOIS
)
ATTORNEY REGISTRATION AND
)
DISCIPLINARY COMMISSION, an
)
Illinois state agency,
)
Defendants.
MEMORANDUM OPINION AND ORDER
Maurice James Salem sues the Illinois Attorney Registration and Disciplinary
Commission (“ARDC”), and its Administrator, Jerome Larkin, alleging that defendants’
constitutional violations led to his suspension from the practice of law. Salem also alleges that
defendants violated the Equal Protection Clause by posting a false disciplinary summary about
him on the ARDC website. Lacking jurisdiction pursuant to the Rooker-Feldman doctrine, the
Court dismisses the claims challenging Salem’s suspension. That doctrine does not deny the
Court jurisdiction over Salem’s false-publication claim, but that claim fails on the pleadings
because Salem has failed to foreclose a conceivable rational purpose for posting that summary. It
is entirely plausible that defendants sought to inform the public of Salem’s disciplinary status
pursuant to a reasonable interpretation of the Illinois Supreme Court’s decision to suspend him.
The Court therefore dismisses with prejudice Salem’s false publication claim under Federal Rule
of Civil Procedure 12(b)(6). Judgment will be entered for the defendants.
BACKGROUND1
Salem is an attorney who resides in New York and Illinois. Although Salem is licensed to
practice law New York, he is not admitted to the Illinois bar. Salem has represented parties in
Illinois courts on a pro hac vice basis. Rule 707 of the Illinois Supreme Court Rules allows out-
of-state attorneys like Salem to appear in Illinois state courts and outlines the rules and

procedures for such appearances. That rule also subjects out-of-state attorneys appearing pro hac
vice to the authority of the Illinois Supreme Court and the ARDC. Under Rule 707(j), the ARDC
Administrator may institute disciplinary proceedings against out-of-state attorneys for the
unauthorized practice of law.
In 2015, an ARDC attorney moved to terminate Salem’s permission to appear pro hac
vice in several state-court cases, based upon Salem’s alleged misrepresentations about his
licensure in Illinois. Contending that the ARDC’s factual allegations were false, Salem sued the
ARDC attorney, as well as the ARDC and defendant Larkin, in federal court. Salem v. Kozlov,
No. 15 C 8997, 2016 WL 4169102, at *2 (N.D. Ill. Aug. 8, 2016). The judge presiding over that
case granted the defendants’ motion to dismiss without prejudice.

In April 2016, while the federal court proceeding was pending, the ARDC filed a
disciplinary complaint against Salem, alleging that Salem was falsely holding himself out as an
Illinois attorney. A hearing proceeded before the ARDC’s Hearing Board, which considers

1 In summarizing the relevant background facts, the Court accepts as true the well-
pleaded allegations in Salem’s complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court
may also consider matters of public record without converting a motion to dismiss into a motion
for summary judgment. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,
1080-81 (7th Cir. 1997). The Court takes judicial notice of the filings in Salem’s ARDC and
Illinois Supreme Court proceedings because those documents are matters of public record. See
Bilal v. Wolf, No. 06 C 6978, 2009 WL 1871676, at *1 (N.D. Ill. June 25, 2009); Bartoli v. Att’y
Registration & Disciplinary Comm’n, No. 97 C 3412, 1998 WL 100246, at *1 (N.D. Ill. Feb. 24,
1998).
evidence and makes findings of fact in disciplinary matters. Ill S. Ct. R. 753(c)(3). In its
discretion, the Hearing Board may also recommend that the Illinois Supreme Court impose
discipline upon an attorney. Id. In Salem’s case, the Hearing Board issued a report in October
2017, finding that Salem had inadvertently misrepresented to an Illinois state-court judge that he
was an Illinois attorney but that he did not commit any other professional misconduct.

Accordingly, the Hearing Board recommended censure but no further discipline. The Chicago
Law Bulletin reported on the Hearing Board’s recommendation in Salem’s case. In the article,
Salem criticized the ARDC for the proceedings against him, remarking that “[e]verybody knows
that something is wrong with the ARDC, but nobody is publishing it.” Compl. Ex. B. at 4, ECF.
No. 1.
Salem’s disciplinary case did not end with the Hearing Board’s action. Any party to a
disciplinary hearing—including the ARDC—may appeal to the ARDC’s Review Board. Ill S. Ct.
R. 753(d)(2). As its name suggests, the Review Board is the ARDC’s appellate body tasked with
reviewing the Hearing Board’s findings. Ill S. Ct. R. 753(d)(3). Larkin, in his capacity as the

ARDC Administrator, appealed the Hearing Board’s decision, seeking Salem’s suspension for
ninety days and until further court order. On October 31, 2018, however, the Review Board
affirmed the Hearing Board findings and agreed with the censure recommendation.
One further avenue of appeal is available to parties seeking review of disciplinary
proceedings. Either party to a disciplinary proceeding may file a Petition for Leave to File
Exceptions (“PLE”) to the Illinois Supreme Court. Ill S. Ct. R. 753(e)(1). A party filing a PLE
must explain to the Supreme Court not only why the Supreme Court should review the petition
but also why the Review Board’s decision was incorrect. Ill S. Ct. R. 753(e)(3). If the Supreme
Court allows exceptions, it may “enter a final order as recommended by the Review Board or as
otherwise determined by the Court;” remand the case back to the Hearing Board or Review
Board; or accept the matter for further consideration and invite further briefing. Ill S. Ct. R.
753(e)(5). A party opposing the PLE has an opportunity to file an answer explaining why the
petition should not be granted. Ill S. Ct. R. 753(e)(4).
In Salem’s case, Larkin filed a PLE before the Illinois Supreme Court, again arguing that

Salem should be suspended from practicing law for ninety days until further order of the court
for wrongfully holding himself out as an Illinois attorney. Salem did not answer Larkin’s PLE.
The Illinois Supreme Court allowed Larkin’s exceptions but did not accept the matter for further
consideration. Instead, the court entered a final order suspending Salem from practicing law for
ninety days or until further order. The Illinois Supreme Court did not explain the basis for its
order.2
After the Illinois Supreme Court suspended Salem, the ARDC posted a summary of
Salem’s disciplinary proceedings under his profile on its website. The summary explains that
“the Supreme Court of Illinois suspended [Salem] for ninety days and until further order of the

Court for dishonestly holding himself out to the public as an Illinois lawyer.” Compl. Ex. A,
ECF. No. 1.
Salem sued the ARDC and Larkin, in his official and individual capacities, in this Court.
His complaint purports to assert three “causes of action,” but no such creatures exist in federal
pleadings. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“‘Cause of
action’ does not appear in the Rules of Civil Procedure, which uses ‘claim for relief’ to denote a
rejection of both common law and code approaches” to pleading practice). What Salem denotes

2 Pursuant to the Illinois Supreme Court’s order, Salem had to seek reinstatement after
the suspension period expired. At the time Salem filed this lawsuit, the Hearing Board had
rejected Salem’s reinstatement request and Salem was appealing that decision to the Review
Board.
as “causes of action” are legal theories that assertedly provide a basis for the legal relief sought
by Salem’s claims. “Complaints plead claims, which is to say grievances.” ACF 2006 Corp. v.
Mark C. Ladendorf, Att'y at L., P.C., 826 F.3d 976, 981 (7th Cir. 2016). “A claim is the
aggregate of operative facts which give rise to a right enforceable in the courts.” Florek v.
Village of Mundelein, 649 F.3d 594, 599 (7th Cir. 2011) (cleaned up).

As the opening of his complaint sets forth (albeit unintentionally), Salem asserts two
claims. Compl. ¶ 1, ECF No. 1 (“This … action is based on two (2) separate and distinct acts
performed by the Defendants”). The first claim is based on publication of the disciplinary
summary on the ARDC website (id. ¶ 2); the second, on his suspension from practicing law (id. ¶
3). As to the publication claim, Salem asserts that it entitles him to relief because the publication
violated the Equal Protection Clause. Salem alleges that his suspension and subsequent
reinstatement proceedings violated both his substantive and procedural due process rights. Salem
seeks damages as well as an injunction directing defendants to remove the disciplinary summary
from the ARDC website.

Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), asserting that the Court lacks jurisdiction over Salem’s claims and that Salem fails to
state a claim for relief. Salem abandoned his procedural due process theory in his response and
sur-reply briefs, agreeing with the defendants that “the Third Cause of Action can be dismissed”
under Rule 12(b)(1) pursuant to the Rooker-Feldman doctrine. Pl.’s Sur-Reply at 7, ECF No. 36;
see also Pl.’s Resp. at 6-7, ECF No. 32. Salem has therefore failed to meet his burden of showing
that the Court has subject-matter jurisdiction over the claims supporting his “Third Cause of
Action,” namely that defendants violated his procedural due process rights during his suspension
and subsequent reinstatement proceedings. See City of Evanston v. Barr, 412 F. Supp. 3d 873,
880 (N.D. Ill. 2019). The Court therefore addresses only his remaining claims.
DISCUSSION
When faced with both a motion to dismiss for lack of jurisdiction and a motion for failure
to state a claim, a court must address the threshold jurisdictional issues presented under Rule

12(b)(1) first. See Chen v. Yellen, No. 3:20-CV-50458, 2022 WL 2818709, at *2 (N.D. Ill. July
19, 2022). Accordingly, the Court begins with jurisdiction.
I. Subject-Matter Jurisdiction
In evaluating a 12(b)(1) motion, this Court accepts as true all well-pleaded factual
allegations and draws reasonable inferences in the plaintiff’s favor. Ezekiel v. Michel, 66 F.3d
894, 897 (7th Cir. 1995). To evaluate jurisdictional facts, however, the Court may also look
beyond the complaint to any evidence submitted on the issue. Capitol Leasing Co. v. F.D.I.C.,
999 F.2d 188, 191 (7th Cir. 1993) (per curiam). The Court looks to Salem’s allegations, as well
as the exhibits submitted by both parties, in assessing jurisdiction.
Defendants argue that the Court lacks jurisdiction over Salem’s claims pursuant to the
Rooker-Feldman doctrine. Under that doctrine, no federal court, apart from the Supreme Court,

may exercise jurisdiction to review a state court decision. Nesses v. Shepard, 68 F.3d 1003, 1004
(7th Cir. 1995) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983)).3 The Rooker-Feldman doctrine is a
corollary to Congress’s grant of exclusive appellate jurisdiction over final state-court judgements

3 As the Seventh Circuit has confirmed, “[s]pecific congressional authorization of
collateral review of state court judgments is the exception to this rule. For example, habeas corpus
under 28 U.S.C. § 2241 provides for collateral review of state court judgments by inferior federal
courts and is an exception to the general principle of Rooker–Feldman.” Garry v. Geils, 82 F.3d
1362, 1365 n.4 (7th Cir. 1996).
to the U.S. Supreme Court. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
283 (2005); 28 U.S.C. § 1257. Rooker-Feldman therefore automatically bars any claim that
facially seeks to set aside a final state-court judgment. See Taylor v. Fed. Nat’l Mortg. Ass’n, 374
F.3d 529, 532 (7th Cir. 2004).
Rooker-Feldman also prohibits another type of claim that impedes upon the Supreme

Court’s appellate jurisdiction over state court decisions: one that is “inextricably intertwined”
with a state court judgement. Id. at 532-33. Even if a party is not directly seeking to overturn a
state-court judgment, a federal court must decline to exercise jurisdiction if it is “in essence
being called upon to review the state-court decision.” Levin v. Att’y Registration & Disciplinary
Comm’n of Supreme Ct. of Illinois, 74 F.3d 763, 766 (7th Cir. 1996) (quoting Feldman, 460 U.S.
at 483–84 n.16). In this inquiry, the cause of plaintiff’s injury is key. See Commonwealth Plaza
Condo. Ass’n v. City of Chicago, 693 F.3d 743, 746 (7th Cir. 2012); Holt v. Lake Cnty. Bd. of
Comm’rs, 408 F.3d 335, 336 (7th Cir. 2005). If a state-court judgment caused the injury that the
plaintiff asks a federal court to redress, a federal court would have to review that judgment to

provide relief. But that would involve impermissible appellate review that Rooker-Feldman
prohibits. By contrast, an injury that occurs independently of the state-court judgment does not
require review of that judgment and is therefore redressable by a federal court. Exxon Mobil, 544
U.S. at 293; Long v. Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir. 1999). The Court thus
examines Salem’s claims and determines whether the Illinois State Court decision to suspend
him caused his alleged injuries.
Salem first alleges that defendants violated the Equal Protection Clause by publishing a
false statement about Salem on the ARDC website. The published statement is false, according
to Salem, because the ARDC Hearing and Review Boards did not find the misconduct that the
ARDC alleged, and the Illinois Supreme Court did not explicitly affirm that factual finding.
Salem alleges that defendants published the statement to harass him in retaliation for his lawsuit
against and criticism of the ARDC.
Setting aside, for now, the merits of Salem’s false-publication claim, that claim does not
implicate the Rooker-Feldman doctrine. “The Rooker-Feldman doctrine applies when the state

court’s judgment is the source of the injury of which plaintiffs complain in federal court.”
Richardson v. Koch L. Firm, P.C., 768 F.3d 732, 733 (7th Cir. 2014). Here, the source of
Salem’s claimed injury—the alleged falsity of the published statement—does not hinge upon the
Illinois Supreme Court’s actions in granting Larkin’s PLE. Evaluating the truth of the ARDC’s
statement about Salem would perhaps involve examining the Illinois Supreme Court decision,
but it would not require the Court to review state-court action. Whatever the reasoning behind
the Illinois Supreme Court’s decision, the ARDC’s allegedly misleading portrayal of the
decision, rather than the decision itself, caused Salem’s alleged reputational injury. Because his
injury exists independently from the state-court judgment, the Rooker-Feldman doctrine, at least,

does not bar Salem’s claim based upon defendants’ allegedly false publication.
The doctrine does, however, doom Salem’s claims challenging his suspension. Salem
alleges that the defendants violated the Equal Protection Clause by vindictively suspending him
and violated his substantive due process rights by suspending him from the practice of law in
Illinois sua sponte. Although Salem sues the ARDC and Larkin, rather than the Illinois Supreme
Court, these claims challenge action by the Illinois Supreme Court—namely, his suspension.4

4 Although Salem alleges that the Illinois Supreme Court suspended his law license, that
is a mischaracterization of the state Supreme Court’s order. Salem was never admitted to the
Illinois bar, so he never had an Illinois law license that the Illinois Supreme Court could suspend.
Instead, the Illinois Supreme Court suspended Salem “from the practice of law,” which in
Indeed, Salem recognizes that only the Illinois Supreme Court has the power to suspend an
individual from practicing law in Illinois.5 The Seventh Circuit, moreover, has barred virtually
identical claims pursuant to Rooker-Feldman, even when a plaintiff sues the ARDC instead of
the state supreme court. See Levin, 74 F.3d at 767. By “fail[ing] to allege any injury independent
of the Illinois Supreme Court’s disciplinary hearings and its final decision” to suspend him,

Salem “impermissibly attack[s]” the state-court judgment. Id.
Nevertheless, Salem argues that the Court may hear his case because he is not asking the
Court to reinstate his law license, but rather is seeking to recover damages for the defendants’
constitutional violations. This Court may exercise jurisdiction over a claim, Rooker-Feldman
notwithstanding, when a plaintiff alleges that “out-of-court events have caused injury that the
state judiciary failed to detect and repair.” Iqbal v. Patel, 780 F.3d 728, 730 (7th Cir. 2015). For
example, in Iqbal, the Seventh Circuit held that a federal court had jurisdiction over a claim
where the plaintiff sought damages for a fraud that occurred prior to and independently of state
court litigation. Id. If a plaintiff seeks to recover for the out-of-court misconduct that caused

injury independent from a court judgment, rather than to overturn the judgment itself, the court
held, the plaintiff’s claim may proceed. Id. Salem attempts to equate his claims with the fraud
claim alleged in Iqbal.
Salem fails to persuade the Court. Regardless of Salem’s requested form of recovery, the
ultimate source of his injury is the Illinois Supreme Court’s suspension. In both of the putative

Salem’s case is the ability to appear in Illinois courts pro hac vice. Defs.’ Mem. in Supp. of Mot.
to Dismiss, Ex. 5 (Illinois Supreme Court Order), ECF No. 25-1.
5 Salem mistakenly refers to the Illinois Supreme Court as the ARDC’s “highest
administrative appellate body.” Compl. ¶¶ 71-73, ECF No. 1. The ARDC is a distinct
administrative agency that the Illinois Supreme Court created to supervise registration and
discipline of the attorneys of the Illinois bar. Ill. S. Ct. R. 751(a). Only the Illinois Supreme
Court has the power to suspend an attorney’s law license or prevent an attorney from practicing
pro hac vice. Ill. S. Ct. R. 770.
constitutional “causes of action” set forth in his complaint, Salem alleges that “Defendant Larkin
vindictively injured [him] by depriving him of his fundamental right to property, i.e. his license
to practice law.” Compl. ¶ 120, ECF No. 1 (emphasis omitted); see also id. ¶ 131 (characterizing
the alleged deprivation as of the “fundamental right to [Salem’s] property, which is his license to
practice law in all states” (emphasis omitted)). Salem’s “only support for damages” is dependent

upon the result of defendants’ alleged constitutional violations: his suspension. Johnson v.
Supreme Ct. of Illinois, 165 F.3d 1140, 1142 (7th Cir. 1999).
Moreover, the defendants’ alleged misconduct did not cause an injury that occurred “out-
of-court,” like the prelitigation fraud alleged in Iqbal. Salem’s substantive due process claim
challenges the state court’s adjudication of his case, a claim that necessarily involves in-court
injury and review of the state-court judgment. See Levin, 74 F.3d at 767. In fact, Feldman itself
involved similar claims. See 460 U.S. at 486-87 (claim that state court arbitrarily and
capriciously denied Feldman’s petition to waive bar admission was jurisdictionally barred). That
is the kind of “avenue[] of attack on attorney discipline” that courts have repeatedly shut down.

See Johnson, 165 F.3d at 1141 (collecting cases).
The injury stemming from defendants’ alleged discrimination is also inextricable from
the Illinois Supreme Court decision. Even if the defendants’ motivation for pursuing disciplinary
action against Salem were, as he alleges, discriminatory retaliation for his lawsuit or public
criticism, the misconduct that Salem complains of is the wrongful pursuit of charges. If Salem’s
own conduct justified the defendants’ decision to initiate disciplinary proceedings, his Equal
Protection claim would fail no matter the defendants’ motivation. See Miller v. City of Monona,
784 F.3d 1113, 1121-22 (7th Cir. 2015). To find that the defendants unlawfully pursued charges
against Salem, therefore, this Court would have to evaluate the validity of the Illinois Supreme
Court’s decision that discipline was warranted. That would run afoul of Rooker-Feldman. Kelley
v. Med-1 Sols., LLC, 548 F.3d 600, 605 (7th Cir. 2008) (invoking Rooker-Feldman because
determining whether defendants’ representations to state court were unlawful would require
reviewing the state-court decision); Levin, 74 F.3d at 767 n.4 (finding that plaintiff’s allegations
about the ARDC’s “unlawful prosecution” were “merely another way to contest his disciplinary

proceedings”).
That Salem could have reported the ARDC’s alleged misconduct to the Illinois Supreme
Court reinforces the interdependence of Salem’s claims and the state-court judgment. The state
court, and barring that, the U.S. Supreme Court, were the proper fora in which to raise Salem’s
claims. See Johnson, 165 F.3d at 1142. Salem cannot recover damages for constitutional
violations that occurred during his ARDC proceeding when he never raised them himself. “A
litigant may not avoid the Rooker-Feldman doctrine by withholding arguments from the state
court.” Id.
Salem resists this conclusion, arguing that he could not have raised his substantive due

process claims or discrimination claims before the Illinois Supreme Court. When a plaintiff lacks
a reasonable opportunity to litigate claims in state court due to state-court rules or procedures,
the Rooker-Feldman doctrine may not apply. Jakupovic v. Curran, 850 F.3d 898, 904 (7th Cir.
2017). But see Kelley, 548 F.3d 607 (questioning the validity of the “reasonable opportunity”
doctrine after Exxon Mobil). Salem argues that he did not have a chance to challenge the ARDC
Review Board’s decision because the Illinois Supreme Court issued its decision sua sponte. A
comparison of the Illinois Supreme Court Rules and the filings in Salem’s case, however, rebuts
that argument.
A party opposing a PLE may file an answer within fourteen days after the PLE is due,
which is within thirty-five days of the filing of the Review Board’s report. Ill. Sup. Ct. R.
753(e)(1), (4). In Salem’s case, the Review Board filed its report on October 31, 2018. Defs.’
Mem. in Supp. of Mot. to Dismiss, Ex. 3 (ARDC Review Board R. & R.), ECF No. 25-1. Salem
therefore had until December 5, 2018 to answer Larkin’s PLE. Without any response from

Salem, the Illinois Supreme Court filed its order on January 29, 2019. Defs.’ Mem. in Supp. of
Mot. to Dismiss, Ex. 5 (Illinois Supreme Court Order), ECF No. 25-1. Far from issuing its order
sua sponte, the Illinois Supreme Court waited until Salem’s time to respond expired to issue its
order. Salem had every reasonable opportunity to litigate his claims before the state court; he just
missed the deadline to do so.
Salem further argues that he could not appeal the ARDC Review Board’s decision
because discrimination and substantive due process claims require a fact-finding hearing, which
cannot be adjudicated by an appellate court. Perhaps because no such authority exists, Salem
cites nothing to support this proposition. An evidentiary hearing is not a prerequisite for state

supreme court or U.S. Supreme Court review of claims asserting constitutional violations. See,
e.g., In re Bell, 147 Ill. 2d 15, 34, 588 N.E.2d 1093, 1101 (1992) (addressing attorney’s argument
that ARDC Hearing and Review Boards denied him due process without conducting separate
evidentiary hearing). Moreover, no such evidentiary hearing requirement appears in Illinois
Supreme Court Rule 753(e), which governs the procedures for filing and review of PLEs. In
short, Salem was “aware of the proceedings against him, . . . participated in those proceedings,
and . . . had an opportunity to present [his] constitutional claims in those proceedings.” Leaf v.
Supreme Ct. of State of Wis., 979 F.2d 589, 599 (7th Cir. 1992). He cannot now use the federal
district courts to assert the claims he failed to pursue in the appropriate fora.
Finally, Salem contends that he could not raise the constitutional violations before the
Illinois Supreme Court because his injury arose only after the Illinois Supreme Court’s order.
That argument only proves that Salem’s constitutional claims depend upon the Illinois Supreme
Court’s suspension decision. Having returned to the core principles animating the Rooker-
Feldman doctrine, the Court concludes that it lacks jurisdiction over any of Salem’s suspension-

based claims. Defendants’ motion to dismiss those claims pursuant to Federal Rule of Civil
Procedure 12(b)(1) is therefore granted.
II. Failure to State a Claim
When the jurisdictional dust settles, only Salem’s false-publication claim remains. Salem
alleges that the ARDC and Larkin discriminated against him as a “class of one” by publishing
the false statement. Compl. ¶ 114, ECF No. 1. Defendants move to dismiss this claim under Rule
12(b)(6). To survive such a motion, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” D.B. ex rel. Kurtis
B. v. Kopp, 725 F.3d 681, 684 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).
Before addressing the substance of Salem’s Equal Protection Claim, the Court considers
the defendants’ statutory defenses.6 It has long been established that states and their agencies are

6 The defendants argue that this Court should dismiss the entire complaint for lack of
subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because defendants
are immune from suit under the Eleventh Amendment. Whether a defendant is a “person” subject
to suit under § 1983 involves a statutory defense, rather than a constitutional one. Consistent
with the principle of avoiding unnecessary constitutional questions, the Seventh Circuit has
instructed district courts to address the question of statutory status as a “person” before wading
into murky Eleventh Amendment waters. See, e.g., Thomas v. Illinois, 697 F.3d 612, 613-14 (7th
Cir. 2012); Sanders v. Ind. Dep’t of Child Servs., 806 F. App’x 478, 480 (7th Cir. 2020). Because
not “persons” subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64
(1989). Accordingly, none of Salem’s claims against the ARDC, a state agency, may proceed.
See Johnson, 165 F.3d at 1140-41. Because Larkin “is a proxy for the ARDC,” Salem cannot
proceed with any official-capacity damages suit against Larkin either. Ditkowsky v. Stern, 581 F.
App’x 571, 572-73 (7th Cir. 2014).

A plaintiff may, however, seek to enjoin a state official from acting unconstitutionally on
the state’s behalf. See Ex Parte Young, 209 U.S. 123, 163 (1908); accord Berger v. N. C. State
Conf. of the NAACP, 142 S. Ct. 2191, 2197 (2022). Salem, therefore, may seek prospective
injunctive relief against Larkin for unconstitutional actions performed in his official capacity.
See Kolton v. Frerichs, 869 F.3d 532, 536 (7th Cir. 2017). And Salem may pursue a § 1983
claim for individual-capacity damages against Larkin. See Johnson, 165 F.3d at 1141.
The question before the Court is whether Salem states an Equal Protection Claim against
Larkin for damages and injunctive relief based on Larkin’s publication of allegedly false
statements on the ARDC website. In its more commonly invoked form, the Equal Protection

Clause of the Fourteenth Amendment protects individuals against state and local government
discrimination on the basis of protected classes. Geinosky v. City of Chicago, 675 F.3d 743, 747
(7th Cir. 2012). Courts have also interpreted the Equal Protection Clause to forbid government
law enforcement officials from arbitrarily and irrationally targeting individuals to harass them.
Id. Although a plaintiff usually must plead differential treatment from other similarly situated

§ 1983 does not explicitly invoke a federal court’s jurisdiction, the determination of the proper
defendants to sue addresses the plaintiff’s ability to state a claim, rather than assert subject-
matter jurisdiction. See Ross v. Illinois, 48 F. App’x 200, 202-03 (7th Cir. 2002) (vacating with
instructions to dismiss for failure to state a claim under 12(b)(6) where district court dismissed
§ 1983 claim against state on jurisdictional grounds); Obazuaye v. Ill. Dep’t of Hum. Servs., No.
21-2426, 2022 WL 1830686, at *1 (7th Cir. June 3, 2022) (holding district court correctly
dismissed § 1983 suit against state agency under 12(b)(6) after finding that state agency is not a
“person” subject to suit).
individuals to state an Equal Protection claim, that requirement is redundant when the alleged
harassment “has no conceivable legitimate purpose.” Id. at 748. For example, in Geinosky, in the
absence of a conceivable rational explanation for issuing a plaintiff dozens of bogus parking
tickets, the plaintiff did not have to include in his complaint the obvious observation that other
Chicago drivers were treated differently. Id.

Salem does not identify any similarly situated individuals whom Larkin treated more
favorably. He correctly notes that he did not need to do so if Larkin’s alleged conduct was so
irrational that it foreclosed “any reasonably conceivable state of facts that could provide a
rational basis for the classification.” Miller, 784 F.3d at 1121 (quoting Scherr v. City of Chicago,
757 F.3d 593, 598 (7th Cir. 2014)). But it is the plaintiff’s burden to “negative any reasonably
conceivable state of facts that could provide a rational basis” for the aberrational treatment, id.,
and Salem falls well short of meeting this requirement. Merely alleging that Larkin harbored
retaliatory motives is not enough to state a “class-of-one” claim, particularly where it is possible
to conceive of a rational basis for the action; “a given action can have a rational basis and be a

perfectly logical action for a government entity to take even if there are facts casting it as one
taken out of animosity.” Id.
It does not tax the imagination to conceive of a rational basis for publication of the
summary of the ARDC’s action against Salem. As discussed, Larkin asked the Illinois Supreme
Court to suspend Salem’s license, citing Salem’s misleading representations that he was an
Illinois attorney. Salem did not answer Larkin’s PLE, and the Illinois Supreme Court entered its
suspension order. The Illinois Supreme Court did not explain its decision, but it is reasonable to
infer that Larkin interpreted the Illinois Supreme Court order as accepting his evidence of
Salem’s dishonest conduct. And it is more than “conceivable” that Larkin was following his
regulatory duties by posting a summary of this reasonable interpretation on the ARDC website.
Salem therefore fails to state an Equal Protection claim, and the Court grants defendants’
motion to dismiss. Moreover, because the public records submitted in this case support a rational
purpose for posting Salem’s disciplinary summary, any further amendment of the complaint
would be futile. Accordingly, the Court dismisses Salem’s claim based on Larkin’s allegedly
false publication with prejudice. See Vitrano v. United States, 721 F.3d 802, 809 (7th Cir. 2013).
x x x
For the foregoing reasons, the Court grants defendants’ Rule 12(b)(1) motion to dismiss
Salem’s claims challenging his suspension. Because those claims are dismissed on jurisdictional
grounds, they are dismissed without prejudice, but they cannot be reasserted in a federal court.
The Court also grants defendants’ Rule 12(b)(6) motion to dismiss Salem’s claim challenging the
publication of his disciplinary history with prejudice. Judgment will be entered in favor of the
defendants and the case will be terminated.

Dated: November 23, 2022 John J. Tharp,
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10147969. Public record. Not legal advice.