Appendix — LeRoy v. Illinois Racing Board

Supreme Court brief1995

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

Steven LeRoy,

Petitioner,

Vv.

Illinois Racing Board; Thomas J. Garvey,

Ralph M. Gonzales, Farrel J. Griffin, Ray

H. Garrison, and Irwin G. Jann,

individually and in their official capacity

as members of the Illinois Racing Board;

Richard E. Garrett, Robert G. Ward, Timothy

Schmidtz, Frank Deglamine and Robert

Milburn, individually and in their official

capacity as Stewards,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Seventh Circuit

APPENDIZ

LAWRENCE JAY WEINER

Counsel of Record

SCARIANO, KULA, ELLCH

AND HIMES, CHTD.

Two Prudential Plaza

180 North Stetson Street

Suite 3100

Chicago, Illinois 60601

(312) 565-3100

March, 1995

TABLE OF CONTENTS

TO APPENDIX

Opinion of the United States Court of

Appeals for the Seventh Circuit,

affirming the dismissal of the second

amended complaint by district court

(Judge Wellford, concurring in part

and dissenting in part), issued

October 27, 1994 ..... App. 1-32

Order of the United States Court of Appeals

for the Seventh Circuit, denying

plaintiff-appellant’s petition for

rehearing with suggestion of rehearing

in banc, entered December 28, 1994

eco ee etn ee) ee Bde

Mandate of the United States Court of

Appeals for the Seventh Circuit,

issued January 5, 1995 . App. 34-35

Order of the United States Court of

Appeals for the Seventh Circuit,

denying plaintiff-appellant’s motion

for stay of mandate, entered January

ee ee a ee

Complaint, filed April 26, 1989

Memorandum Opinion and Order, dated January

18, 1990, entered January 19, 1990 and

docketed January 22, 1990,. dismissing

plaintiff’s original complaint and

permitting plaintiff to file an

amended complaint... App. 73-95

Minute Order, entered January 19, 1990 and

docketed January 22, 1990 dismissing

plaintiff’s original complaint and

permitting plaintiff to file an

amended complaint .... . App. 96

Amended Complaint, filed February 9, 1990

cet es 6 oe 6 * oe eee

Memorandum Opinion and Order, dated and

entered December 20, 1990 and docketed

January 11, 1991, granting defendants’

motion to dismiss plaintiff’s amended

complaint, and dismissing case with

prejudice «<«-e«ees App. 145-184

Minute Order, entered December 20, 1990 and

docketed January 11, 1991, dismissing

case with prejudice ... App. 184

Judgment in a Civil Case, entered December

20, 1990 and docketed January 11,

1991, dismissing Plaintiff’s case with

prejudice ..... . App. 184-185

Order of United States Court of Appeals for

Seventh Circuit (Case No. 91-1166),

dated June 9, 1992, remanding case to

district court for the limited purpose

of allowing Judge Nordberg to clarify

whether he intended to dismiss the

plaintiff’s entire case, including the

claim for injunctive relief against

the defendants in their official

capacity, or, if not, whether he

believes that the remaining claims are

presently appealable under dictates of

Federal Rule of Civil Procedure 54(b).

After the district court has clarified

its position, the case to be returned

to the panel .... -« App. 185-186

Minute Order, entered June 28, 1992 and

docketed June 30, 1992, "as requested by

the United States Court of Appeals,"

Amending Memorandum Opinion and Order of

December 20, 1990. ° © © «© © «© « 187-189

Amended Memorandum Opinion and Order, dated

July 7, 1992 and docketed July 13,

1993, dismissing Plaintiff’s claims

with prejudice except for the

plaintiff’s claim for injunctive

relief against defendants in their

official capacities, which remains for

adjudication ..... App. 190-228

Minute Order, dated July 7, 1992 and

docketed July 13, 1993, amending

Memorandum Opinion and Order nunc pro

tunc to December 20, 1990 pursuant to

Minute Order of June 29, 1992 and as

requested by United States Court of

ss 6 es & » « -« App. 229

Order of the United States Court of

Appeals for the Seventh Circuit (Case

No. 91-1166), dated July 13, 1992,

dismissing Plaintiff’s appeal for lack

Of jurisdiction ... App. 229-231

Judgment of United States Court of Appeals,

for the Seventh Circuit (Case No. 91-

1166), dated July 14, 1992, dismissing

appeal for lack of jurisdiction

as se + ee elf App. 232-233

Request for Admission... App. 234-248

Defendants’ Response to Plaintiff’s Request

for Admission .... App. 249-253

»% & |

Second Amended Complaint, filed

October 9, 1992 .. . .App. 254-276

Memorandum Opinion and Order, dated

April 9, 1993, entered April 12, 1993

and docketed April 13, 1993, granting

Defendant’s Motion to Dismiss with

prejudice . «+s «e-s App. 277-292

Minute Order, dated April 12, 1993 and

docketed April 13, 1993, granting

Defendants’ Motion to Dismiss with

cs 5 Ce App. 293

Judgment in a Civil Case, dated April 12,

1993 and docketed April 13, 1993,

granting Defendants’ Motion to Dismiss

with prejudice ...... App. 294

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 93-2099

STEVEN LeROY,

Plaintiff-Appellant,

Vv.

ILLINOIS RACING BOARD, et al.,

Defendants-—Appellees.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 89 C 3433--John A. Nordberg, Judge.

ARGUED SEPTEMBER 7, 1994--DECIDED OCTOBER

27, 1994

Before POSNER, Chief Judge, and WELLFORD*

and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judae. Since 1958

Steven LeRoy has been licensed by Illinois

as an owner, trainer, and driver of

App. 1

standardbred racehorses. When obtaining

his licenses, LeRoy agreed to comply with

rules established by the Illinois Racing

Board. One of these rules forbids anyone

other than a veterinarian to possess on the

premises of any racetrack “any hypodermic

syringe or needle or any instrument capable

of being used for the injection

* Hon Harry W. Wellford, of the Sixth

Circuit, sitting by designation.

into any horse of any chemical substance."

Rule C9.10(a), codified at 11 Ill, Admin.

Code 509.100. In order to enforce this and

relatea rules the Board requires licensees

to submit to searches on demand. Rule

25.19, 11 111. Admin. Code 1325.190.

During the spring of 1987 the Illinois

State Department of Law Enforcement made

such a demand when LeRoy drove a pickup

App. 2

truck onto the grounds of the Maywood Park

Racetrack. Officers found a hypodermic

syringe and a dirty, clogged needle under

the passenger seat. Finding that the

needle could have been cleaned and used,

the Board suspended LeRoy for 90 days.

Things went downhill from there. The

suspension barred LeRoy from entering any

racetrack in Illinois. Rule 22.3, 11 Ill.

Admin. Code 1322.30. He did not comply,

was caught, and was suspended for 30

additional days. In the process, he swore

at an official of the Board, which led to

a fine plus a suspension through the end of

the 1987 season, followed by probation

until December 31, 1988. (The Board’s Rule

20.1, 11 Ill. Admin. Code 1320.10, provides

that licensees may not use “improper

language to an official, or be guilty of

any improper conduct toward such

App. 3

——————————————————————ee

officers".) Maywood’s disciplinary board

found that, while on probation, LeRoy had

“used threatening and profane language

towards the Association Steward at Maywood

Park." That ended his association with

racing for the rest of the 1988 season,

coupled with an indefinite suspension of

his licenses pending reapplication to the

Board.

Believing that the search violated his

rights under the fourth and fourteenth

amendments, LeRoy filed this suit under 42

U.S.C. §1983 seeking damages and an

injunction requiring the Board and Stewards

to expunge the disciplinary orders.

(Apparently LeRoy has been reinstated; he

does not seek any other prospective

relief.) His principal theory is that all

four suspensions depend on the search and

must stand or fall together, although he

App. 4

raises some independent challenges to Rule

20.1. In a series of opinions, the

district court granted the defendants

judgment on the pleadings on one issue

after another, 1990 U.S. Dist. LEXIS 544,

1990 U.S. Dist. LEXIS 17589, 1992 U.S.

Dist. LEXIS 10241, finally dismissing the

suit altogether. 1993 U.S. Dist. LEXIS

4617.

The keystone of the district court’s

approach is its holding that the defendants

possess qualified immunity from damages.

Agents stopped LeRoy’s pickup truck in

April 1987. Four months earlier a panel of

this court had held Rule 25.19

unconstitutional, at least to the extent it

authorizes searches of living cubicles that

some tracks provide for participants in the

races. Sserpas v. Schmidt, 808 F.2d 601

(7th Cir. 1986). In April 1987 this court

App. 5

was considering whether to hear Serpas en

banc. When the petition was denied in July

1987, the panel modified its opinion, and

five judges registered dissents. Serpas v.

Schmidt, 827 F.2d 23 (7th Cir. i987}.

Contemporaneous with the first panel

opinion in Serpas, the Appellate Court of

Illinois issued an opinion concluding that

Rule 25.19 is valid as applied to a pat-

down search of a jockey by agents who

suspected (correctly) that he possessed an

electrical stimulator. People v. Strauss,

151 Ill. App. 3d 191, 502 N.E.2d 1287 (lst

Dist. 1986). The district court held that

an action authorized by a rule recently

given a clear bill of constitutional health

by a state court could not be thought to

violate LeRoy’s “clearly established"

rights, see Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Anderson v. Creighton, 483

App. 6

U.S. 635, 640 (1987), even if a panel of

this court thought the rule

unconstitutional. According to the

district court, not until 1989, when Hansen

v. Illinois Racing Board, 179 Ill. App. 3d

353, 534 N.E.2d 658 (lst Dist. 1989),

disapproved Strauss and held Rule 25.19

unconstitutional “on its face," did a

racetrack search become a basis for

damages. LeRoy believes that the view of

a federal court takes precedence over the

opinion of a state court, but we do not

consider the extent to which aright may be

called “clearly established" when judges

disagree, because the search did not

violate LeRoy’s rights at all. Although

defendants have not sought to defend Rule

25.19, the merits of the constitutional

claim are an antecedent issue whenever the

defendants plead immunity, one we may

App. 7

consider without regard to the litigants’

tactical decisions. Siegert v. Gilley, 500

U.S. 226, 232-33 (1991); cf. Kamen _v.

Kemper Financial Services Inc., 500 U.S.

90, 99-100 (1991).

Serpas dealt with the application of Rule

25.19 to residential searches. The panel

emphasized not only the special privacy

interest in one’s living quarters but also

the lack of statutory support for such

searches. The statute on which the Board

relied in promulgating Rule 25.19 speaks

only of searches at the track and “other

places of business,” 230 ILCS 5/9(c), and

the panel concluded that the state

legislature thus implicitly found that

residential searches are unnecessary, even

if the living quarters are on the premises

of race tracks. LeRoy’s pickup truck was

not his home; searches of automobiles may

App. 8

Se ee ce ee ee

be justified by significantly lesser cause,

given the reduced privacy interests

involved coupled with vehicles’ greater

mobility. E.g., California v. Acevedo, 500

U.S. 565 (1991). and 230 ILCS 5/9(c)

unquestionably authorizes Rule 25.19 to the

extent it applies to vehicular searches on

the grounds of racetracks.

Since Serpas this court has revisited the

subject of searches at racetracks. Dimeo

v. Griffin, 943 F.2d 679 (7th Cir. 1991)(en

banc), holds that racing officials do not

need person-specific cause, or warrants,

before they may conduct drug tests of

persons associated with the sport. We

observed in Dimeo that horse racing is a

tightly regulated business, a fact that

permits searches designed to enforce the

terms of the regulatory regime. Se also,

e.g-, New York v. Burger, 482 U.S. 691

App. 9

(1987) (automobile junkyard); Donovan v.

Dewey, 452 U.S. 594 (1981) (coal mine);

United States v. Biswell, 406 U.S. 311

(1972) (gun dealer); Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970)

(liquor dealer); Lesser _v. Espy, No. 93-

2826 (7th Cir. Aug. 30, 1994) (rabbitry).

Dimeo concluded that the public interest in

drug testing at racetracks is substantial:

drugs (whether administered to horses or

ingested by jockeys) diminish the safety of

a sport that is already dangerous given the

size and speed of horses, and the potential

for use of drugs to affect races diminishes

public confidence in the races and thus

jeopardizes the revenue obtained from taxes

on wagers. The privacy interest also is

significant (some persons are embarrassed

by the scrutiny that may be necessary to

collect urine samples for drug testing),

App. 10

but not so great, we held, that the state

requires probable cause or a warrant. We

explained Serpas this way:

serpas _v. Schmidt, 827 F.2d 23 (7th

Cir. 1987), rejected Illinois’s claim

to be allowed to conduct’ random

searches of the living quarters of

"backstretchers," who take care of

horses at race tracks but do not

participate in the race. It was not

a drug-testing case but an old-

fashioned search case, and the persons

to be tested were ont actual race

participants. So the intrusion on

privacy was greater and the state

interest weaker.

943 F.2d at 684. Much the same may be said

today. LeRoy is licensed to participate in

races; the search was used to enforce a

rule related to drugs; an automobile search

is less intrusive than a residential

search. McGann v. Northeast Illinois

Regional Commuter R.R., 8 F.3d 1174 (7th

Cir. 1993), on which LeRoy relies, deals

with an attempt to use the public ownership

of real estate as a basis to require all

App. 11

entrants to consent to search; it has

nothing to do with administrative searches

on the premises of tightly regulated

industries. We do not think that the use

of Rule 25.19 to authorize searches of

licensees’ vehicles at racetracks is open

to serious question.

We say this notwithstanding the

conclusion of Hansen that Rule 25.19 is

invalid "on its face" -- that is, in every

possible application. The Appellate Court

of Illinois believed that participants in

horse racing may be subject to

administrative searches. It held, however,

that Rule 25.19 is invalid because it “does

not properly limit the discretion of the

inspecting officers." 179 Ill. App. 3d at

359, 534 N.E.2d at 662. Hansen attributed

the requirement of limited discretion to

our opinion in Serpas and the Supreme

App. 12

Court’s opinion in Burger. If this was

indeed an independent holding of Serpas, it

did not survive Dimeo, for that case

permitted random, suspicionless drug

testing. And our reading of Burger differs

from that of the judges who decided Hansen.

Although the Supreme Court stated that the

rules establishing a program of

administrative inspections “must limit the

discretion of the inspecting officers", 482

U.S. at 703, it also concluded that a

statute authorizing searches during

business hours, and informing participants

in the industry, satisfied this

requirement. id. at 711-12. Se also

Lesser, slip op. at 13-14, concluding that

statutes giving inspectors access to the

business premises of rabbitries on demand

Satisfy the fourth amendment. Rule 25.19,

by limiting searches to licensees on the

App. 13

premises of the tracks, likewise curtails

discretion. The Court rejected in Burger

and argument that the statute must create

criteria for searches or announce 4a

schedule of inspections. Such steps, the

Court held, would render the inspections

ineffectual, because persons with something

to hide could use their knowledge to avoid

detection. 482 U.S. at 710. The Court

believed that “surprise is crucial if the

regulatory scheme .. . is to function at

all.“ Ibid. Just so here.

One final comment about Serpas is in

order. The last page of the panel’s

opinion, 827 F.2d at 30, concluded that the

application of Rule 25.19 to the search of

backstretchers’ persons outside their

quarters stood on the same ground as the

searches of the quarters themselves. This

may have been a consequence of the parties’

App. 14

PEO MERE sn ae eee Ses eo aa nen

litigation strategy: "Appellants have not

Suggested that we should analyze the

personal searches any differently from the

residential searches". Ibid. To the

extent the panel believed that pat-—downs

and automobile searches are indeed subject

to the same rules as residential searches,

subsequent cases (including Acevedo and

Dimeo) have undercut its conclusion. This

portion of Serpas can no longer be

considered authoritative.

Dimeo applied its holding to the parties,

and that decision therefore is fully

retroactive. Harper v. Virginia Department

of Taxation, 113 S.Ct. 2510 (1993). Se

also Lockhart v. Fretwell, 113 S.Ct. 838,

844 (1993). Because the search was

permissible, most of LeRoy’s remaining

arguments collapse. Three other

contentions deserve brief attention,

App. 15

however.

Rule 20.1 forbids “improper language" or

“improper conduct" by licensees toward

regulators. LeRoy suffered two sanctions

under this rule, the first for profanity

and the second for a combination of threats

and profanity. He does not contend that

the Constitution permits him to threaten

public officials (see Watts v. United

States, 394 U.S. 705 (1969); cf. Rankin v.

McPherson, 483 U.S. 378 (1987)) or that the

profanity was a means to make a political

point (contrast Cohen v. California, 403

U.S. 15 (1971)). Instead he contends that

Rule 20.1 is “vague and overbroad.” As 4

norm addressed to the general public for

the conduct of daily affairs, Rule 20.1

would be seriously deficient. Hess _ Vv.

Indiana, 414 U.S. 105 (1973); Gooding v.

Wilson, 405 U.S. 518 (1972). But it is

App. 16

addressed instead to licensees, governs

only their relations with regulators

concerning “the administration of the

course, or of any race thereon," and is

administered by an agency that, through a

series of decisions, can add details. The

System Illinois applies to the racing

industry has much in common with civil

service laws, which despite their many

vague terms, were sustained in Broadrick v.

Oklahoma, 413 U.S. 601, 607-15 (1972), and

CSC v. Letter Carriers, 413 U.S. 548, 568-

81 (1973), and with the Uniform Code of

Military Justice, whose prohibitions

against “conduct unbecoming an officer and

a gentleman" and “disorders and neglects to

the prejudice of good order" met approval

in Parker v. Levy, 417 U.s. 733 (1974).

LeRoy does not contend that his own conduct

lay outside the bounds of a properly drawn

App. 17

prohibition. Whatever deficiencies Rule

20.1 may display in application to others

are not salient, for the rule is not

“substantially overbroad” in the sense that

a significant fraction of its applications

would forbid or deter protected speech.

See Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 503-04 (1985).

‘ The threats and profanity led to extended

suspensions. LeRoy attached to his

complaint decisions imposing lighter

penalties on other persons who violated

Rule 20.1. The difference between the

sanctions meted out to him, and those meted

out to others, violates the equal

protection clause of the fourteenth

amendment, LeRoy believes. But the

Constitution does not require similar

penalties for similar wrongs. Chapman v.

United States, 500 U.S. 453, 465 (1991);

App. 18

—

Wayte v. United States, 470 U.S. 598, 607-

10 (1985); FTC v. Universal-Rundle Corp.,

387 U.S. 244 (1967); Falls v. Town of Dyer,

875 F.2d 146 (7th Cir. 1989). LeRoy does

not contend that race, religion, or some

other forbidden consideration accounts for

the difference. More likely the reason for

the stiff penalty is LeRoy’s recidivism, a

perfectly appropriate ground.

Finally, LeRoy throws all of his

arguments into a stewpot and contends that

even if each falls short, the congeries

violates “substantive due process." This

invented doctrine does not authorize courts

to expand constitutional clauses at will.

Albright v. Oliver, 114 S.Ct. 807 (1994);

Graham v. Connor, 490 U.S. 386, 395 (1989).

No concrete constitutional provision

disables a state from Suspending horse

owners and drivers who bring syringes into

App. 19

racetracks or from insisting that licensees

abide by the terms of their suspensions and

behave civilly. Which acts to forbid, and

which penalties to attach to violations,

are fit subjects for decision according to

state law. Federal courts are not

appellate boards within the state’s

administrative hierarchy. Cf. River Park,

Inc. v. Highland Park, 23 F.3d 164 (7th

Cir. 1994). LeRoy could have obtained, but

spurned, review in state court. If he is

looking for review after the fashion of the

Administrative Procedure Act, he has come

to the wrong place.

AFFIRMED

WELLFORD, Circuit Judge, concurring in

part and dissenting in part:

I concur with the majority view that d

plaintiff LeRoy does not establish any

App. 20

"substantive due process" violation. I

also concur that the penalties imposed upon

LeRoy by defendant Board for threats and

profanity have not been shown to violate

constitutional equal protection

requirements.

Respectfully, I cannot agree and,

therefore, dissent to the qualified

immunity issue with regard to the search at

issue.

On April 27, 1987, Steven LeRoy,

plaintiff, drove a pickup truck on the

grounds of the Maywood Park Racetrack.

Plaintiff’s truck was searched pursuant to

Illinois Racing Board ("IRB") Rule 25.19’

A syringe and a needle were found in the

plaintiff’s truck. The syringe was

"clogged," and defendants admit there was

of a racing license.

App. 21

Rule 25.19 requires consent to search as

a condition to the obtainment and maintenance

no evidence that the needle was capable of

being used for injection of any chemical

substance into any horse. In addition,

defendants admit that plaintiff’s horses

were tested and found not to have been

administered with any prohibited substance

or medication. Nevertheless, plaintiff and

his horses were excluded by defendant

Stewards.* The Stewards also suspended

plaintiff for ninety days from all racing

tracks licensed by the IRB.

A federal district court in July, 1985,

considered the constitutionality of the IRB

Rule 25.19 in a case dealing with

residential quarters at Arlington Park

Racetrack in Illinois. Serpas v. Schmidt,

621 F.Supp. 734 (E.D. Ill. 1985). The

district court entered a broad injunction,

2 The defendant Stewards included Richard

E. Garret, Robert D. Ward, Timothy Schmidtz,

Frank Deglamine, and Robert Milburn.

App. 22

after a hearing, permanently enjoining the

IRB and its members, among other things,

from “conducting or authorizing searches

and seizures of . . . piaintiffs and the

class they represent without warrants and

probable cause.“ Id. at 744. In addition,

the district court Similarly enjoined

“conducting or authorizing investigatory

stops of plaintiffs and the class they

represent without at least a reasonable

Suspicion, based on specific, articulable

facts, that the person stopped is engaged

in criminal activity.” Id. Finally, this

injunction enjoined "conditioning the

issuance of occupational licenses upon

applicants’ forfeiture of their

constitutional rights. ...”" id.

On appeal, a panel of this court affirmed

the decision of the district court. Serpas

Vv. Schmidt, 808 F.2d 601 (7th Cir. 1986).

App. 23

This decision was issued only a few months

before the episode in question, holding:

The district court also enjoined the

Board and IDLE’s practice of

conducting warrantless stops’ and

searches of the backstretchers ’

persons within the race track

enclosure. Appellants have not

suggested that we should analyze the

personal searches any differently from

the residential searches, and we, too,

think that the same rules apply. Like

searches of property, searches of the

person are generally impermissible

absent a warrant issued upon a

determination of a probable cause.

New York v. Belton, 453 U.S. 454, 457,

101 S.Ct. 2860, 2862, 69 L.Ed.2d 768

(1981); Mary Beth G. v. City of

Chicago, 723 F.2d 1263, 1268 (7th Cir.

1983). The deficiencies we have noted

in the statute and regulatory scheme

apply equally to these personal

Searches. ...

Serpas, 808 F.2d at 607 (emphasis added).

During the plaintiff’s suspension period

after the personal search without warrant

and, allegedly, without reasonable

Suspicion or probable cause, this court

denied rehearing and reissued a similar

opinion regarding personal searches on IRB

App. 24

track enclosures. Serpas v. Schmidt, 827

F.2d 23 (7th Cir. 1987).

Based on these facts alone, defendants

cannot claim qualified immunity for the

April, 1987 search, seizure and suspension.

(The judges who comprise the majority on

this panel, however, vigorously dissented

from denial of an en banc hearing, 827 F.2d

at 34). Presumably, the injunction

remained in effect.

An Illinois appellate court, in the

meantime, on December 31, 1986, issued an

opinion on the constitutional validity of

Rule 25.19, People y. Strauss, 151 Ill.

App. 3d 191, 502 N.E.2d 1287 (1986), based

upon a very different set of facts from

serpas and the instant case. Track

authorities had detected a “suspicious

betting pattern" which involved jockey

Strauss’ horse. Upon a subsequent pat-—down

App. 25

search of Strauss, an illegal device was

found. Upon Strauss’ challenge to the

search under Rule 25.19, the Illinois trial

court declared this rule unconstitutional.

The Illinois Court of Appeals, without any

reference to Serpas or its injunction, held

the rule to be constitutional in the face

of Strauss’ particular challenge. The

holding was based upon the unusual betting

pattern centered upon Strauss and because

“the pat-down search is considered the

least intrusive type." Id. at 198, 502

N.E.2d at 1291.

Strauss held that under the

circumstances, defendant’s "justifiable

privacy expectation is minimal," and that

only "’a minimal showing os suspicions’ be

present to justify a pat-down search,"

which was “not considered an extensively

intrusive search." The holding was

App. 26

apes eennnt ar Naan enema aed

expressly limited to “the warrantless

search . . ., based on the facts of this

case." Id. at 198, 502 N.E.2d at 1292

(emphasis added).

In this case, the district court’s

decision concluded that “the Illinois

Appellate Court declined to follow the

serpas decision." This may be so, but

Strauss made no mention of Serpas or its

injunction; in addition and most important,

there was a reasonable Suspicion in

Strauss, on the basis of which track

authorities made a minimally intrusive

search. The Strauss court also may not

have been aware of serpas, but, in any

event, Strauss limited the effect of its

decision to the distinctive facts of that

case. Serpas, on the other hand, was a

broad class action type of case, involving

track employees’ challenge to

App. 27

—

a i nr i i cE

———

Se ee

“investigatory stops and searches of

[their] persons within the race track

enclosure." Serpas, 808 F.2d at 602.

Furthermore, in Hansen v. Illinois Racing

Board, 179 Ill. App. 3d 353, 534 N.E.2d €58

(1989), a person in a similar position to

LeRoy challenged a proposed search of a

pickup truck at a racetrack under Rule

25.19 and was successful in establishing

the Rule’s unconstitutionality once again.

In Hansen, the track stewards, based upon

the party’s refusal to permit a search of

the vehicle in May of 1987, decided that

“the proper procedure was not to search the

truck," but to suspend Hansen’s license.

Id. at 660.° Neither the Illinois trial

3 As to the issue of LeRoy’s consent to

the search in this case, this court held in

McGann v. Northeast Ill. Regional Commuter R.R.

Corp., 8 F.3d 1174, 1184 (7th Cir. 1993), that

“if there was an unlawful seizure, [the issue

was whether ] plaintiff's conduct was

‘sufficiently an act of free will to purge the

App. 28

court nor the Illinois appellate court felt

bound by Strauss and its particular fact

ruling. Instead, these Illinois courts

deemed Serpas to be “instructive and in

accord with constitutional requirements."

Id. at 662-63.

In testing defendants’ claim of qualified

immunity, we look to see if “constitutional

standards [were] Clearly established at the

time in question." Rakovich v. Wade, 850

F.2d 1180, 1210 (7th Cir.), cert. denied,

488 U.S. 968 (1988). Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982), discussed

qualified immunity in the context of

whether the state official involved “could

be fairly said to ‘know’ that the law

forbade conduct not previously identified

as unlawful." (emphasis added). In April

of 1987, I believe that defendants

primary taint’ of the unlawfulness. “

App. 29

reasonably might be said to have known or

deemed to have realized that the conduct

involved in an arbitrary search of LeRoy

was unlawful or unconstitutional.

Defendants were charged with knowledge that

a federal district court had enjoined them

from engaging in this kind of conduct as

unlawful and that this court had affirmed

that decision, and that, again, ratified

those decisions before the suspension of

LeRoy had expired. They knew, or should

have known, the Illinois state trial judge

had agreed with that rationale in Strauss,

but this decision had been reversed on and

limited to the particular (and dissimilar)

facts in that case. They may have been

aware that another Illinois State judge in

Jansen had found Rule 25.139

unconstitutional on its face before the

suspension was lifted.

App. 30

Based on these facts and the state of the

law in 1987, I would find it error for the

district judge to have granted a Fed. R.

Civ. P. 12(b)(6) motion in favor of

defendants on the basis of qualified

immunity. It may be that defendants will

ultimately prevail on this defense, but the

dismissal was premature, I believe, under

the circumstances.

I am mindful that much later, in 1991, a

divided en banc court in Dimeo v. Griffin,

943 F.2d 679 (7th Cir. 1991), held “that

racing officials [in Illinois] do not need

person-specific cause, or warrants before

they may conduct drug tests of persons

associated with the sport." I do not agree

that Dimeo (decided in 1991) may be

retroactively applied in this case to

consideration of a claim of qualified

immunity to a 1987 episode, which claim

App. 31

must take into account the state of the law

as to asserted violation of constitutional

rights in 1987. While Serpas, 827 F.2d at

23, may be deemed “no longer authoritative"

by the majority (as of 1991), for the

reasons I have stated, I believe it was

sufficiently authoritative (and its

injunction binding) to preclude a Rule

12(b)(6) motion in this case.

I, therefore, dissent from the Rule 25.19

holding only and the grant of qualified

immunity under the circumstances.

A true Copy:

Teste:

Clerk of the United States Court _

of Appeals for the Seventh

App. 32

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

December 28, 1994

Before

Hon. RICHARD A. POSNER, Chief Judge

Hon. HARRY W. WELLFORD, Circuit Judge*

Hon. FRANK H. EASTERBROOK, Circuit Judge

STEVEN LeROY,

Plaintiff-

Appellant,

Appeal from the

United States

District Court

for the Northern

No. 93-2099 Vv. District of

No. 89 C 3433

John A. Nordberg,

Judge.

Illinois Racing

Board, et al.,

Defendants-

Appellees.

eee ee ee ee ee ee we wa

Order

Plaintiff-Appellant filed a petition

for rehearing and suggestion of rehearing

en banc on November 10, 1994. No judge in

regular active service has requested a vote

on the suggestion of rehearing en banc, and

all of the judges on the panel have voted

App. 33

to deny rehearing. The petition for

rehearing is therefore DENIED.

* Hon. Harry W. Wellford, of the Sixth

Circuit, sitting by designation

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

NOTICE OF ISSUANCE OF MANDATE

DATE: January 5, 1995

TO: H. Stuart Cunningham

United States District Court

Northern District of Tllinois

219 S. Dearborn Street

FROM: Thomas F. Strubbe, Clerk

RE: 93-2099

LeRoy, Steven v. IL Racing Board

89 C 3433, Judge Nordberg,

App. 34

Chicago, IL 60604

Herewith is the mandate of this court

in this appeal, along with the Bill of

Coasts, if any. A certified copy of the

opinion/order of the court and judgment, if

any, and any direction as to costs shall

constitute the mandate.

App. 35

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

January 9,

Before

1995

Hon. FRANK H. EASTERBROOK, Circuit Judge

STEVEN LEROY,

Plaintiff-

Appellant,

No. 93-2099 Vv.

ILLINOIS RACING

BOARD, et. al.,

Defendants-—

Appellees.

Appeal from the

United States

District Court for

the Northern

District of

Illinois, Eastern

Division.

No. 89 C 3433

John A. Nordberg,

Judge.

Upon consideration of the "MOTION FOR

STAY OF MANDATE”, filed January 5, 1995, by

counsel for the appellant, Steven LeRoy,

IT IS ORDERED that the motion is

DENIED.

App.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN LEROY,

Plaintiff,

No. 89 C 3433

ILLINOIS RACING BOARD, JURY DEMANDED

ee Ne ee ee See See Nee ee ee

et al.,

Defendants.

COMPLAINT

Jurisdiction

1. This action is Drought pursuant

to the Fourth, Fifth and Fourteenth

Amendments to the Constitution of the

United States and 42 U.S.C. 1983.

Jurisdiction is conferred pursuant to 28

U.S.C. Sections 1331 and 1343.

The Parties

2 The plaintiff, STEVEN LeROY

("LeRoy") is and at all times pertinent

App. 37

App.

hereto was a resident of the County of

Kane, State of Illinois, in the Northern

District of Illinois, Eastern Division, and

since 1958 was licensed by the defendant

Illinois Racing Board, as an owner, driver,

and trainer of standardbred race horses

until the exclusions, suspensions, and

revocation complained of herein.

3. The defendant Illinois Racing

Board is an agency of the State of

Illinois, pursuant to Ill. Rev. Stat., ch.

8, par. 37-1 et seq-, and has’ the

authority, inter alia, to issue occupation

licenses to owners, trainers, and drivers,

to promulgate rules (including the rules

complained of herein), and to suspend or

revoke said licenses, pursuant to Ill. Rev.

Stat., ch. 8, pars. 37-15 and 37-16.

4. The defendants Thomas J. Garvey,

App. 38

Ralph M. Gonzales, Farrel] J. Griffin, Ray

H. Garrison, and Irwin G. Jann were at all

times pertinent hereto members of the

Illinois Racing Board pursuant to Ill. Rev.

Stat., ch. 37, par. 4, and rendered the

June 6, 1987, Order complained of herein.

. The defendants Richard E.

Garrett, Robert G. Ward, Timothy Schmidtz,

Frank Deglamine and Robert Milburn, were at

all times pertinent hereto Stewards, who

made the rulings which are complained of

herein.

Cause of Action

6. On April 27, 198°, pursuant to

Rule 25.19 promulgated by the defendant

Illinois Racing Board, a pickup truck

driven, but not owned, by LeRoy was

Searched by agents of the Illinois State

Department of Law Enforcement on the

grounds of Maywood Park Racetrack.

App. 39

7 « “Among a substantial collection

of rubbish and debris” under the passenger

seat of the vehicie, the agents of the

Department of Law Enforcement found a 60 cc

syringe and needle with a plastic cover on

the needle, which syringe and needle

contained no prohibited substances, which

needle was “clogged” and “the plunger was

caked with dry matter”, and with respect to

which there was no evidence of record that

the needle was “capable of being used for

the injection into any horse of any

chemical substance."

8. Irrespective of the aforesaid, on

April 27, 1987, defendants Richard E.

Garrett, Timothy Schmidtz, and Robert G.

Ward issued the Stewards Ruling No. 39,

(attached hereto as Exhibit "A"), excluding

LeRoy under Ill. Rev. Stat., ch. 8, par.

37-9e, pending further investigation and

App. 40

Subsequent Stewards inquiry.

9. On June 2, 1987, the aforesaid

defendant Stewards issued the following

Stewards Ruling No. 149 (attached hereto as

Exhibit "me Os

On April 27, 1987, Ill. Dept. Criminal

Investigation Agents in Maywood Park

Stable area searched a pickup truck

driven by Steven LeRoy and seized 1-60

cc syringe with needle attached.

An inquiry was conducted April 27,

1987 at which time Steven LeRoy was

excluded under the Horse Racing Act of

1975 pending lab analysis of the

needle and Syringe and further

investigation. A subsequent inquiry

was conducted on May 20, 1987.

The following facts were revealed:

i. The truck driven by Steven LeRoy

was owned by the Robt. LeRoy

Construction Co., and was used by

others besides Steven LeRoy.

2. The needle and 60 cc Syringe upon

examination was old, dirty and

the plunger was caked with dry

matter.

3. The Illinois Racing Board lab

analysis found no prohibited

substances in the needle and

Syringe.

App. 41

4. The syringe and needle was found

under the seat among a

substantial collection of rubbish

and debris.

5. Mr. LeRoy has no prior medication

violations.

After considering the testimony and

evidence in these inquiries, the Stewards

find Steven LeRoy in violation of I.R.B.

Medication Rule C9.10A. Therefore, Steven

LeRoy is hereby suspended for 90 days

(credit given for days served) or until

July 25, 1987 from all tracks license? by

the Illinois Racing Board. This suspension

shall include all horses owned wholly or in

part.

10. On June 6, 1987, after a hearing

pursuant to the request of LeRoy, the

defendants Illinois Racing Board and Thomas

J. Garvey, Ralph M. Gonzalez, Farrel J.

Griffin, Ray H. Garrison and Irwin G. Jann,

individually and in their official capacity

as members of the Illinois Racing Board,

rendered the “Order” (attached hereto as

Exhibit "C"), suspending LeRoy “from all

racetracks under the jurisdiction of the

App. 42

Illinois Racing Board for @ period of 90

days for a violation of Board Rule C9.10(a)

with credit to be Given for all time

served." The defendants Ray H. Garrison

and Irwin G. Jann concurred in part and

dissented in part from the aforesaid Order,

Stating, inter alia:

By a vote of 4 to 1, the Board found

that LeRoy on April 27, 1987 had

constructive possession of a needle on

the grounds of Maywood Park Racetrack,

and that such possession was in

violation of Board Rule C9.10(a). The

license of LeRoy was suspended for 90

days with credit for the exclusionary

period and time served under the June

2d stewards’ ruling but that such

Suspension shall run concurrently with

the suspension for possession of the

Syringe. I respectfully disagree with

this finding by the majority of the

Board.

As indicated by paragraph numbered 9

Of the Board’s Order, the evidence in

the record shows that the neck of the

needle, when seized on April 27, 1987,

was “clogged and that there was a

brown cake material in the plunger."

I find no evidence in the record that

On April 27, 1987 the needle was, in

the words of Rule C9.10(a), “capable

of being used for the injection into

App. 43

any horse of any chemical substance."

The finding in Paragraph 10 of the

Board’s Order seems to suggest that

the functional capability of the

needle gleamed by visual inspection at

the time of the Board hearing (June 6,

1987) should be determinative rather

than the evidence in the record as to

the capability of the needle when

possessed by LeRoy. I disagree.

Certainly, the word “needle“ as used

in Rule C9.10(a) must have a frame of

reference. Otherwise, the rule would

include sewing needles. I believe

that the correct frame of reference is

a needle that is “capable of being

used for injection into any horse of

any chemical substance."

11. On July 30, 1987, the aforesaid

defendant Stewards issued the following

Stewards Ruling Nos. 209 and 210 (attached

hereto as Exhibits et and "BE",

respectively):

Stewards Ruling No. 209:

Steven LeRoy is hereby suspended for

the remainder of the 1987 Sportsman's

Park harness meet or through and

including Sept. 8, 1987. Assessed a

civil penalty of $500.00 and placed on

probation through December 31, 1988.

On July 3, 1987 Mr. LeRoy displayed

App. 44

improper conduct by using offensive

and profane language towards an

Illinois Racing Board Official.

Viol. IRB Rule 20.1

Stewards Ruling No. 210:

Steven LeRoy is hereby suspended for

a period of 30 days (August 5, 1987

through and including September 3,

1987). This suspension shall run

concurrently with suspension period

Stated in I.R.B. Ruling #209. on July

3, 1987, Mr. LeRoy was observed on the

premises of Sportsman’s Park Racetrack

in direct violation of the terms of

his suspension as defined in i = P

Rule 22.3.

Note Rule Number 149, Sportsman’s Park.

Viol. IRB Rule 22.3

12. On August 4, 1988, the defendants

Robert Milburn, Frank Deglamine and Robert

G. Ward issued the following Stewards

Ruling No. 192 (attached hereto as Exhibit

“7* )s

In 1987 Steven LeRoy was the subject

of three stewards rulings Suspending

his license for violation of: IRB

Rule C9.10A (Possession of Needle or

Syringe Prohibited), IRB Rule 42.3

(Definition of Suspension), IRB Rule

App. 45

20.1 (Improper Conduct)

In Stewards Ruling #29 dated July 30,

1987, Mr. LeRoy was suspended,

assessed a civil penalty, and placed

on probation thru December 31, 1988

for using offensive and profane

language towards an Illinois Racing

Board Official.

On August 3, 1988 Mr. LeRoy violated

the terms of said ruling and IRB Rule

20.1 when he used threatening and

profane language towards the

Association Steward at Maywood Park.

Wherefore, Steven LeRoy is hereby

suspended for the balance of the year

1988. Any future applications are to

be forwarded to the Board for

consideration. During the period of

this suspension Mr. LeRoy is denied

the privileges and use of the grounds

of all race tracks under the

jurisdiction of the Illinois Racing

Board.

13. Irrespective of repeated

requests, the defendants have failed,

refused and/or neglected to vacate, remove,

expunge or otherwise vitiate the aforesaid

Order and Stewards Rulings, and the

exclusions, suspensions, fine, penalty, and

denial of privileges occasioned thereby.

App. 46

14. The aforesaid actions and conduct

were in violation and derogation of LeRoy’s

rights under 42 U.S.C. 1983 and/or the

Fourth, Fifth and/or Fourteenth Amendments

to the Constitution of the United States.

15. The Rules of the Illinois Racing Board

under which LeRoy was searched, excluded,

Suspended, fined, penalized and denied his

privileges and use of the grounds of all

racetracks under the jurisdiction of the

Illinois Racing Board are unlawful,

Overbroad, arbitrary, capricious,

unreasonable, a denial of the equal

protection of the laws, and/or otherwise

unconstitutional on their face and/or as

applied to the facts and circumstances of

the case.

16. The defendant knew, or reasonably

should have known that their conduct and

actions were in violation of LeRoy’s rights

App. 47

under 42 U.S.C. 1983 and/or the Fourth,

Fifth and/or Fourteenth Amendments to the

Constitution of the United States and that

the Rules of the Illinois Racing Board

under which LeRoy was searched, excluded,

suspended, fined, penalized and denied his

privileges and use of the grounds of all

racetracks under the jurisdiction of the

Illinois Racing Board are unlawful,

overbroad, arbitrary, capricious,

unreasonable, a denial of the equal

protection of the laws, and/or otherwise

unconstitutional on their face and/or as

applied to the facts and circumstances of

the case, by reason, inter alia of the

decision in the case of Serpas V. Schmidt,

621 F. Supp. 734 (N.D. Ill. 1985), affirmed

827 F. 2d 23 (7th Cir. 1987), cert. denied

U.S. , 108 S. Ct. 1075 (1988).

17. By reason of the aforesaid

App. 48

i) i at a a

conduct and actions of the defendants, and

each of then, LeRoy suffered substantial

damage, loss and injury.

18. In addition and alternatively,

the conduct and actions of the defendants

and each of them, were intentional and/or

done with reckless or callous indifference

to and/or disregard of LeRoy’s federally

protected rights, and LeRoy is entitled to

and should be awarded punitive damages

against any and all such defendants who are

found upon trial to have had such

intention, indifference to, and/or

disregard of the aforesaid constitutional

and/or statutory rights.

19. Unless restrained and enjoined,

the defendants will continue to violate the

aforesaid constitutional and/or statutory

rights of LeRoy and other Owners, drivers

and trainers of Standardbred race horses

App. 49

under their jurisdiction in the State of

Illinois.

20. With respect to the injunctive

aspects of this case, LeRoy has no adequate

remedy at law.

Prayer

WHEREFORE, the plaintiff, Steven

LeRoy, respectfully prays that:

i. The Court find, adjudge, and

declare that the conduct and actions of the

defendants were in violation of LeRoy’s

constitutional and/or statutory rights;

2. The Court order that the

defendants rescind, vacate, remove, and

expunge the exclusions, suspensions, fine

and/or penalty involved herein; and that

LeRoy be declared to be in good standing

and reinstated to all rights and

privileges.

3. A judgment be entered in favor of

App. 50

LeRoy and against the defendants, and each

of then, individually and/or in their

official capacity for such compensatory and

punitive damages as are found appropriate

upon the trial of this cause;

4. A preliminary, and upon the trial

of this cause, a permanent injunction be

issued against the defendants, individually

and in their cfficial capacity, restraining

and enjoining them from violating the

constitutional and/or statutory rights

involved herein with respect to LeRoy and

all other Owners, drivers, and trainers of

Standardbred race horses under their

jurisdiction in the State of Illinois;

3. An award be entered in favor of

LeRoy and against the defendants, and each

of them individually and in their official

capacity, for the costs, expenses and

disbursements incurred in the prosecution

App. 51

of this action, and for reasonable

attorneys’ fees; and

6. The plaintiff, Steven LeRoy be

granted such other and further relief as

may be just, equitable and proper.

/s/ Lawrence Jay Weiner

LAWRENCE JAY WEINER

Attorney for Plaintiff Steven

LeRoy

Lawrence Jay Weiner

Schwartz & Freeman

401 North Michigan Avenue

Suite 3400

Chicago, Illinois 60611

312/222-0800

App. 52

STEWARDS RULING

NUMBER #39

DATE__APRIL 27, 1987

MAYWOOD PARK TROTTING

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED [ }

NAME STEVEN LEROY

* 2 «

THE ABOVE, IS HEREBY EXCLUDED UNDER THE

“ILLINOIS HORSE RACING ACT OF 1975" CHAP.

8 § 37-9E

POSSESSION OF HYPODERMIC SYRINGE AND NEEDLE

WITHIN THE CONFINES OF ILLINOIS RACING

BOARD LICENSED TRACK, MAYWOOD PARK.

THIS EXCLUSION SHALL REMAIN IN EFFECT

PENDING FURTHER INVESTIGATION AND

SUBSEQUENT STEWARDS INQUIRY.

App. 53

STEWARDS:

/s/ RICHARD E. GARRETT

STATE

/s/ TIMOTHY SCHMIDTZ

STATE

/s/ ROBERT G. WARD

ASSOCIATION

Exhibit "A"

STEWARDS RULING

NUMBER #149

DATE__JUNE 2, 1987

CHICAGO DOWNS

NAME OF ASSOCIATION

SPORTSMAN ’S_ PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME STEVEN LEROY

2 © @

On April 27, 1987, Ill. Dept. Criminal

Investigation Agents in Maywood Park stable

area searched a pickup truck driven by

App. 54

—————

Steven LeRoy and seized 1-60 cc

Syringe with needle attached.

An inquiry was conducted April 27, 1987 at

which time Steven LeRoy was excluded

under the Horse Racing Act of 1975 pending

lab analysis of the needle and syringe

and further investigation. A subsequent

inquiry was conducted on May 20, 1987.

The following facts were revealed:

Exhibit "B"

i. The truck driven by Steven LeRoy was

Owned by the Robt. LeRoy Construction

Co.»

and was used by others besides Steven

LeRoy.

yo The needle and 60 cc Syringe upon

examination was old, dirty and the

plunger

was caked with dry matter.

3. The Illinois Racing Board lab analysis

found no prohibited substances in

the needle and syringe.

4. The syringe and needle was found under

the seat among a substantial

collection of rubbish and debris.

S. Mr. LeRoy has no prior medication

violations.

After considering the testimony and

App. 55

evidence in these inquiries, the Stewards

find Steven LeRoy in violation of I.R.B.

Medication Rule C9.10A. Therefore, Steven

LeRoy is hereby suspended for 90 days

(credit given for days served) or until

July 25, 1987 from all tracks licensed by

the Illinois Racing Board. This suspension

shall include all horses owned wholly or in

part.

STEWARDS:

/s/ RICHARD E. GARRETT

STATE

/s/_ TIMOTHY SCHMIDTZ

STATE

/s/ ROBERT G. WARD

ASSOCIATION

Exhibit "B" (cont. )

App. 56

STATE OF ILLINOIS

ILLINOIS RACING BOARD

June 6, 1987, Board Meeting

In the Matter of )

) 87 H 012

Steven LeRoy )

ORDE

This cause came to be heard on the

request filed by Steven LeRoy ("Leroy") for

a hearing before the Illinois Racing Board

("Board"). On June 2, 1987, the stewards

at Maywood Park Racetrack ("Maywood")

Suspended LeRoy for possession of a

hypodermic needle and Syringe on the

grounds of Maywood in violation of the

Board’s medication rules. LeRoy had been

excluded by the Stewards on April 27, 1987

from all racetracks under the supervision

of the Board, for the possession of the

needle and syringe.

Pursuant to Section l4a of the

App. 57

Illinois Horse Racing Act of 1975

Ill.Rev.Stat. (1985) ch. 8, par. 37-14a

("Act"), 4a hearing was held before 4a

Hearing Officer appointed by the Board.

Steven LeRoy was present and represented by

counsel. The record made at the hearing,

including the transcript of the

proceedings, the exhibits admitted into

evidence and the closing arguments of

counsel, have been carefully reviewed by

the Board.

Exhibit "C"

WHEREFORE, the members of the Board

being fully advised in the premises hereby

make the following findings of fact and

conclusions of law:

1. We find the issue of LeRoy’s

prior exclusion to be moot and will address

here only the issue of the suspension.

App. 58

ae LeRoy, dob 07/5/27, SS 127-24-

4824, is a 60 year old resident of Elgin,

Illinois who has been licensed by the Board

Since 1958 as an owner/trainer/driver of

Standardbred racehorses.

. On April 27, 1987, LeRoy drove a

1974 blue Chevrolet pickup truck, license

plate number 49477b, onto the grounds of

Maywood. Upon his entrance to the backside

of the track, LeRoy was confronted by

members of the State Department of Law

Enforcement ("DLE") requesting that he

consent to a search of his vehicle. LeRoy

consented to said search.

4. The agents of the DLE searched

the back of the vehicle first and then

searched the cab. Under the passenger seat

of the vehicle, they found a 60cc syringe

and needle with a plastic cover on the

needle.

App. 59

5. Board Rule C9.10(a) reads as

follows:

a) Possession of a Hypodermic

Needle or Syringe

Prohibited

No person, except a veterinarian,

shall have in his possession

within any racetrack enclosure

any hypodermic syringe or needle

or any instrument capable of

being used for the injection into

any horse of any chemical

substance.

6. Leroy denied any knowledge of the

existence or ownership of the needle and

syringe. LeRoy testified that he has used

the truck to transport horses and horse

equipment from his farm to Illinois

racetracks for approximately five years.

7. LeRoy testified that he is aware

that needles and syringes are not allowed

on the backside of racetracks and that he

did not clean the interior of the truck

before driving on tne backside of the

racetrack. In addition, he did not look

App. 60

sree ee

a ee en AR AR RN ROR a

under the seat of the truck for any

possible prohibited items before he drove

on the backside of the track. However, he

has advised the Board that he will follow

that practice in the future.

8. the Board finds constructive

Possession on behalf of LeRoy as it

relates to the needle and Syringe found in

the vehicle driven by him on the day in

question.

9. LeRoy presented evidence at the

hearing that the neck of the needle was

clogged and that there was €@ brown cake

material in the Plunger and the needle and

Syringe were dirty. While the hypodermic

needle and syringe may have been dirty, all

that would be required to make it useable

would be for one to clean the needle and

Syringe. Rule C9.10(a) does not require a

completely sanitized and sterilized needle

App. 61

and or for a violation of the Rule.

10. We find that the needle and

syringe through a visual inspection is

functional and useable for injection into

a horse and _ therefore sufficient to

establish a violation of the rule.

WHEREFORE, IT IS HEREBY ORDERED that

Steven LeRoy is hereby suspending from all

racetracks under the jurisdiction of the

Illinois Racing Board for a period of 90

days for a violation of Board Rule C9.10(a)

with credit to be given for all time

served.

/s/_ Thomas J. Garvey

Thomas J. Garvey

/s/_ Ralph M. Gonzalez

Ralph M. Gonzalez

/s/ Farrel J. Griffin

Farrel J. Griffin

Concurring in part and dissenting in

part:

App. 62

On April 27, 1987, the stewards at

Maywood Park Racetrack excluded Steven

LeRoy from all racetracks in Illinois.

Under the stewards’ ruling, the exclusion

was to “remain in effect pending further

investigation and subsequent stewards’

inquiry" concerning his alleged possession

of a hypodermic Syringe and needle. He was

not charged at the time of the exclusion

with any violation of any Board rule or

racing law and there was ao evidence or

finding by the stewards that LeRoy ’s

presence on a racetrack might call into

question the honesty and integrity of

racing in Illinois. LeRoy riled with the

Board a timely request for hearing in which

he challenges the legality and propriety of

the exclusion order.

Testimony was taken before a hearing

officer of the Board and the matter came

App. 63

before the Board for a decision on June 6,

1987. It was learned during the hearing on

June 6th that the stewards had completed

their investigation of LeRoy and that a

ruling had been issued on June 2nd

suspending LeRoy’s license because of his

possession of a syringe and needle on April

27, 1987 in violation of Board Rule

c9.10(a).

Under the terms of the exclusion

order, the period of the exclusion expired

on June 2nd, which was prior to the Board’s

hearing on June 6th, the Board, by a vote

of 5 to 0 held that the exclusion issue was

moot at the time of the hearing. I join in

that decision. However, I would also find

that the exclusion under the circumstances

present here, was clearly improper.

By a vote of 5 to 0, the Board found

that LeRoy on April 27, 1987 had

App. 64

constructive possession of a Syringe on the

grounds of Maywood Park Racetrack, and that

such possession was in violétion of Board

Rule C9.10(a). The Board Suspended the

license of LeRoy for 90 days (with credit

for the exclusion period between April 27

and June 2nd and credit for time already

served under the Stewards’ ruling of June

2nd) because of the violation. I join in

that decision.

By a vote of 4 to 1, the Board found

that LeRoy on April 27, 1987 had

constructive possession of a needle on the

grounds of Maywood Park Racetrack, and that

Such possession was in violation of Board

Rule C9.10(a). The license of LeRoy was

Suspended for 90 days with credit for the

exclusionary period and time served under

the June 2nd concurrently with the

Suspension for possession of the syringe.

App. 65

I respectfully disagree with this finding

by the majority of the Board.

As indicated by paragraph numbered 9

of the Board’s Order, the evidence in the

record shows that the neck of the needle,

when seized on April 27, 1987, was "clogged

and that there was a brown cake material in

the plunger." I find no evidence in the

record that on April 27, 1987 the needle

was, in the words of Rule cC9.10(@),

“capable of being used for the injection

into any horse of any chemical substance."

The finding in Paragraph 10 of the

Board’s Order seems to suggest that the

functional capability of the needle gleamed

by visual inspection at the time of the

Board hearing (June 6, 1987) should be

determinative rather than the evidence in

the record as to the capability of the

needle when possessed by LeRoy. I

App. 66

disagree.

Certainly, the word “needle” as used

in Rule C9.10(a) must have a frame of

reference. Otherwise, the rule would

include sewing needles. 1 believe that the

correct frame of reference is a needle that

is “capable of being used for injection

into any horse of any chemical substance."

[S/ Ray H. Garrison

Ray H. Garrison

/[S/ Irwin G. Jann

Irwin G. Jann

Action taken by the Illinois Racing

Board at its July 6, 1986 Board Meeting.

/S/ William J. Bissett

William J. Bissett

Executive Director

Order Published/Mailed:

September 22, 1987

Date

App. 67

STEWARDS RULING

NUMBER #209

DATE__ JULY 30, 1987

FOX VALLEY TROTTING

NAME OF ASSOCIATION

SPORTSMAN ’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C J

NAME STEVEN LEROY

* * *

STEVEN LEROY IS HEREBY SUSPENDED FOR THE

REMAINDER OF THE 1987 SPORTSMAN’S PARK

HARNESS MEET OR THROUGH AND INCLUDING SEPT.

8, 1987.

ASSESSED A CIVIL PENALTY OF $500.00 AND

PLACED ON PROBATION THROUGH DECEMBER 31,

1988.

ON JULY 3, 1987 MR. LEROY DISPLAYED

IMPROPER CONDUCT BY USING OFFENSIVE AND

PROFANE LANGUAGE TOWARDS AN ILLINOIS RACING

App. 68

> Sate lel

BOARD OFFICIAL

IRB RULE 20.1

STEWARDS:

{s/ RICHARD E. GARRETT

STATE

{s/ TIMOTHY SCHMIDTZ

STATE

Ls/ ROBERT G. WARD

ASSOCIATION

Exhibit "Dp"

STEWARDS RULING

NUMBER #209

DATE__ JULY 30, 1987

FOX VALLEY TROTTING

NAME OF ASSOCIATION

SPORTSMAN’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME STEVEN LEROY

kk &

STEVEN LEROY IS HEREBY SUSPENDED FOR A

PERIOD OF 30 DAYS (AUGUST 5, 1987 THROUGH

AND INCLUDING SEPTEMBER 3, 1987) THIS

SUSPENSION SHALL RUN CONCURRENTLY WITH

SUSPENSION PERIOD STATED IN I.R.B. RULING

#289. ON JULY 3, 1987, MR. LEROY WAS

OBSERVED ON THE PREMISES OF SPORTSMAN ’S

PARK RACETRACK IN DIRECT VIOLATION OF THE

TERMS OF HIS SUSPENSION AS DEFINED IN

I.R.S. RULE 22.3 NOTE RULING NUMBER 149,

SPORTSMAN’S PARK.

VIOL. IRB RULE 22.3

STEWARDS:

/s/_ RICHARD E. GARRETT

STATE

/s/_ TIMOTHY SCHMIDTZ

STATE

/s/_ ROBERT G. WARD

ASSOCIATION

Exhibit "E"

STEWARDS RULING

App. 70

oe FIED) -

NUMBER #192

DATE__AUGUST 4, 1988

ASSOCIATES RACING ASSN.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME STEVEN LEROY

& & &

IN 1987 STEVEN LEROY WAS THE SUBJECT OF

THREE STEWARDS RULINGS SUSPENDING HIS

LICENSE FOR VIOLATION OF:

IRB RULE C9.10A (POSSESSION OF NEEDLE OR

SYRINGE PROHIBITED) IRB RULE 22.3

(DEFINITION OF SUSPENSION)

IRB RULE 20.1 (IMPROPER CONDUCT) IN

STEWARDS RULING #29 DATED JULY 30, 1987,

MR. LEROY WAS SUSPENDED,

ASSESSED A CIVIL PENALTY, AND PLACED ON

PROBATION THRU DECEMBER 31, 1988 FOR USING

App. 71

OFFENSIVE AND PROFANE LANGUAGE TOWARDS AN

ILLINOIS RACING BOARD OFFICIAL.

ON AUGUST 3, 1988 MR. LEROY VIOLATED THE

TERMS OF SAID RULING AND IRB RULE 20.1 WHEN

HE USED THREATENING AND PROFANE LANGUAGE

TOWARDS THE ASSOCIATION STEWARD AT MAYWOOD

PARK.

WHEREFORE, STEVEN LEROY IS HEREBY SUSPENDED

FOR THE BALANCE OF THE YEAR 1988. ANY

FURTHER APPLICATIONS ARE TO BE FORWARDED TO

THE BOARD FOR CONSIDERATION. DURING

THE PERIOD OF THIS SUSPENSION MR. LEROY IS

DENIED THE PRIVILEGES AND USE OF THE

GROUNDS OF ALL RACE TRACKS UNDER THE

JURISDICTION OF THE ILLINOIS RACING BOARD.

STEWARDS:

/s/ ROBERT MILBURN

STATE

/s/ FRANK DEGLAMINE

STATE

/s/ ROBERT G. WARD

ASSOCIATION

Exhibit "F"

App. 72

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN LEROY,

Plaintiff,

Vv. No. 89 C 3433

ILLINOIS RACING BOARD,

et al.,

Defendant.

MEMORANDUM OPINION AND ORDER

SE MESRIUN AND ORDER

Steven LeRoy, licensed since 1958 by

the Illinois Racing Board as an owner,

driver and trainer of Standardbred race

horses, brings suit under 42 U.S.C. § 1983

against the IRB, its members and five

racing stewards. LeRoy’s complaint accuses

the defendants of violating his rights

under the fourth, fifth and fourteenth

amendments.

LeRoy makes the following allegations.

App. 73

On April 27, 1987, at Maywood Park

Racetrack, agents of the Illinois State

Department of Law Enforcement searched a

pickup truck driven, but not owned, by

LeRoy. The search, conducted pursuant to

IRB Rule 25.19, resulted in the discovery

of a 60 cc syringe and needle amidst "a

substantial collection of rubbish and

debris" under the passenger seat.

Complaint q 7. three of the defendant

stewards (Richard E. Garrett, Timothy

Schmidtz and Robert G. Ward) issued a

ruling immediately “excluding” LeRoy from

further racing activity pending

investigation into whether LeRoy violated

IRB Rule 9.10A, prohibiting the possession

of needles or syringes; this was followed

on June 2, 1987, by a steward’s ruling that

suspended LeRoy from all tracks licensed by

the IRB. Id. W@ s-9. On June 6, 1987,

App. 74

Renee ee

after a hearing, the IRB confirmed LeRoy’s

Suspension. Id. q 10.

Next, on July 30, 1987. the same three

stewards issued a pair of Rulings, Nos. 209

and 210. Ruling 209 imposed a civil

penalty of $500, placed LeRoy on probation

through December 31, 1988, and suspended

LeRoy for the remained of the Sportsman’s

Park harness meet (or through and including

September 8, 1987); the charge was

“dispiay{ing] improper conduct by using

offensive and profane language towards an

Illinois Racing Board official," in

violation of IRB Rule 20.1. ag. @ ii.

Ruling 210 suspended LeRoy for thirty days,

to run concurrently with the Ruling 209

Suspension; the charge under Ruling 210

that LeRoy had been observed on the grounds

of Sportsman’s Park in violation of his

previous suspension, thus further violating

App. 75

IRB Rule 22.3.

Finally, on August 4, 1988, another

group of stewards (defendant Ward as well

as defendants Frank Deglamine and Robert

Milburn) suspended LeRoy for the remainder

of 1988 on a charge of having the day

before once more used “threating [sic] and

profane language towards the Association

Steward at Maywood Park" in violation of

Ruling 209 and Rule 20.1. All suspensions

had been served by the time this complaint

was filed. The complaint also attaches

several exhibits documenting the

proceedings against LeRoy.

LeRoy requests 4 declaration that the

defendant’s conduct was unlawful, an

injunction against further such activity,

a cleansing of his record, and costs,

attorneys fees and money damages, both

punitive and compensatory.

App. 76

The defendants move to dismiss

pursuant to Fed. R. Civ. P. 12(b) (6),

arguing several grounds in Support of their

motion. In considering this motion, the

Court accepts as true all well-pleaded

factual allegations and draws all

reasonable inferences in plaintiff’s favor.

Marmon Group, Inc. v. Rexnord, Inc., 822

F.2d 31, 34 (7th Cir. 1987). Because the

complaint stumbles on a combination of

qualified immunity, failure to allege

substantive constitutional violations and

lack of specificity in pleadings, the Court

orders it dismissed.

The doctrine of qualified immunity

shields government officials from liability

for civil damages "“‘insofar as their

conduct does not violate clearly

established statutory or constitutional

rights of which a reasonable person would

App. 77

have known.’" Rakovich v. Wade, 850 F.2d

1180, 1205 (7th Cir.) (en banc) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982), cert. denied, 109 S. Ct. 497

(1988)). As Rackovich made clear, a civil

rights plaintiff bears the burden of

showing that the law violated was clearly

established at the time of the alleged

constitutional violation. Id. at 1209.

Accord Hannon v. Turnage, No. 88-2130, slip

op. at 5 (7th Cir. Jan. 4, 1990).

In his memorandum opposing the motion

to dismiss, LeRoy identifies several

purported constitutional violations.

Primarily, LeRoy contends that the search

of the truck was conducted pursuant to the

consent extracted under IRB Rule 25.19, and

that searches under this rule have been

held unlawful under the fourth amendment by

Serpas v. Schmidt, 621 F. Supp. 734 (N.D.

App. 78

Ill. 1985), aff'd, 827 F.2d 23 (7tR Cis.

1987) (see 827 F.2d at 26 for the text of

IRB Rule 25.19). He also appears to argue

that this search constituted a denial of

equal protection and a deprivation of

substantive due process. He also raises

the latter claims with respect to the

disciplinary proceedings related to Rules

22.3 and 20.1. And with respect to Rule

20.1, LeRoy argues that it is vague,

overbroad or both.

The allegations made concerning the

lawfulness of the search are contradicted

by the exhibits attached to the complaint.

LeRoy implies that the search was made

pursuant to the “statutory consent”

required by Rule 25.19. But a copy of the

IRB Order of June 6, 1987 (attached to the

complaint as Exhibit C), states that police

officers received LeRoy’s consent before

App. 79

searching his truck. Under Fed. R. Civ. P.

10(c), “{wjhen a4 disparity exists between

the written instruments annexed to the

pleadings and the allegations in the

pleadings, the written instrument will

control." 5 C. Wright & A. Miller, Federal

Practice and Procedure §1327, at 492-93

(1969). Thus, the complaint effectively

alleges that the truck was searched with

LeRoy’s consent. It does not violate the

fourth amendment to search a vehicle with

the owner’s consent. See United States v.

Rodriguez, No. 88-2952, slip op. at 5-6

(7th Cir. Nov. 1, 1989). Naturally, if the

complaint does not allege a violation of

the fourth amendment, the defendants are

entitled to qualified immunity on this

ground.’

1 Byven if LeRoy had adequately pleaded a

search performed solely pursuant to the consent

extracted by Rule 25.19, defendants might well

App. 80

Regarding the equal protection Claim,

LeRoy apparently argues in his memorandum

that he received more severe punishment

than other horsemen have received. But

there are no factual allegations in the

Pleadings to support this contention.

Although LeRoy “respectfully submits that

the defendants will, through discovery, be

reminded of the facts upon which this equal

protection claim is based," Memorandum, at

14, he takes the rules of notice pleading

have been entitled to qualified immunity. The

law relevant to the question of qualified

immunity is the law that was extant at the time

of an alleged constitutional violation.

Rackovich, 850 F.2d at 1209. According to the

complaint, the search was made on April 27,

1987. The IRB hearing that confirmed the

Suspension was held on June 6, 1987. By this

time, the Illinois Appellate Court and the

Court of Appeals for the Seventh Circuit appear

to have taken strongly differing views

concerning’ the constitutionality of such

action. Compare People v. Strauss, 502 N.E.2d

1287, 1289 (ill. Ap. lst Dist. 1986) (declining

to follow district court decision in Serpas )

With Serpas, 827 F.2d at ro The Court,

however, need not pass on this issue.

App. 81

to be far more elastic than they actually

are. As the Seventh Circuit has held

repeatedly, plaintiff must"’ se out

sufficient factual mater to outline the

elements of his cause of action or claim,

proof of which is essential to recovery.’"

Sutliff, Inc. v. Donovan Companies, 727

F.2d 648, 654 (7th Cir. 1984) (quoting

Daves v. Hawaiian Dredging Co., 114 F.

Supp. 643, 645 (D. Haw. 1953)).-

LeRoy has simply alleged nothing in

his complaint concerning treatment

violating the equal protection clause. It

is a@ifficult to make out an equal

protection claim absent discrimination on

invidious grounds. See Vukadinovich v.

Bartels, 853 F.2d 1387, 1392 (7th

Cir. 1988) (To make out selective

prosecution claim, “‘(plaintiff] must

provide evidence that persons similarly

App. 82

situated have not been prosecuted. Second,

[plaintiff] must show that the decisions

were made on the basis of an unjustifiable

standard ...’ such as race, religion, or

other arbitrary classification.’’")

(quoting Government of the Virgin Islands

v. Harrigan, 791 F.2d 34, 36 (zu «CSF.

1986)); D’Acquisto v. Washington, 640 F.

Supp. 594, 625 (N.D. Ill. 1986) ("[T)he

mere failure of those who administer [a law

or regulation] to treat all persons who

have violated it with complete equality

does not of itself infringe the

constitutional principle of equal

protection."). Because the complaint fails

to allege facts to support a claim of

differential treatment violative of equal

protection, LeRoy has failed to state &

cause of action. It follows that the

defendants would be qualifiedly immune on

App. 83

this ground.

Regarding due process, LeRoy ’s

memorandum expressly disavows reliance on

procedural due process, but contends that

he has alleged a claim for violation of

substantive due process. He invokes an old

Seventh Circuit case (see Jeffries v.

Turkey Run Consolidated School District,

492 F.2d 1, 3-4 (7th Cir. 1974)) and two

recent cases from outside the Seventh

Circuit (see Newman v. Commonwealth of

Massachusetts, 884 F.2d 19, 24-25 (1st cir.

1989), and Wood v. Ostrander, 879 F.2d 583,

489 (9th Cir. 1989)). In an area as

amorphous as substantive due process, it is

essential that plaintiff find the latest

cases on point (as well as those cases

describing the law at the time of an

alleged violation), and not only that, but

find them from the Seventh Circuit.

App. 84

The Seventh Circuit’s most recent

decision on substantive due process is

Polenz v. Parrott, 883 F.2d 551 (7th Cir.

1989). In Polenz the court of appeals

interpreted the doctrine this way: "[T)he

Standard implies that a Substantive due

process claim based on a state-created

property interest is cognizable where a

plaintiff claims either a violation of some

other substantive constitutional right or

that the state law remedies are

inadequate." Id. at 558. That statement

of the law is controlling here. Having

examined the complaint, the Court concludes

that it alleges neither a violation of a

separate constitutional right nor that the

State law remedies were inadequate. The

complaint therefore fails to state a cause

of action, and defendants thus are also

App. 85

lillie ii,

-_—-

entitled to qualified immunity.®

LeRoy also attempts to invoke

doctrines protecting the free exercise of

speech, arguing that the prohibition of

“improper language" or “conduct” does not

“provide adequate warning of the type of

conduct within its scope." Memorandum, at

20. But the complaint relates none of the

factual circumstances concerning the

language that resulted in the Rule 20.1

suspensions. It does not state what LeRoy

is alleged to have said, to whom he is

alleged to have said it, or the details of

the incidents leading to the suspensions.

The Court cannot consider LeRoy’s arguments

outside the context of the facts of the

case. Cf. Landstrom v. Illinois Dep’t of

2 Moreover, the law appears to have

been far from settled at the time of the

actions complained of. See Polenz, 883 F.2d

at 557-58.

App. 86

Children and Family Services, 699 F. Supp.

1270, 1277-80 (N.D. Ill. 1988), aff’d, No.

88-3206 (7th Cir. Jan. 9, 1990).

Overbreadth challenges are not

favored. See Massachusetts v. Oakes, 109

S. Ct. 2633 (1989) ("We have therefore

referred to overbreadth as ‘manifestl[y]

strong medicine’ that is employed

‘sparingly, and only as a last resort.’")

(quoting Broadrick v. Oklahoma 413 U.S.

601, 613 (1973)). "{Wjhere conduct and not

merely speech is involved, we believe that

the overbreadth of a statute must not only

be real, but substantial as well, judged in

relation to the statute’s plainly

legitimate sweep." Broadrick, 413 U.S. at

615. Rule 20.1 forbids both “improper

language" and “improper conduct" directed

toward state racing officials; the stewards

ruling of July 30, 1987 (Exhibit D) charged

App. 87

LeRoy with “improper conduct by using

offensive and profane language towards

(sic] an Illinois Racing Board official,"

while the ruling of August 4, 1988 (Exhibit

F) charged LeRoy with using “threating

[sic}\] and profane language towards the

association steward at Maywood Park." The

complaint does not describe whether merely

speech was involved, or whether it was

accompanied by conduct. Moreover, the

Supreme Court has indicated that statutes

with otherwise excessive scope can be

upheld if they can be given a proper

limiting construction. See Frisby v.

Schultz, 108 S. Ct. 2495, 2501 (1988). As

for the vagueness challenge, a description

of the alleged incidents is indispensable.

See Village of Hoffman Estates v. Flipside,

455 U.S. 489, 495 (1982) ("A plaintiff who

engages in some conduct that is clearly

App. 88

proscribed cannot complain of the vagueness

of the law as applied to the conduct of

others. A court should therefore examine

the complainant’s conduct before analyzing

other hypothetical applications of the

law."). The pleading is therefore

deficient in this respect. See Sutliff,

727 F.2d at 654.

A further difficulty is the question

whether LeRoy spoke out on a Matter of

public concern, or merely uttered his

“purely personal complaint[{]." Landstrom,

699 F. Supp. at 1280, aff'd, No. 88-3206,

Slip op. at 16-18. Landstrom teaches that,

to invoke the first amendment in a § 1983

case, both private citizens and public

employees must have “adequately alleged

statements which, among other things,

“tough upon a matter of public concern’ and

thus implicate the first amendment." ig.,

App. 89

Oooo

slip op. at 17. For that matter, LeRoy’s

status as a licensed horseman may more

nearly place him the category applicable to

public employees than in the category of

purely private citizens. There is no

reason apparent to the Court why the

disciplinary concerns governing the public

employment cases would not be applicable to

the state’s interests in regulating the

behavior of its licensed horsemen.

Whatever be the case, LeRoy’s complaint has

failed to allege sufficient facts for a

consideration of these issues.

Plaintiff having failed to plead

sufficient facts to state a claim upon

which relief can be granted under the first

amendment, defendants are accordingly

entitled to qualified immunity as well.

As for the fifth amendment challenge

pleaded in the complaint, LeRoy has not

App. 90

attempted in his memorandum to explain the

basis of this allegation. Its relevance to

this case is certainly not apparent.

A final problem is the nature of this

lawsuit as a mixed official-capacity,

individual-capacity lawsuit. The

defendants moved to dismiss the action

against the IRB on the ground that, as a

state agency, it is in fact the state of

Illinois, and actions for money damages

against a state are barred under the

eleventh amendment. This argument finds

Support in the cases. See, e.g., Cannon v.

University of Health Sciences, 710 F.2d

351, 356-57 (yen Car. 1983) (state

universities are the state for purposes of

eleventh amendment). While LeRoy asserts

his right to bring an official capacity

Suit for money damages against the state

and its officials, he cites only cases

App. 91

supporting suit against state officials in

their official capacities for injunctive

relief. Based on the pleadings and

argument, the IRB is entitled to dismissal

as a party defendant and the individual

officials in their official capacities are

entitled to dismissal insofar as the

complaint seeks money damages. Will v.

Michigan Dep’t of State Police, 109 S. ct.

2304 (1989).

The Supreme Court’s development of the

qualified immunity doctrine is intended to

spare government officials from the burden

of defending unnecessary lawsuits. See

Anderson v. Creighton, 107 S. Ct. 3034,

3042 (1987). “For this reason, we have

emphasized that qualified immunity

questions should be resolved at the

earliest possible state of litigation."

Id. at 3042 n.6. This may entail dismissal

App. 92

of an action prior to discovery, id., and

upon a motion to dismiss, see Landstron,

supra. While pleadings standards in

federal court are not rigorous, a civil

rights plaintiff must at least state the

factual circumstances giving rise to his

Claim. Plaintiff has failed to do so here,

making only the barest statement that he

was wronged, but completely failing to

plead facts to Support this contention. He

has therefore has not stated a Claim upon

which relief can be granted. It follows

that, based upon the pleading, the

defendants in their individual Capacity are

qualifiedly immune from suit for damages as

well.

For the reasons stated above, the

complaint is dismissed. Because dismissal

is not a favored means of terminating

litigation, the Court will permit LeRoy to

App. 93

file an amended complaint by February 9,

1990, addressing the concerns discussed in

this memorandum opinion.* Any proffered |

complaint must, of course, comply with

plaintiff and counsel’s duty to the Court

under Fed. R. Civ. P. 11. If no amended

complaint is filed, the Court will enter a

final judgment dismissing this case with

prejudice.

ENTER:

3 plaintiff should not read this

Court’s lenience as encouragement. It does

not appear at this time that even an

amended complaint could surmount’ the

qualified immunity defense to plaintiff’s

claim for money damages. Plaintiff will,

in any event, have to make a drastically

better showing as to the clearly

established nature of the law than he made

in his response to defendants’ motion to

dismiss.

App. 94

Judge

DATED:

January 18,

fs/_ John A. Nordberg

JOHN A. NORDBERG

United States District

1990

App.

MINUTE ORDER

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS, EASTERN

DIVISION

JUDGE: JOHN A. NORDBERG

CASE NO.: 89 C 3433

DATE: JANUARY 19, 1990

CASE TITLE: LEROY V. ILLINOIS

RACING BOARD et al.

JUDGMENT IS ENTERED AS FOLLOWS:

Enter memorandum opinion and order

dismissing the plaintiff’s case with

prejudice. Plaintiff is permitted to file

an amended complaint by February 9, 1990.

If no amended complaint is filed, the Court

will enter final judgment dismissing this

case with prejudice.

App. 96

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN LEROY,

Plaintiff,

Vv. No. 89 C 3433

ILLINOIS RACING BOARD,

et al.,

Defendants.

AMENDED COMPLAINT

Jurisdiction

3. This action is brought pursuant

to the Fourth, Fifth and Fourteenth

Amendments to the Constitution of the

United States and 42 U.8.C. 1983.

Jurisdiction is conferred pursuant to 28

U.S.C. Sections 1331 and 1343.

The Parties

a. The plaintiff, STEVEN LeROY

App. 97

("LeRoy") is and at all times pertinent

hereto was a resident of the County of

Kane, State of Illinois, in the Northern

District of Illinois, Eastern Division, and

since 1958 was licensed by the defendant

Illinois Racing board, as an owner, driver,

and trainer of standardbred race horses

until the exclusions, suspensions, and

revocation complained of herein.

3. The defendant Illinois Racing

Board is an agency of the State of

Illinois, pursuant to Ill. Rev. Stat., Ch.

8, par. 37-1 et seqd., and has’~ the

authority, inter alia, to issue occupation

licenses to owners, trainers, and drivers,

to promulgate rules (including the rules

complained of herein), and to suspend or

revoke said licenses, pursuant to Ill. Rev.

Stat., Ch. 8, part. 37-15 and 37-16.

App. 98

4. The defendants Thomas J. Garvey,

Ralph M. Gonzales, Farrel J. Griffin, Ray

H. Garrison, and Irwin G. Jann were at all

times pertinent hereto members of the

Illinois Racing Board pursuant to Ill. Rev.

Stat., Ch. 37, par. 4, and rendered the

June 6, 1987, Order complained of herein

and are sued individually and in their

official capacity as members of the

Illinois Racing Board.

S$. The defendants Richard E.

Garrett, Robert G. Ward, Timothy Schmidtz,

Frank Deglamine and Robert Milburn, were at

all times pertinent hereto Stewards, who

made the rulings which are complained of

herein, and are sued individually and in

their official capacity as Stewards.

Cause of Action

6. On April 27, 1987, pursuant to

App. 99

Rule 25.19 promulgated by the defendant

Illinois Racing Board, a pickup truck

driven, but not owned, by LeRoy was

searched by agents of the Illinois State

Department of Law Enforcement on the

grounds of Maywood Park Racetrack. LeRoy

“consented” to the search solely by reason

that Rule 25.19 required him to give hi

consent as a condition to the obtainment

and maintenance of his racing license.

7. “Among a substantial collection

of rubbish and debris” under the passenger

seat of the vehicle, the agents of the

Department of Law Enforcement found a 60 cc

syringe and needle with a plastic cover on

the needle, which syringe and needle

contained no prohibited substances, which

needle was "clogged" and “the plunger was

caked with dry matter" and with respect to

App. 100

which there was no evidence of record that

the needle was “Capable of being used for

the injection into any horse of any

chemical substance."

8. In addition, the defendants

tested the horse LeRoy was driving on said

date, and the results of that test revealed

that the horse was not administered any

prohibited substances or medication.

9. Irrespective of the aforesaid, on

April 27, 1987, defendants Richard Ek.

Garrett, Timothy Schmidtz, and Robert G.

Ward issued the Stewards Ruling No. 39,

(attached hereto as Exhibit "A"), excluding

LeRoy under Ill. Rev. Stat., Ch. 8, par.

37-9e, pending further investigation and

subsequent Stewards inquiry.

10. On June 2, 1987, the aforesaid

defendant Stewards issued the following

App. 101

Stewards Ruling No. 149 (attached hereto as

Exhibit "B"):

On April 27, 1987, Ill. Dept. Criminal

Investigation Agents in Maywood Park

stable area searched a pickup truck

driven by Steven LeRoy and seized 1-60

cc syringe with needle attached.An

inquiry was conducted April 27, 1987

at which time Steven LeRoy was

excluded under the Horse Racing Act of

1975 pending lab analysis of the

needle and syringe and further

investigation. A subsequent inquiry

was conducted on May 20, 1987.

The following facts were revealed:

1. The truck driven by Steven LeRoy

was owned by the Robt. LeRoy

Construction Co., and was used by

others besides Steven LeRoy.

2. The needle and 60 cc syringe upon

examination was old, dirty and

the plunger was caked the ary

matter.

3. The Illinois Racing Board lab

analysis found no prohibited

substances in the needle and

syringe.

4. The syringe and needle was found

under the seat among a

substantial collection of rubbish

and debris.

App. 102

S. Mr. LeRoy has no prior medication

violations.

After considering the testimony and

evidence in these inquiries, the

Stewards find Steven LeRoy in

violation of I.R.B. Medication Rule

C9.10A. Therefore, Steven LeRoy is

hereby suspended for 90 days (credit

given for days served) or until July

25, 1987 from all tracks licensed by

the Illinois Racing Board. This

Suspension shall include all horses

owned wholly or in part.

11. On June 6, 1987, after a hearing

pursuant to the request of LeRoy, the

defendants Illinois Racing Board and Thomas

J. Garvey, Ralph M. Gonzalez, Farrel J.

Griffin, Ray H. Garrison and Irwin G. Jann,

individually and in their official capacity

as members of the Illinois Racing Board,

rendered the "Order" (attached hereto as

Exhibit “C"), suspending LeRoy “from all

race tracks under the jurisdiction of the

Illinois Racing Board for a period of 90

days for a violation of Board Rule C9.10(a)

App. 103

with credit to be given for all time

served." The defendants Ray H. Garrison

and Irwin G. Jann concurred in part and

dissented in part from the aforesaid Order,

stating, inter alia:

By a vote of 4 to l, the Board found

that LeRoy on April 27, 1987 had

constructive possession of a needle on

the grounds of Maywood Park Racetrack,

and that such possession was in

violation of Board Rule C9.10(a). The

license of LeRoy was suspended for 90

days with credit for the exclusionary

period and time served under the June

2a stewards’ ruling but that such

suspension shall run concurrently with

the suspension for possession of the

syringe. I respectfully disagree with

this finding by the majority of the

Board.

As indicated by paragraph numbered 9

of the Board’s Order, the evidence in

the record shows that the neck of the

needle, when seized on April 27, 1987,

was “clogged and that there was a

brown cake material in the plunger”.

I find no evidence in the record that

on April 27, 1987, the needle was, in

the words of Rule C9.10(a), “capable

of being used for the injection into

any horse of any chemical substance."

App. 104

The finding in Paragraph 10 of the

Board’s Order seems to Suggest that

the functional capability of the

needle gleamed by visual inspection at

the time of the Board hearing (June 6,

1987) should be determinative rather

than the evidence in the record as to

the capability of the needle when

possessed by LeRoy. I disagree.

Certainly, the word “needle" as used

in Rule C9.10(a) must have a frame of

reference. Otherwise, the rule would

include sewing needles. I believe

that the correct frame of reference is

a needle that is “capable of being

used for injection into any horse of

any chemical substance".

12. On July 30, 1987, based upon the

aforesaid

unconstitutional conduct and actions, the

aforesaid

defendant Stewards issued the following

Stewards Rulings

No. 209 and 210 (attached hereto as Exhibit

“eo” Ge *e*,

respectively):

Stewards Ruli No. 209:

Steven LeRoy is hereby suspended for

the remainder of the 1987 Sportsman’s

Park harness meet or through and

including Sept. 8, 1987. Assessed a

App. 105

civil penalty of $500.00 and placed on

probation through December 31, 1988.

On July 3, 1987 Mr. LeRoy displayed

improper conduct by using offensive

and profane language towards an

Illinois Racing Board Official.

Viol. IRB Rule 20.1

Stewards Ruli No. 210:

Steven LeRoy is hereby suspended for

a period of 30 days (August 5, 1987

through and including September 3,

1987). This suspension shall run

concurrently with suspension period

stated in I.R.B. Ruling #209. On July

3, 1987, Mr. LeRoy was observed on the

premises of Sportsman’s Park Racetrack

in direct violation of the terms of

his suspension as defined in I.R.B.

Rule 22.3.

Note Rule Number 149, Sportsman’s Park.

Viol. IRB Rule 22.3

13. On August 4, 1988, based upon the

aforesaid unconstitutional conduct and

actions, the defendants Robert Milburn,

Frank Deglamine and Robert G. Ward issued

the following Stewards Ruling No. 192

(attached hereto as Exhibit "“F"):

App. 106

In 1987 Steven LeRoy was the subject

of three stewards rulings suspending

his license for violation of: IRB

Rule C9.10A (Possession of Needle or

Syringe Prohibited), IRB Rule 22.3

(Definition of Suspension), IRB Rule

20.1 (Improper Conduct)

In Stewards Ruling #29 dated July 30,

1987, Mr. LeRoy was suspended,

assessed a civil penalty, and placed

On probation thru December 31, 1988

for using offensive and profane

language towards an Illinois Racing

Board Official.

On August 3, 1988 Mr. LeRoy violated

the terms of said ruling and IRB Rule

20.1 when he _ used threating and

profane language towards the

Association Steward at Maywood Park.

Wherefore, Steven LeRoy is hereby

suspended for the balance of the year

1988. Any future applications are to

be forwarded to the Board for

consideration. During the period of

this suspension mr. LeRoy is denied

the privileges and use of the grounds

of all race tracks under the

jurisdiction of the Illinois Racing

Board.

14. Irrespective of repeated

requests, the defendants have failed,

refused and/or neglected to vacate, remove,

App. 107

expunge or otherwise vitiate the aforesaid

Order and Stewards Rulings, and _ the

exclusions, suspensions, fine, penalty, and

denial of privileges occasioned thereby.

15. The aforesaid actions and conduct

were in violation and derogation of LeRoy’s

rights under 42 U.S.C. 1983 and/or the

Fourth, Fifth and/or Fourteenth Amendments

to the Constitution of the United States.

16. The Rules of the Illinois Racing

Board under which LeRoy was searched,

excluded, suspended, fined, penalized and

denied his privileges and use of the

grounds of all racetracks under the

jurisdiction of the Illinois Racing Board

are unlawful, overbroad, arbitrary,

capricious, unreasonable, a denial of the

equal protection of the laws, and/or

otherwise unconstitutional on their face

App. 108

and/or as applied to the facts and

circumstances of the case.

17. The defendants denied LeRoy the

equal protection of the laws by reason that

defendants’ conduct and actions were

effected for an invidious purpose, namely

to punish LeRoy for the exercise and

assertion of his constitutional rights,

and/or deliberately based upon an

unjustifiable standard, i.e., the "consent"

based upon the same regulatory program

promulgated by the same defendants held by

this Court and the Seventh Circuit United

States Court of Appeals to have been

unauthorized and unconstitutional prior and

subsequent to the actions contained herein.

Serpis v. Schmidt, 621 F.Supp. 734 (N.D.

Ill. July 11, 1985), affirmed 808 F.2d 601,

606-607 (7th Cir. December 19, 1986),

App. 109

amended 827 F.2d 23, 29030 (7th Cir. 1987)

cert. denied 108 U.S. 1075 (1988), wherein

the Seventh Circuit held 827 £.2d at 29-

30):

The race track employees consented to

the searches based on a regulatory

program that required them to give

their consent as a condition of

employment. As we have already found,

however, the regulations were not

authorized by statute and were

unconstitutional because neither the

regulations nor the governing statute

confined the discretion of the state

officials conducting the searches.

Thus, the validity of the employees ’

consent was vitiated by the fact that

it was premised on the existence of

the otherwise unauthorized and

unconstitutional regulation.

Moreover, the sanctions imposed by

defendants against LeRoy were substantially

disparate and differential to those imposed

against other horsemen similarly situated,

as evidenced by the Stewards’ Rulings

attached hereto as Group Exhibit “G" and

incorporated herein by this reference, and

App. 110

the failure of the defendants to impose any

Sanctions upon either the owner of the

vehicle involved herein or upon the

passenger of the automobile under whose

seat the unusable needle and Syringe were

located in a pile of rubbish and debris.

18. The defendant knew, or reasonably

should have known that their conduct and

actions were in violation of LeRoy’s rights

under 42 U.S.C. 1983 and/or the Fourth,

Fifth and/or Fourteenth Amendments to the

Constitution of the United States and that

the Rules of the Illinois Racing Board

under which LeRoy was searched, excluded,

Suspended, fined, penalized and denied his

privileges and use of the grounds of all

racetracks under the jurisdiction of the

Illinois Racing Board are unlawful,

overbroad, arbitrary, Capricious,

App. 111

unreasonable, a denial of the equal

protection of the laws, and/or otherwise

unconstitutional on their face and/or as

applied to the facts and circumstances of

the case, by reason, inter alia of the

decision in the case of Serpas v. Schmidt,

supra. Defendants were “on notice" that

their actions violated clearly established

law. Rakovich v. Wade, 850 F.2d 1180, 1211

(7th Cir. 1987).

19. By reason of the aforesaid

conduct and actions of the defendants, and

each of them, LeRoy suffered substantial

damage, loss and injury.

20. In addition and alternatively,

the conduct and actions of the defendants

and each of them, were intentional and/or

done with reckless or callous indifference

to and/or disregard of LeRoy’s federally

App. 112

protected rights, and LeRoy is entitled to

and should be awarded punitive damages

against any and all such defendants who are

found upon trial to have had. such

intention, indifference to, and/or

disregard of the aforesaid constitutional

and/or statutory rights.

21. Unless restrained and enjoined,

the defendants will continue to violate the

aforesaid constitutional and/or statutory

rights of LeRoy and other owners, drivers

and trainers of standardbred race horses

under their jurisdiction in the State of

Illinois.

22. With respect to the injunctive

aspects of this case, LeRoy has no adequate

remedy at law.

WHEREFORE, the plaintiff, Steven

LeRoy, respectfully prays that:

1. The Court find, adjudge, and

declare that the conduct and actions of the

defendants were in violation of LeRoy’s

constitutional and/or statutory rights;

2. The Court order that the

defendants rescind, vacate, remove, and

expunge the exclusions, suspensions, fine

and/or penalty involved herein; and that

LeRoy be declared to being good standing

and reinstated to all rights and

privileges.

3. A judgment be entered in favor of

LeRoy and against the defendants, and each

of them, individually and/or in their

official capacity for such compensatory and

punitive damages as are found appropriate

upon the trial of this cause;

App. 114

4, A preliminary, and upon the trial

of this cause, a permanent injunction be

issued against the defendants, individually

and in their official capacity, restraining

and enjoining them from violating the

constitutional and/or statutory rights

involved herein with respect to LeRoy and

all other owners, drivers, and trainers of

Standardbred race horses under their

jurisdiction in the State of Illinois;

$. An award be entered in favor of

LeRoy and against the defendants, and each

of them individually and in their official

capacity, for the costs, expenses and

disbursements incurred in the prosecution

of this action, and for reasonable

attorneys’ fees; and

6. The plaintiff, Steven LeRoy be

granted such other and further relief as

App. 115

may be just, equitable and proper.

/s/ Lawrence Jay Weiner

LAWRENCE JAY WEINER

Attorney for Plaintiff

Steven LeRoy

Lawrence Jay Weiner

Schwartz & Freeman

401 North Michigan Avenue

Suite 3400

Chicago, Illinois 60611

312/222-0800

(EXHIBITS "A" THROUGH "F", INCLUSIVE, OF

THE AMENDED COMPLAINT ARE OMITTED BECAUSE

THEY ARE THE EXHIBITS SAME TO ORIGINAL

COMPLAINT) .

THE FOLLOWING CONSTITUTE GROUP EXHIBIT "G"

TO THE AMENDED COMPLAINT WITH THE STEWARTS’

SIGNATURES OMITTED)

STEWARDS RULING

NUMBER #4

DATE AUGUST 4, 1988

MAYWOOD TROTTING ASSOC.

NAME OF ASSOCIATION

YWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

App. 116

pee y ~

att te

HARNESS [X] THOROUGHBRED

C J

NAME DAN SHETLER, JR.

2 ¢& @

ON MAY 12, 1983, THE STEWARDS AT MAYWOOD

PARK CONDUCTED AN INQUIRY CONCERNING A

REPORT BY THE ILLINOIS RACING BOARD LAB.

THAT THE URINE SAMPLE #85370 LAB. 2, DATED

APRIL 28, 1983, MAYWOOD PARK, FROM THE

REVEALED THE PRESENCE OF IYRILAMINE

ANALOGLE HORS "KING CIDO"“ TRAINER, DAN

SHETLER, OWNERS: B. SHETLER AND LESLIE

MILLER, “KING CIDO" FINISH IN A DEAD HEAT

FOR WIN.

DAN. SHELTER WAS PRESENT AT THE INQUIRY BUT

WAS NOT REPRESENTED BY COUNSEL. MR.

SHELTER DID REQUEST THAT “KING CIDO"

RESERVE SAMPLE BE TESTED. ON JULY 7, 1983

THE I.R.B. LAB NOTIFIED THE STEWARDS THAT

THE REFEREE SAMPLE INDICATED THE PRESENCE

OF PHENYLPROPANOLAMINE. THE

PHENYLPROPANOLAMINE WAS NOT INDICATED AS

BEING PRESENT IN THE INITIAL REPORT OF

POSITIVE FINDING. AFTER HEARING ' THE

EVIDENCE AND CONSIDERING THE FACTS IN THIS

CASE, OWNER, TRAINER, DRIVER DAN SHELTER IS

HEREBY ASSESSED A 10 DAY FULL SUSPENSION.

GROUP EXHIBIT "G"

STEWARDS RULING

NUMBER #4

DATE__MARCH 10, 1983

App. 117

MAYWOOD PARK TROTTING

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME PHILIP N. FARONE JR.

& 2 @

THE ABOVE IS HEREBY FINED THE SUM OF $50.00

AND

PLACED ON PROBATION FOR THE REMAINDER OF

1983.

IMPROPER CONDUCT TOWARDS SECURITY AT

MAYWOOD PARK.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #38

DATE JUNE 29, 1983

CHICAGO DOWNS

NAME OF ASSOCIATION

App. 118

SPORTSMAN’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C J

NAME JIM DOUGLAS (GROOM)

x k& &€

IS HEREBY FINED THE SUM OF $50.00 FOR HIS

ACTION OF IMPROPER CONDUCT TOWARDS A

SECURITY OFFICER IN THE STABLE ARE WHEN

SAID SECURITY WAS IN THE PERFORMANCE OF HIS

DUTIES.

FURTHER, MR. DOUGLAS IS PLACED ON PROBATION

FOR THE BALANCE OF 1983 SPORTSMAN’S PARK

MEET.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #112

DATE__AUGUST 10, 1983

WESTERN ILLINOIS TROTTING, ASSN.

NAME OF ASSOCIATION

App. 119

QUAD CITY DOWNS

NAME OF RACE TRACK

EAST MOLINE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

{ ]

NAME EARNEST J. MILLER

x * &

FINED $100.00

ERNIE MILLER IS HEREBY FINED THE SUM OF

$100 FOR IMPROPER CONDUCT TOWARD A PERSON

SERVING UNDER THE ORDERS OF STEWARDS.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #61

DATE AUGUST 19, 1983

FOX VALLEY TROTTING

NAME OF ASSOCIATION

SPORTSMAN’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

App. 120

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME JEFFREY A. NORTHRUP

: @& @¢

THE ABOVE IS HEREBY FINED THE SUM OF $50.00

FOR USING

IMPROPER LANGUAGE TOWARDS AN OFFICIAL

DURING THE 10th RACE ON AUGUST 15, 1983.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #9

DATE__10/18/83

EGYPTIAN TROTTING ASSOC.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

App. 121

NAME MARSHALL THOMPSON

x & &

Hereby fined the sum of $200.00 and placed

on probation for the remainder of 1983.

Improper conduct and verbally abusive

towards security.

I.R.B. 20.1

STEWARDS RULING

NUMBER #56

DATE DECEMBER 14, 1983

EGYPTIAN TROTTING ASSOC.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

i 4

NAME MICHAEL FLABERTY

—

OWNER/TRAINER MICHAEL FLABERTY IS HEREBY

FINED THE SUM OF TWENTY-FIVE ($25) DOLLARS,

"OR IMPROPER CONDUCT TOWARD A SECURITY

OFFICIER.

VIOLATION I.R.B. RULE 20.1

FINE TO BE PAID WITHIN (48) HOURS

STEWARDS RULING

NUMBER #73

DATE__12-29-83

SOUTHERN ILL. TROT.

NAME OF ASSOCIATION

FAIRMOUNT PARK

NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME JEFFREY SALMON

*® &£ ©

Owner-trainer Jeffrey Salmon (dob 9-23-50)

(SS No. 488-52-4438) is hereby suspended 13

App. 123

days (December 19 thru December 31, 1983)

and ineligible for licensing for an

additional 17 days (thru January 17, 1984)

for being involved in an altercation in the

barn area on December 18, 1983, which

resulted in Mr. Salmon verbally and

physically assaulting a security guard and

Collinsville,

Illinois, police officer.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #74

DATE__12-29-83

SOUTHERN ILL. TROT.

NAME OF ASSOCIATION

FAIRMOUNT PARK

NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME WILLIAM DOWNS

Owner-trainer William Downs (dob 12-13-53)

(SS No. 401-74-9308) is hereby suspended 13

days (December 19 thru December 31, 1983)

and ineligible for licensing for an

additional 17 days (thru January 17, 1984)

for being involved in an altercation in the

barn area on December 18, 1983, which

resulted in Mr. Downs verbally and

physically assaulting a security guard and

Collinsville,

Illinois, police officer.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #76

DATE__12-29-83

SOUTHERN ILL. TROT.

NAME OF ASSOCIATION

FAIRMOUNT PARK

NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

[ ]

NAME BRENDA POE

App. 125

x *« *

Groom Brenda Poe (dob 1-9-58) (SS No. 429-

15-9181)

is hereby suspended 13 days (December 19

thru December 31, 1983) and ineligible for

licensing for an additional 17 days (thru

January 17, 1984) for being involved in an

altercation in the barn area on December

18, 1983, which resulted in Miss Poe

verbally and physically assaulting a

security guard and Collinsville, Illinois,

police officer.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #110

DATE 2-4-86

OGEDEN-FAIRMOUNT, INC.

NAME OF ASSOCIATION

FAIRMOUNT PARK

NAME OF RACE TRACK

COLLINSVILLE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

App. 126

NAME REGINALD BAKER

*& & @

Owner Reginald Baker (Ss No. 312-74-5812)

(dob 3-27-61)

is hereby suspended 30 days (February 4,

thru March 4, 1984) for being involved in

an altercation in the barn area on December

5, 1983, in which he physically assaulted

a security guard. During the term of this

Suspension, Mr. Baker is denied access to

and the privileges of the grounds of all

race tracks under the jurisdiction of the

Illinois Racing Board.

Illinois Racing Board Rule No. 20.1

STEWARDS RULING

NUMBER #35

DATE JULY 18, 1984

CHICAGO DOWNS ASSOC.

NAME OF ASSOCIATION

SPORTSMAN ’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

App. 127

NAME KYLE E. KLUTE

x * *

KYLE KLUTE IS FINED THE SUM OF $50.00 AND

PLACED

ON PROBATION FOR THE BALANCE OF THE YEAR

(1984) FOR

FORBIDDEN CONDUCT IN THE STABLE AREA

VIOL. IRB RULE 20.1

FINE TO BE PAID WITHIN 48 HOURS.

STEWARDS RULING

NUMBER #161

DATE SEPTEMBER 21, 1984

WESTERN ILLINOIS TROTTING ASSN

NAME OF ASSOCIATION

QUAD CITY DOWNS

NAME OF RACE TRACK

EAST MOLINE , ILLINOIS

LOCATION OF RACE TRACK

App. 128

HARNESS [X]

THOROUGHBRED

NAME DUNCAN PRICE

x * *

DUNCAN PRICE IS HEREBY FINED THE SUM OF

$100.00 FOR USING IMPROPER LANGUAGE TO AN

OFFICIAL AFTER THE 5TH RACE, SEPTEMBER 20,

1984.

VIOLATION 20.1 IRB

STEWARDS RULING

NUMBER #35

DATE FEB. 7, 1985

SUBURBAN DOWNS

NAME OF ASSOCIATION

HAWTHORNE RACE COURSE

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X]

THOROUGHBRED

C ]

App. 129

NAME KYLE E. KLUTE

x* *« *

KYLE KLUTE IS FINED THE SUM OF $50.00 AND

PLACED

ON PROBATION FOR THE BALANCE OF THE YEAR

(1984) FOR

FORBIDDEN CONDUCT IN THE STABLE AREA

VIOL. IRB RULE 20.1

FINE TO BE PAID WITHIN 48 HOURS.

STEWARDS RULING

NUMBER #55

DATE FEB. 7, 1985

SUBURBAN DOWNS

NAME OF ASSOCIATION

HAWTHORNE RACE COURSE

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C J

App. 130

NAME__MIRELLO MAZZULLA-DR. TR. OWNER

x« * &

THE ABOVE IS HEREBY FINED THE SUM OF

$200.00.

FOR IMPROPER CONDUCT TOWARDS THE RACING

SECRETARY ON FEB. 6, 1985.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #11

DATE MAY 28, 1985

CHICAGO DOWNS ASSOC.

NAME OF ASSOCIATION

SPORTSMAN’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

{ ]

NAME __ JAMES P. BUSCARINI

App. 131

x * *

THE ABOVE, IS HEREBY ASSESSED A CIVIL

PENALTY OF $25.00 FOR IMPROPER CONDUCT

TOWARDS A SECURITY OFFICER ON MAY 27, 1985.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #55

DATE FEB. 7, 1985

SUBURBAN DOWNS

NAME OF ASSOCIATION

HAWTHORNE RACE COURSE

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

( J

NAME MIRELLO MAZZULLA-DR. TR. OWNER

* *&

THE ABOVE IS HEREBY FINED THE SUM OF

App. 132

$200.00.

FOR IMPROPER CONDUCT TOWARDS THE RACING

SECRETARY ON FEB. 6, 1985.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #118

DATE JULY 6, 1985

QUAD CITY DOWNS, INC.

NAME OF ASSOCIATION

QUAD CITY DOWNS

NAME OF RACE TRACK

EAST MOLINE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C ]

NAME __MIRELLO MAZZULLA-DR. TR. OWNER

* * *

Terry Vincent is hereby fined the sum of

$100.00 for using improper language to an

official.

App. 133

Violation IRB Rule 20.1

STEWARDS RULING

NUMBER #118

DATE JULY 6, 1985

QUAD CITY DOWNS, INC.

NAME OF ASSOCIATION

QUAD CITY DOWNS

NAME OF RACE TRACK

EAST MOLINE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C ]

NAME MIRELLO MAZZULLA-DR. TR. OWNER

x * *

Terry Vincent is hereby fined the sum of

$100.00 for using improper language to an

official.

Violation IRB Rule 20.1

STEWARDS RULING

App. 134

NUMBER #25

DATE__ JANUARY 23, 1986

SUBURBAN DOWNS

NAME OF ASSOCIATION

HAWTHORNE RACE COURSE

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

( J

NAME HOMER HOCHSTEILER

x k*« &

HOMER HOCKSTEILER IS HEREBY ASSESSED A

CIVIL PENALTY OF $50.00 FOR IMPROPER

LANGUAGE TO AN OFFICIAL.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER #76

DATE__OCT. 2. 1986

CHICAGO DOWNS

App. 135

NAME OF ASSOCIATION

SPORTSMAN ’S PARK

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

NAME MICKEY RODRIGUEZ

x * &

TRAINER, MICKEY RODRIGUEZ IS HEREBY

ASSESSED A CIVIL PENALTY OF $250.00. FOR

IMPROPER CONDUCT TOWARDS A RACING OFFICIAL

IN THE PADDOCK AREA ON SEPT. 23, 1986.

VIOLATION I.R.B. RULE 20.1

STEWARDS RULING

NUMBER___87-30-49

DATE 1-30-87

OGDEN-FAIRMOUNT, INC.

NAME OF ASSOCIATION

App. 136

FAIRMOUNT PARK

NAME OF RACE TRACK

COLLINSVILLE, , LLLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C ]

NAME FRED FINN, JR.

kx kek &

Fred Finn, Jr., (dob 11-20-52) (SS No. 307-

60-8574)

is hereby assessed a civil penalty of

$100.00 for improper conduct towards an

official on January 22, 1987.

Illinois Racing Board 20.1

STEWARDS RULING

NUMBER__876214

DATE__ SEPTEMBER 24, 1987

QUAD CITY DOWNS, INC.

NAME OF ASSOCIATION

QUAD CITY DOWNS

NAME OF RACE TRACK

App. 137

EAST MOLINE , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

{ J

NAME BRIAN CARPENTER

x & &

Brian Carpenter is hereby suspended for a

period of fifteen (15) days (September 25,

1987 through October 9, 1987 inclusive) and

assessed a civil penalty of two hundred

fifty ($250.00) dollars for improper

conduct. Mr Carpenter used language and

displayed conduct that was

improper toward 4a racing official on

September 17, 1987.

During the period of this suspension, Brian

Carpenter is denied the privileges of the

grounds of all race tracks under the

jurisdiction of the Illinois Racing Board.

Violation IRB Rule 20.1

STEWARDS RULING

NUMBER__ #133

DATE__OCT. 13, 1987

ARLINGTON PARK

NAME OF ASSOCIATION

App. 138

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C J

NAME CATRINA HUNT

x * *

TRAINER, CATRINA HUNT IS HEREBY ASSESSED A

CIVIL PENALTY OF $50.00 FOR IMPROPER

CONDUCT TOWARDS A SECURITY GUARD.

VIOL. IRB RULE

STEWARDS RULING

NUMBER___ 876160

DATE__AUGUST 13, 1987

QUAD CITY DOWNS, INC.

NAME OF ASSOCIATION

QUAD CITY DOWNS

NAME OF RACE TRACK

EAST MOLINE , ILLINOIS

App. 139

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

. a

NAME DANA W. ANDERSON

* * ®

Dana Anderson is hereby assessed a civil

penalty of fifty ($50.00) dollars for using

improper language to a security guard on

August 10, 1987.

Violation IRB Rule 20.4

STEWARDS RULING

NUMBER__ #42

DATE FEB. 1, 1988

SUBURBAN DOWNS

NAME OF ASSOCIATION

HAWTHORNE RACE COURSE

NAME OF RACE TRACK

CICERO , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

C ]

App. 140

NAME STANLEY K. BANKS

= ® #@

STANLEY K. BANKS IS HEREBY ASSESSED A CIVIL

PENALTY OF $50.00 FOR IMPROPER CONDUCT

TOWARDS AN ILLINOIS RACING BOARD SECURITY

PERSON.

IRB RULE 20.1 ;

STEWARDS RULING

NUMBER__ #176

DATE__ JULY _30, 1988

ARLINGTON PARK, LTD.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

( ]

NAME BRUCE KRAUSE

BRUCE KRAUSE IS HEREBY ASSESSED A CIVIL

PENALTY OF $50.00. FOR IMPROPER LANGUAGE

TO AN OFFICIAL ON JULY 28, 1988.

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER__ #177

DATE JULY 30, 1988

ARLINGTON PARK, LTD.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

( J

NAME GREG L. HENDERSON

& & ®

GREG L. HENDERSON IS HEREBY ASSESSED A

CIVIL PENALTY OF $50.00. FOR IMPROPER

CONDUCT TOWARDS TRACK SECURITY PERSONNEL.

App. 142

+ cities

VIOL. IRB RULE 20.1

STEWARDS RULING

NUMBER_.-#187

DATE__AUG. 3, 1988

ASSOCIATION RACING ASSOC.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

( ]

NAME DARCY FLETCHER

*x* * *&

DARCY FLETCHER IS HEREBY ASSESSED A CIVIL

PENALTY OF $50.00. FOR IMPROPER CONDUCT

TOWARDS A STABLE GATE OFFICER ON JULY 29,

1988.

IRB RULE 20.1

STEWARDS RULING

App. 143

cma iia aaa ia

NUMBER__#184

DATE AUG. 3, 1988

ASSOCIATION RACING ASSOC.

NAME OF ASSOCIATION

MAYWOOD PARK

NAME OF RACE TRACK

MAYWOOD , ILLINOIS

LOCATION OF RACE TRACK

HARNESS [X] THOROUGHBRED

( ]

NAME MELISSA J. SEALE

x * &

MELISSA J. SEALE SCHEDULE TO APPEAR FOR A

STEWARDS INQUIRY REGARDING IMPROPER CONDUCT

TOWARDS SECURITY ON JULY 29, 1988, FAILED

TO APPEAR FOR SAID INQUIRY.

WHEREFORE, MELISSA J. SEALE IS HEREBY

ASSESSED A CIVIL PENALTY OF $50.00

VIOLS. IRB RULE 6.11 F - 20.1

App. 144

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN LeROY,

Plaintiff,

ILLINOIS RACING BOARD,

)

Vv. ) No. 89 C 3433

)

et at., )

)

Defendants.

MEMURANDUM OPINION AND ORDER

In April of 1989, plaintiff filed a

claim alleging constitutional violations by

the Illinois Racing Board ("IRB") and

against certain members and stewards of the

IRB in their official and _ personal

capacities. In this court’s opinion and

order of January 18, 1990, the plaintiff’s

initial complaint was dismissed without

prejudice for failure to state a claim, and

leave was granted to file an amended

App. 145

—————

complaint before February 9, 1990. Before

the court is defendant’s motion to dismiss

plaintiff's amended complaint.

STATEMENT OF FACTS

For the sake of simplicity, the court

adopts the statement of facts as set forth

in the courts memorandum opinion and order

of January 18, 1990.

DISCUSSION

As in plaintiff’s initial complaint,

his amended complaint alleges violations of

the fourth, fifth and fourteenth amendments

of the United States Constitution and 4

u.8.C § 1983. To withstand defendants’

motion to dismiss, plaintiff must have

corrected the problems underlying his first

effort; these were a failure to plead with

sufficient specificity, a failure to allege

App. 146

sical

substantive constitutional violations and

a failure to overcome defendants’ claims to

immunity. In considering the defendants’

motion to dismiss, the court accepts as

true all well-pleaded factual allegations

in the complaint, drawing all reasonable

inferences from them. Marmon Group, Inc.

v._Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.

1987).

Although the court granted the

plaintiff leave to file an amended

complaint and explained in fairly explicit

terms what factual allegations were needed

to survive a motion to dismiss, the amended

complaint adds little to the initial

pleading. Thus, three of plaintiff’s

claims, his substantive due process, equal

protection and free speech claims, may be

dismissed outright for a failure to state

App. 147

cri ii,

cognizable substantive violation of

plaintiff’s rights. Plaintiff’s claims

against the individual defendants may be

dismissed, because plaintiff has failed to

rebut their claims to a defense of

qualified immunity. Finally, some of

plaintiff's claims for relief against the

defendants in their official capacity, in

addition to the claims against the IRB, are

contrary to the dictates of the eleventh

amendment and must be dismissed on those

ground.

Due Process.

In his amended complaint plaintiff

reasserts his claim, dismissed by this

court in its opinion of January 18, 1990,

that the defendants violated his right to

due process. Rather than reframing the

arguments he made earlier, however,

App. 148

plaintiff has seen fit to merely

incorporate the claim as it was set forth

in his memorandum in opposition to the

defendants’ original motion to dismiss. In

his earlier memorandum, plaintiff

explicitly stated that his due process

claims were not of a procedural, but were

instead of a substantive nature.

Plaintiff’s Memorandum in Response to

Motion to Dismiss, p. 15. Plaintiff argued

that his occupational license is a property

interest subject to due process protection.

see Kurtzworth v. Illinois Racing Board, 92

Ill. App.3d 564, 588 (1981). He then

alleged that this property interest had

been denied in an “arbitrary, capricious

and unreasonable manner in violation of his

substantive right to due process.”

In Kauth v. Hartford Insurance Co. of

App. 149

Illinois, 852 F.2d 951, 957 (7th Cir.

1988), the seventh circuit enunciated the

principle that state-created property

rights are not protected by substantive due

process. To support a claim that

substantive due process rights have been

violated, a plaintiff must do more than

assert an unreasonable deprivation of a

state-created property interest; “without

alleging a violation of some other

substantive constitutional right or that

the available state remedies are

inadequate, the plaintiff has not stated a

substantive due process claim." Id. at

958; see also Polenz v. Parrott, 883 F.2d

551, 558 (7th Cir. 1989). Without

expressly addressing the issue in his

amended complaint, plaintiff appears to

rely on his assertion that the search of

App. 150

his truck was undertaken pursuant to an

unconstitutional IRB Rule to buttress his

claim that he has been deprived of the

property interest in his license in

violation of due process principles. he

would appear to be urging this court to

find the defendants’ treatment of him

pursuant to the scheme regulating licensed

harness racers to be “outrageous conduct"

in violation of the due process clause.

United States v. Miller, 891 F.2ad 1265,

1267 (7th Cir. 1989).

Plaintiff’s claim can be reduced,

however, to an assertion that his fourth

amendment rights were violated by the

search undertaken pursuant to the allegedly

unconstitutional rule and that he was

denied equal protection by the nature of

the punishment and fines imposed upon him.

App. 151

The seventh circuit has advised that

“(s]jubstantive due process, a judicial

invention, is least applicable when 4

provision of the Constitution directly

addresses the subject." United States Vv.

Marshall, 908 F.2d 1312, 1320 (7th Cir.

1990); cert granted Chapman _v- United

States, 1990 U.S. Lexis 6317. In light of

the applicability of the search and seizure

clause of the fourth amendment and the

equal protection clause of the fourteenth

amendment to plaintiff’s claims, the court

declines to apply the nebulous principles

of substantive due process. Therefore, the

court grants defendants’ motion to dismiss

plaintiff’s due process claim.

Equal Protection.

In plaintiff’s most substantive

amendment in light of this court’s

App. 152

dismissal of his original complaint,

plaintiff has attempted to elucidate his

claim that he was denied equal protection.

Attached to his amended complaint as Group

Exhibit G, plaintiff has included a

multitude of stewards’ rulings regarding

other horsemen who have violated the IRB

Rules. Plaintiff has demonstrated that

persons punished under the rules have been

treated differentially. He has not,

however, given this court sufficient detail

to establish on what basis--legitimate or

otherwise-such decisions were made. Equal

protection does not mandate that all people

charged with violating regulations be

treated identically. D’Acguisto v.

Washington, 640 F. Supp. 594, 625 (N.D.

Ill. 1986). To reach a constitutional

dimension, differential treatment must be

App. 153

based on invidious grounds such as race,

religion or other arbitrary

classifications. Vukadinovich v. Bartels,

853 F.2d 1387, 1391 (7th Cir. 1988).

Plaintiff has done no more than to state in

a conclusory fashion that his treatment was

invidious, leaving the court with no means

of assessing how this was so. The series

of stewards rulings demonstrating often

much lighter punishments and fines than

those imposed on plaintiff could quite

possibly be explained by such

constitutionally innocuous factual

differences as the fact that by the time of

the third ruling against plaintiff, he had

violated his suspension and the probation

imposed on him.

To the extent that plaintiff is

arguing that his suspension and probation

App. 154

were based on the search of his truck,

which was allegedly unconstitutional under

the fourth amendment, his argument lacks

the specificity required by this court in

order to properly assess his claim. The

stewards rulings provided by the plaintiff

as exhibits do not provide sufficient

detail to enable the court to determine

whether LeRoy, unlike the other harness

racers, was punished “for the exercise and

assertion of his constitutional rights."

Amended Complaint. p. 8.

First Amendment.

Because plaintiff has not rectified

the problems from his original complaint

regarding the claimed violations of his

first amendment rights, this court can do

little more than dispose of those claims as

it did in the opinion of January 18, 1990.

App. 155

LeRoy claims that the Rules of the IRB,

pursuant to which the defendants’ actions

were taken, are “unlawful overbroad,

arbitrary, capricious, unreasonable and/or

otherwise unconstitutional..."

As in his initial complaint, plaintiff

has given this court no factual basis upon

which to assess his claims that his right

to free expression was impinged. Plaintiff

contends that the stewards and officials of

the IRB unconstitutionally sought to

prohibit his right to free speech by

sanctioning him pursuant to IRB Rule 20.1,

which governs acceptable conduct and speech

in the presence of IRB officials. The only

factual details provided by the plaintiff

are contained in the wording of the

stewards rulings. The ruling of July 30,

1987 found that “Mr. LeRoy displayed

App. 156

improper conduct by using offensive and

profane language towards an Illinois Racing

Board official,” and the ruling of August

4, 1988 charged LeRoy with using

“threatening and profane language towards

the Association steward at Maywood Park."

Amended Complaint pp. 6-7.

As this court stated in its opinion of

January 18, 1990, to survive the

defendants’ motion to dismiss, plaintiff

“must have adequately alleged statements

which, among other things, ‘tough upon a

matter oof public concern’ and _ thus

implicate the first amendment." Landstrom

v. Illinois Department of Children & Family

Services, 892 F.2d 670, 678-79 (7th Cir.

1990). If plaintiff registered a purely

personal complaint as to the disciplinary

actions taken against him, the tenets of

App. 157

the first amendment may not be at issue.

Such a situation is analogous to the one

faced by the Supreme Court in Connick v.

Meyers, 461 U.S. 138, 147 (1983), in which

the court stated that “absent the most

unusual circumstances, a federal court is

not the appropriate forum in which to

review the wisdom of a personnel decision

taken by a public agency allegedly in

reaction to the employee’s behavior."

Whether first amendment concerns were

implicated in the disciplinary action taken

against plaintiff is dependent upon the

“content, form, and context" of the speech,

none of which has been provided to the

court. Phares v. Gustafsson, 856 F.2d

1003, 1007 (7th Cir. 1988).

Overbreadth and vagueness.

In addition to framing a general first

App. 158

amendment challenge to his treatment

pursuant to IRB Rule 20.1, plaintiff has

challenged the rule on the grounds of

overbreadth and vagueness.’ In Village of

Hoffman Estates _v. Flipside, Hoffman

Estates, 455 U.S. 489, 494 (1982), the

Supreme Court articulated an approach to

challenges of this nature:

In a facial challenge to’ the

overbreadth and vagueness of a law, a

court’s first task is to determine

whether the enactment reaches a

substantial amount of constitutionally

protected conduct. If it does not,

then the overbreadth challenge must

fail. The court should then examine

the facial vagueness challenge and,

1 IRB 20.1 reads:

No owner, trainer, driver, attendant of a

horse, or any other person shall use

improper language to an official, or be

guilty of any improper conduct toward such

officers or judges or persons serving under

their orders, such improper language or

conduct having reference to the

administration of the course or of any race

thereon.

App. 159

assuming the enactment implicates no

constitutionally protected conduct,

should uphold the challenge only if

the enactment is impermissibly vague

in all of its applications.

(footnotes omitted).

The doctrine of overbreadth is aimed

at statutes and other regulations which are

so broad as to deter protected activity

which falls at the margin of the proscribed

activity. Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973). This having been said,

however, “a law should not be voided on its

face unless its deterrence of protected

activities is substantial.” Tribe,

American Constitutional Law, § 12-28

(1988). Substantial overbreadth must be

judged “in relation to the statute’s

plainly legitimate sweep."° Broadrick, 413

U.S. at 615; Brockett v. Spokane Arcades,

Inc., 472 U.S. 491, 503, n.12 (1985).

App. 160

Plaintiff has given this court no

basis upon which to assess what conduct and

speech is generally construed to fall

within the terms of Rule 20.1. No evidence

has been proffered as to the actual reach

of the statute, or its potential

unconstitutional application to other, an

argument sanctioned by the overbreadth

doctrine. Massachusetts v. Oakes, 109

S.Ct. 2633, 2637 (1989). Thus it is not

clear that Rule 20.1 deters

constitutionally protected behavior.

While the rule proscribes “improper

conduct" and “improper language,“ it is

limited to a discreet group of individuals,

harness racers, and, in addition, it is

limited to language and conduct referring

to the administration of the course or a

App. 161

race.* Clearly the rule is intended to

prevent intimidation of officials or

informal challenges to their decisions by

interested parties.

Moreover, to the extent that a party

believes that his license has been unfairly

suspended or revoked due to an alleged

violation of Rule 20.1, he may request a

hearing in front of the IRB within five

days of receiving notice of the suspension

of his license. I1ll.Rev.Stat. ch. 8, 4 37-

16 (c). The Board, in turn, must hold the

hearing within seven days of receiving the

request. Id.

In a situation such as this, where

: The Eastern District of

Pennsylvania rejected an overbreadth

challenge to a similarly worded harness

racing rule in Fox v. Philadelphia Turf

Club, Inc., 1987 U.S. Dist. Lexis 8850

(E.D. Pa).

App. 162

plaintiff’s allegations necessarily require

the court to consider the unconstitutional

application of the statute to others the

Supreme Court has called the use of the

overbreadth doctrine “manifestly, strong

medicine." Broadrick, 413 U.S. at 613.

The Court has cautioned that a statute or

rule such as 20.1, if shown to have an

exceedingly broad scope, should be

sustained if possible with proper limiting

instructions, rather than struck down out

of hand. Frisby v. Schultz, 487 U.S. 474,

483 (1988); Broadrick, 413 U.S. at 613.

Based on the complaint of plaintiff, this

court can neither determine whether members

of the IRB or other IRB officials have

imposed a limiting construction on Rule

20.1, nor whether such a construction would

be possible in light of any alleged

App. 163

excesses by those implementing the rule.

Because the plaintiff has failed to plead

a valid overbreadth claim, the court grants

the defendants’ dismissal.

Looking next to plaintiff’s vagueness

challenge, the court cannot analyze this

claim without reference to the conduct

which has brought the plaintiff within the

ambit of the allegedly unconstitutional

rule. Mustfov v. Rice, 663 F. Supp. 1255,

1270 (N.D. Ill. 1987). Unlike a challenge

to a statute based on overbreadth, a

vagueness challenge must fail if the

statute or rule at issue was sufficiently

clear as applied to the plaintiff. Village

of Hoffman Estates, 455 U.S. at 500. The

court, therefore, dismisses the plaintiff’s

claim that Rule 20.1 was void for

vagueness.

App. 164

Qualified Immunity.

Unlike plaintiff’s substantive due

process, equal protection and free speech

claims which lacked substantive merit, the

remaining claims have been sufficiently

articulated but must overcome the doctrinal

hurdles with which a plaintiff is faced

when suing state officials and government

bodies. Plaintiff has sued the members of

the IRB and the stewards in both their

individual and their official capacities.

“Personal-capacity suits seek to impose

personal liability upon a government

official for actions he takes under color

of state law.” Kentucky v. Graham, 473

U.S. 159, 165 (1985). To sustain a suit

against the defendants in their individual

capacities, however, plaintiff must

overcome the asserted defense of qualified

App. 165

immunity.

The test for when state officers may

raise the defense of qualified immunity has

undergone repeated refinement by the

Supreme Court. In 1982, the Court rid the

concept of its subjective elements and

articulated its present form. The test, as

it was formulated in Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982), states that

“government officials performing

discretionary functions, are generally

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory or

constitutional rights of which a reasonable

person would have known.” In other words,

public officials will be held liable for

damages “only if the specific right they

violated was clearly established at the

App. 166

time they violated it." K.H. Through

Murphy _v. Morgan 914 F.2d 846, 850 (7th

Cir. 1990), citing Harlow, 457 U.S. 800;

see also Rakovich v. Wade, 850 F.2d 1180,

1205 (7th Cir. 1988), cert denied, 488 U.S.

968 (1988).

The issue of just how. clearly

established these constitutional or

Statutory rights must be has been the

subject of many opinions in the federal

courts. The importance of the issue to the

defense of qualified immunity was explained

in Harlow, “[i]Jf the law at the time was

not clearly established, an official could

not reasonably be expected to anticipate

subsequent legal developments, nor could he

fairly be said to ‘know’ that the law

forbade conduct not previously identified

as unlawful." Id. at 818. The Supreme

App. 167

Court attempted to clarify the idea in

Anderson v. Creighton:

The contours of the right must be

sufficiently clear that a reasonable

official would understand that what he

is doing violates the right. This is

not to say that an official action is

protected by qualified immunity unless

the previous action has been held

unlawful, but it is to say that in the

light of the preexisting law the

unlawfulness must be apparent.

438 U.S. 634, 640 (1987) (citations

omitted).

The seventh circuit has also addressed

the issue of what constitutes the necessary

clarity to provide an official with notice

that his actions violate the rights of the

plaintiff. According to the seventh

circuit, the “test for immunity should be

whether the law was clear in relation to

the specific facts confronting the official

when he acted." Colaizzi v. Walker, 812

F.2d 304, 308 (7th Cir. 1987). The exact

App. 168

issue need not have been addressed.

Instead, “what is required is a ‘sufficient

consensus,’ based on all relevant case law,

‘indicating that the official’s conduct was

unlawful. ’" Landstrom, 892 F.2d at 676,

quoting Cleveland-Perdue v. Brutsche, 881

F.2d 427, 431 (7th Cir. 1989), cert denied,

111 S.Ct. 368 (1990).

In its opinion of January 18, 1990,

the court dismissed LeRoy’s fourth

amendment claim. The court looked to the

disparity between the allegations in the

plaintiff’s complaint that his consent to

a search of his truck was statutorily given

and the IRB Order of June 6, 1987 which

implied that LeRoy’s consent was verbally

given in response to a request by members

of the State Department of Law Enforcement.

As the court stated at that time, a written

App. 169

instrument attached to the pleadings will

control in the event of a disparity with

the allegations in the pleadings. Ss ¢.

Wright & A. Miller, Federal Practice and

Procedure § 1327, at 492-93 (1969).

In his amended complaint, however,

plaintiff frames with a bit more clarity

his argument that his consent was

effectively vitiated by the fact that

plaintiff was required to consent to the

search to maintain his license pursuant to

IRB Rule 25.19, an allegedly

unconstitutional rule. The plaintiff

argues that the search was nonconsensual

and warrantless and, under the

circumstances, unconstitutional.

In light of the defendants’ qualified

immunity defense, this court must determine

whether at the time the defendants excluded

App. 170

LeRoy from the racetrack on the basis of

the search undertaken pursuant to IRB Rule

25.19, which rule required consent as a

condition of employment, such a search was

clearly violative of the plaintiff’s rights

under the fourth amendment. Rackovich, 850

F.2d at 1209. "Once the defendant’s

actions are defined and characterized

according to the specific facts of the

case, this characterization is compared to

the body of law existing at the time of the

alleged violation to determine if

constitutional, statutory, or case law

shows that the now specifically defined

actions violated the clearly established

law." Id. Therefore, the relevant inquiry

is whether at the time plaintiff was

searched, in 1987, such an action was

clearly unconstitutional.

App. 171

In July of 1985, the northern district

of Illinois examined the constitutionality

of warrantless searches pursuant to Rule

25.19. Serpas v. Schmidt, 621 F. Supp. 734

(N.D. Ill. 1985). The plaintiffs in

Serpas, challenged the authority of members

of the IRB to conduct warrantless searches

of the plaintiffs’ residential quarters at

the racetrack as well as warrantless

searches of the plaintiffs’ persons within

the racetrack enclosure. The court weighed

the regulated nature of the industry

against the privacy interests of the

plaintiffs. Noting that “physical entry of

the home is the chief evil against which

the wording of the Fourth Amendment is

directed," the court held the relevant

application of Rule 25.19 unconstitutional.

In December 1986, the seventh circuit

App. 172

upheld the finding that Rule 25.19 was

unconstitutional as applied to dormitory

and personal searches. 808 F.2d 601 (7th

Cir. 1986), aff'd, rehearing en banc 827

F.2d 23 (7th Cir. 1987).

That same month, December of 1986, the

issue of warrantless searches undertaken

pursuant to Rule 25.19 came before the

Illinois courts in People v. Strauss, 502

N.E.2d 1287 (Il1l.App. 1 Dist. 1986). In

that opinion, the appellate court rejected

the finding of the circuit court that

Harness Rule 25.19 and Thoroughbred Rule

322, which are set forth in identical

language, were unconstitutional as applied

to a pat-down search of a jockey. In

upholding the constitutionality of a pat-

down search undertaken after irregular

betting patterns were detected, the court

App. 173

explicitly rejected the holding of the

northern district of Illinois in Serpas.

The court in Strauss held that warrantless

searches pursuant to Rule 322 are

constitutionally permissible under the

administrative search exception to the

fourth amendment.

Thus in April of 1987, when

plaintiff’s truck was searched, the

messages from the courts regarding Rule

25.19 were mixed. The northern district of

Illinois and the seventh circuit had found

Rule 25.19 to be unconstitutional as

applied in Serpas, whereas the Illinois

appellate court had found the application

of Rule 25.19 in Strauss to be

constitutional. Significantly, Serpas and

Strauss, involved warrantless searches of

the persons and residences of the

App. 174

plaintiffs, which are generally entitled to

heightened expectations of privacy. The

guidance provided by those cases to a non-

consensual search of a truck was,

therefore, diminished and could not be said

to present a consensus sufficient to alert

the defendants to the fact that their

actions were unconstitutional. Thus, the

individual defendants are entitled to the

defense of qualified immunity and are

dismissed from the claim alleging an

unconstitutional search pursuant to Rule

5.39.

Because the individual defendants are

dismissed from the 4th amendment count on

the grounds of qualified immunity, they are

also dismissed from the suit to the extent

that plaintiff seeks to hold them liable

for sanctions imposed on him pursuant to

App. 175

Rules 20.1 and 22.3 which arose as a result

of his prior violation of the allegedly

unconstitutional Rule 25.19.

llth Amendment.

The defendants move to dismiss the

claims brought against them in their

official capacity as well as those brought

against the IRB on the grounds that such

claims are barred by’ the eleventh

amendment. Under the eleventh amendment,

a suit may not be brought against a state

in federal court, absent an unequivocal

expression of consent by the state or 4

clear abrogation of that immunity by

Congress “pursuant to a valid exercise of

power." Green v. Mansour, 474 U.S. 64, 68

(1985).

The IRB is a department of state

government, the officials of which,

App. 176

including members of the Board and stewards

are responsible for regulating the horse

racing industry in Illinois. I11].Rev.Stat.

1983, ch.8, par. 37-1 et seq. The IRB is

therefore dismissed from the suit on

eleventh amendment grounds.

Sovereign immunity pursuant to the

eleventh amendment also arises in suits

against government employees in their

official capacities. Official capacity

suits “’generally represent only another

way of pleading an action against an entity

of which an officer is an agent.’"

Graham,, 473 U.S. at 165, citing Monell v.

New York City Dept. of Social Services, 436

U.S.658, 690 (1978). Plaintiff’s claims

against the defendants in their official

capacities, therefore, implicate the

eleventh amendment. Specifically, the

App. 177

eleventh amendment bars a suit for money

damages against state officials, because

such a claim is an attempt by a private

party "to impose 4 liability which must be

paid from public funds in the _ state

treasury." Edelman v. Jordan 415 U.S. 651,

663 (1974); see also Cannon V. University

Health Services, 710 F.2d 351, 356-57 (7th

Cir. 1983). Thus, the eleventh amendment

bars plaintiff’s request for monetary

relief against the defendants in their

official capacities.

Plaintiff argues that he may seek

money damages from the defendants on the

theory that their acts violated the

Constitution, thus stripping them of their

official character. This claim is without

merit. See, e.g., Ex Parte Young, 209 u.8.

123 (1908); Green v. Mansour, 474 U.S. at

App. 178

68. The court has already dismissed the

claims against the defendants in their

individual capacities, based on plaintiff's

failure to allege valid claims and

alternatively on the qualified immunity

defense available to them. Suites for

injunctive relief are not barred by the

eleventh amendment, because "“official-

capacity actions for prospective relief are

not treated as actions against the State."

Will v. Michigan Dept. of State Police, 109

S.Ct. 2304, 2311, n.10 (1989). Insofar as

plaintiff seeks injunctive relief against

the defendants in their official

Capacities, defendants’ motion to dismiss

is denied.

Rule 11 Sanctions.

Defendants ask this court to impose

Rule 11 sanctions on the plaintiff.

App. 179

Sanctions must be imposed if any one of the

three prongs of Rule 11 has been violated.

Beeman v. Fiester, 852 F.2d 206, 209 (7th

Cir. 1988). The first element under Rule

11 is the certification by the signer of

the pleading or motion that pleading or

motion was not filed for an improper

purpose such as harassment. The second and

third elements are an assertion by the

signer that he or she has read the pleading

or motion and believes it to be well

grounded in fact and “warranted by existing

law or a good faith argument for the

extension, modification, or reversal of

existing law." Fed.R.Civ.P. 11.

Defendants make no allegations of

improper purpose. As to the third prong,

this court does not doubt the good faith

belief of the plaintiff’s attorney as to

App. 180

the viability of the legal premises of the

action. Presumably the defendants seek, to

challenge the inquiry of the plaintiff's

attorney into the factual underpinnings of

the complaint. There is no indication,

however, that the attorney has made an

inadequate investigation. As the Seventh

Circuit stated in Beeman v. Fiester,

“{ujnder the notice pleading system adopted

by the Federal Rules of Civil Procedure,

the plaintiff and his counsel are not

required to know all the facts before they

file a complaint; it is the purpose of

discovery to fill in the details." 852

F.2d at 210-211. Plaintiff’s attorney

appears to have repeatedly misunderstood

the extent to which discovery can be relied

in to fill in the details of the claim. If

insufficient facts are alleged, then the

App. 181

court will be forced, as in this case, to

dismiss the suit for failure to state a

claim. Such a misunderstanding, however,

does not rise to the level of a Rule 11

violation. Therefore, defendants’ request

for Rule 11 sanctions is denied.

CONCLUSION

According to the foregoing analysis,

plaintiff’s claim that he was subjected to

violations of his rights to due process,

equal protection and freedom of expression,

as well as his claims that he was

sanctioned pursuant to vague and overbroad

rules, are dismissed as to all of the

defendants on the grounds that plaintiff

has failed in each case to state a claim

upon which relief may be granted. The

individual defendants are dismissed from

the remaining claim, which is based on the

App. 182

fourth amendment, on the grounds that they

are qualifiedly immune. The IRB is

dismissed from the action on the grounds of

sovereign immunity pursuant to the eleventh

amendment. All claims for monetary relief

against the defendants in their official

capacities are also dismissed on eleventh

amendment grounds.

Plaintiff has already been afforded

the opportunity to amend his complaint.

Plaintiff’s amended complaint presented

this court with an almost exact replication

of his earlier effort. Therefore, the

plaintiff's case is dismissed with

prejudice.

Pursuant to the discussion above,

defendants’ request for the imposition of

Rule 11 sanctions is denied.

ENTER:

App. 183

JOHN A. NORDBERG

United States District Judge

DATED: December 20, 1990

MINUTE ORDER

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS - EASTERN DIVISION

JUDGE: JOHN A. NORDBERG

CASE NUMBER: 89 C 3433

DATE: DECEMBER 20, 1990

[X] JUDGMENT IS ENTERED AS FOLLOWS:

Enter memorandum opinion and order

dismissing the plaintiff’s case with

prejudice. Defendants’ request for the

imposition of Rule 11 sanctions is

denied.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN LEROY JUDGMENT IN A

CIVIL CASE

App. 184

ILLINOIS RACING BOARD ET AL.

CASE NUMBER 89 C 3433

{] JURY VERDICT. THIS ACTION CAME BEFORE

THE COURT FOR A TRIAL BY JURY. THE ISSUES

HAVE BEEN TRIED AND THE JURY HAS RENDERED

ITS VERDICT.

{X] DECISION BY COURT. THIS ACTION CAME TO

HEARING BEFORE THE COURT. THE ISSUES HAVE

BEEN HEARD AND A DECISION HAS’ BEEN

RENDERED.

IT IS ORDERED AND ADJUDGED THAT PLAINTIFF’S

CASE IS DISMISSED WITH PREJUDICE.

DEFENDANTS’ REQUEST FOR THE IMPOSITION OF

RULE 11 SANCTIONS IS DENIED.

THIS IS A FINAL JUDGMENT IN FAVOR OF THE

DEFENDANTS AND AGAINST THE PLAINTIFF.

DECEMBER 20, 1990

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JUNE 9, 1992

BEFORE

App. 185

HON. JOHN L. COFFEY, CIRCUIT JUDGE

HON. JOEL M. FLAUM, CIRCUIT JUDGE

HON. JESSEE E. ESCHBACK, SENIOR

CIRUCIT JUDGE

ORDER

The panel, on it own motion, orders

that this case is remanded to the district

court for the limited purpose of allowing

Judge Nordberg to clarify whether he

intended to dismiss the plaintiff’s entire

case, including the claim for injunctive

relief against the defendants in their

official capacity, or, if not, whether he

believes that the remaining claims are

presently appeable under the dictates of

Federal Rule of Civil Procedure 54(b).

App. 186

After the district court has clarified its

position the case is to be returned to the

panel

MINUTE ORDER

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

JUDGE : JOHN A. NORDBERG

CASE NUMBER: 89 C 3433

DATE: JUNE 29, 1992

CASE TITLE: STEVEN LEROY V. ILLINOIS

RACING BOARD ET AL.

[X] [OTHER DOCKET ENTRY]

As requested by the United States

Court of Appeals, this Court’s Memorandum

opinion and order of December 20, 1990 is

amended.

ORDER

As requested by the United States Court of

App. 187

Appeals for the Seventh Circuit in its

Order of June 9, 1992, this Court clarifies

its Memorandum Opinion and Order of

December 20, 1990. In its memorandum

opinion and order of December 20, 1990,

this Court dismissed all of the claims

against all of the defendants with

prejudice -- except the claim for

injunctive relief brought against the

defendants in their official capacities.

To that end, the December 20, 1990

defendants in their official capacities.

To that end, the December 20, 1990

Memorandum Opinion and Order is hereby

amended by adding as a final paragraph:

The Court has not directed entry of a

final judgment of the dismissed claims

under Rule 54(b) of the Federal Rules of

Civil Procedure and has not determined that

App. 188

there is no just reason for delay. The

plaintiff’s claim for injunctive relief

against the defendants in their official

capacities remains for adjudication.

App. 189

N ITE TATES DISTRICT CO

FO N TRI I

EASTERN DIVISION

STEVEN LEROY

Plaintiff,

Vv. No. 89 C 3433

ILLINOIS RACING

BOARD et al.,

Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

In April of 1989, plaintiff filed a

claim alleging constitutional violations by

the Illinois Racing Board (“IRB”) and

against certain members and stewards of the

IRB in their official and personal

capacities. In this court’s opinion and

order of January 18, 1990, the plaintiff’s

initial. complaint was dismissed without

prejudice for failure to state a claim, and

App. 190

leave was granted to file an amended

complaint before February 9, 1990. Before

the court is defendant’s motion to dismiss

plaintiff’s amended complaint.

STATEMENT OF FACTS

For tne sake of simplicity, the court

adopts the statement of facts as set forth

in the courts memorandum Opinion and order

of January 18, 1990.

DISCUSSION

As in plaintiff’s initial complaint,

his amended complaint alleges violations of

the fourth, fifth and fourteenth amendments

of the United States Constitution and 4

U.S.C § 1983. To withstand defendants’

motion to dismiss, plaintiff must have

corrected the problems under.ying his first

effort; these were a failure to plead with

sufficient specificity, a failure to allege

App. 191

substantive constitutional violations and

a failure to overcome defendants’ claims to

immunity. In considering the defendants’

motion to «dismiss, the court accepts as

true all well-pleaded factual allegations

in the complaint, drawing all reasonable

inferences from them. Marmon Group, Inc.

v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.

1987).

Although the court granted the

plaintiff leave to file an amended

complaint and explained in fairly explicit

terms what factual allegations were needed

to survive a motion to dismiss, the amended

complaint adds little to the initial

pleading. Thus, three of plaintiff’s

claims, his substantive due process, equal

protection and free speech claims, may be

dismissed outright for a failure to state

App. 192

cognizable substantive violation of

plaintiff's rights. Plaintiff’s claims

against the individual defendants may be

dismissed, because plaintiff has failed to

rebut their claims to a defense of

qualified immunity. Finally, some of

plaintiff’s claims for relief against the

defendants in their official capacity, in

addition to the claims against the IRB, are

contrary to the dictates of the eleventh

amendment and must be dismissed on those

grounds.

Due Process.

In his amended complaint plaintiff

reasserts his claim, dismissed by this

court in its opinion of January 18, 1990,

that the defendants violated his right to

due process. Rather than reframing the

arguments he made earlier, however,

App. 193

plaintiff has seen fit to merely

incorporate the claim as it was set forth

in his memorandum in opposition to the

defendants’ original motion to dismiss. In

his earlier memorandum, plaintiff

explicitly stated that his due process

claims were not of a procedural, but were

instead of a substantive nature.

Plaintiff’s Memorandum in Response to

Motion to Dismiss, p. 15. Plaintiff argued

that his occupational license is a property

interest subject to due process protection.

See Kurtzworth v. Illinois Racing Board, 92

Ill. App.3d 564, 588 (1981). He then

alleged that this property interest had

been denied in an “arbitrary, capricious

and unreasonable manner in violation of his

substantive right to due process.°

In Kauth v. Hartford Insurance Co. of

App. 194

Illinois, 852 F.2d 951, 957 (7th Cir.

1988), the seventh circuit enunciated the

principle that state-created property

rights are not protected by substantive due

process. To support a claim that

substantive due process rights have been

violated, a plaintiff must do more than

assert an unreasonable deprivation of a

state-created property interest; “without

alleging a violation of some. other

substantive constitutional right or that

the available state remedies are

inadequate, the plaintiff has not stated a

substantive due process claim." Id. at

958; see also Polenz v. Parrott, 883 F.2d

551, 558 (7th Cir. 1989). Without

expressly addressing the issue in his

amended complaint, plaintiff appears to

rely on his assertion that the search of

App. 195

his truck was undertaken pursuant to an

unconstitutional IRB Rule to buttress his

claim that he has been deprived of the

property interest in his license in

violation of due process principles. he

would appear to be urging this court to

find the defendants’ treatment of him

pursuant to the scheme regulating licensed

harness racers to be “outrageous conduct"

in violation of the due process clause.

United States v. Miller, 891 F.2d 1265,

1267 (7th Cir. 1989).

Plaintiff’s claim can be _ reduced,

however, to an assertion that his fourth

amendment rights were violated by the

search undertaken pursuant to the allegedly

unconstitutional rule and that he was

denied equal protection by the nature of

the punishment and fines imposed upon him.

App. 196

The seventh circuit has advised that

"{Sjubstantive due process, a judicial

invention, is least applicable when a

provision of the Constitution directly

addresses the subject.” United States v.

Marshall, 908 F.2d 1312, 1320 (7th Cir.

1990); cert granted Chapman v. united

States, 1990 U.S. Lexis 6317. In light of

the applicability of the search and seizure

clause of the fourth amendment and the

equal protection clause of the fourteenth

amendment to plaintiff’s claims, the court

declines to apply the nebulous principles

of substantive due process. Therefore, the

court grants defendants’ motion to dismiss

plaintiff’s due process claim.

Equal Protection.

In plaintiff’s most substantive

amendment in light of this court’s

App. 197

dismissal of his original complaint,

plaintiff has attempted to elucidate his

claim that he was denied equal protection.

Attached to his amended complaint as Group

Exhibit G, plaintiff has included a

multitude of stewards’ rulings regarding

other horsemen who have violated the IRB

Rules. Plaintiff has demonstrated tiéc

persons punished under the rules have been

treated differentially. He has not,

however, given this court sufficient detail

to establish on what basis--legitimate or

otherwise-such decisions were made. Equal

protection does not mandate that all people

charged with violating regulations be

treated identically. D‘Acgquisto _v.

Washington, 640 F. Supp. 594, 625 (N.D.

Ill. 1986). To reach a constitutional

dimension, differential treatment must be

App. 198

based on invidious grounds such as race,

religion or other arbitrary

Classifications. Vukadinovich v. Bartels,

853 F.2d 1387, 1391 (7th Cir. 1988).

Plaintiff has done no more than to state in

a conclusory fashion that his treatment was

invidious, leaving the court with no means

of assessing how this was so. The series

of stewards rulings demonstrating often

much lighter punishments and fines than

those imposed on plaintiff could quite

possibly be explained by such

constitutionally innocuous factual

differences as the fact that by the time of

the third ruling against plaintiff, he had

violated his suspension and the probation

imposed on him.

To the extent that plaintiff is

arguing that his suspension and probation

App. 199

were based on the search of his truck,

which was allegedly unconstitutional under

the fourth amendment, his argument lacks

the specificity required by this court in

order to properly assess his claim. The

stewards rulings provided by the plaintiff

as exhibits do not provide sufficient

detail to enable the court to determine

whether LeRoy, unlike the other harness

racers, was punished “for the exercise and

assertion of his constitutional rights."

Amended Complaint. p. 8.

First Amendment.

Because plaintiff has not rectified

the problems from his original complaint

regarding the claimed violations of his

first amendment rights, this court can do

little more than dispose of those claims as

it did in the opinion of January 18, 1990.

App. 200

LeRoy claims that the Rules of the IRB,

pursuant to which the defendants’ actions

were taken, are “unlawful overbroad,

arbitrary, capricious, unreasonable and/or

otherwise unconstitutional..."

As in his initial complaint, plaintiff

has given this court no factual basis upon

which to assess his claims that his right

to free expression was impinged. Plaintiff

contends that the stewards and officials of

the IRB unconstitutionally sought’ to

prohibit his right to free speech by

sanctioning him pursuant to IRB Rule 20.1,

which governs acceptable conduct and speech

in the presence of IRB officials. The only

factual details provided by the plaintiff

are contained in the wording of the

stewards rulings. The ruling of July 30,

1987 found that “Mr. LeRoy displayed

App. 201

improper conduct by using offensive and

profane language towards an Illinois Racing

Board official,” and the ruling of August

4, 1988 charged LeRoy with using

“threatening and profane language towards

the Association steward at Maywood Park."

Amended Complaint pp. 6-7.

As this court stated in its opinion of

January 18, 1990, to survive the

defendants’ motion to dismiss, plaintiff

“must have adequately alleged statements

which, among other things, ‘tough upon a

matter of public concern’ and _ thus

implicate the first amendment." Landstrom

v. Illinois Department of Children & Family

Services, 892 F.2d 670, 678-79 (7th Cir.

1990). If plaintiff registered a purely

personal complaint as to the disciplinary

actions taken against him, the tenets of

App. 202

the first amendment may not be at issue.

Such a situation is analogous to the one

faced by the Supreme Court in Connick v.

Meyers, 461 U.S. 138, 147 (1983), in which

the court stated that “absent the most

unusual circumstances, a federal court is

not the appropriate forum in which to

review the wisdom of a personnel decision

taken by a public agency allegedly in

reaction to the employee’s behavior."

Whether first amendment concerns were

implicated in the disciplinary action taken

against plaintiff is dependent upon the

“content, form, and context" of the speech,

none of which has been provided to the

court. Phares _v. Gustafsson, 856 F.2d

1003, 1007 (7th Cir. 1988).

Overbreadth and vagueness.

In addition to framing a general first

App. 203

amendment challenge to his treatment

pursuant to IRB Rule 20.1, plaintiff has

challenged the rule on the grounds of

overbreadth and vagueness.’ In Village of

Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489, 494 (1982), the

Supreme Court articulated an approach to

challenges of this nature:

In a facial challenge to’ the

overbreadth and vagueness of a law, a

court’s first task is to determine

whether the enactment reaches a

substantial amount of constitutionally

protected conduct. If it does not,

then the overbreadth challenge must

1 IRB 20.1 reads:

No owner, trainer, driver,

attendant of a horse, or any

other person shall use improper

language to an official, or be

guilty of any improper conduct

toward such officers or judges or

persons serving under their

orders, such improper language or

conduct having reference to the

administration of the course or

of any race thereon.

App. 204

fail. The court should then examine

the facial vagueness challenge and,

assuming the enactment implicates no

constitutionally protected conduct,

should uphold the challenge only if

the enactment is impermissibly vague

in all of its applications.

(footnotes omitted).

The doctrine of overbreadth is aimed

at statutes and other regulations which are

so broad as to deter protected activity

which falls at the margin of the proscribed

activity. Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973). This having been said,

however, “a law should not be voided on its

face unless its deterrence of protected

activities is substantial.” Tribe,

American Constitutional Law, § 12-28

(1988). Substantial overbreadth must be

judged "in relation to the statute’s

plainly legitimate sweep.” Broadrick, 413

U.S. at 615; Brockett v. Spokane Arcades,

App. 205

Inc., 472 U.S. 491, 503, n.12 (1985).

Plaintiff has given this court no

basis upon which to assess what conduct and

speech is generally construed to fall

within the terms of Rule 20.1. No evidence

has been proffered as to the actual reach

of the statute, or its potential

unconstitutional application to other, an

argument sanctioned by the overbreadth

doctrine. Massachusetts v. Oakes, 109

$.Ct. 2633, 2637 (1989). Thus it is not

clear that Rule 20.1 deters

constitutionally protected behavior.

While the rule proscribes “improper

conduct" and “improper language," it is

limited to a discreet group of individuals,

harness racers, and, in addition, it is

limited to language and conduct referring

to the administration of the course or 4a

App. 206

race.* Clearly the rule is intended to

prevent intimidation of officials or

informal challenges to their decisions by

interested parties.

Moreover, to the extent that a party

believes that his license has been unfairly

Suspended or revoked due to an alleged

violation of Rule 20.1, he may request a

hearing in front of the IRB within five

days of receiving notice of the suspension

of his license. I1l.Rev.Stat. ch. 8, | 37-

16 (c). The Board, in turn, must hold the

hearing within seven days of receiving the

request. Id.

In a situation such as this, where

. The Eastern District of

Pennsylvania rejected an overbreadth

challenge to a similarly worded harness

racing rule in Fox v. Philadelphia Turf

Club, Inc., 1987 U.S. Dist. Lexis 8850

(E.D. Pa).

App. 207

plaintiff’s allegations necessarily require

the court to consider the unconstitutional

application of the statute to others the

Supreme Court has called the use of the

overbreadth doctrine “manifestly, strong

medicine." Broadrick, 413 U.S. at 613.

The Court has cautioned that a statute or

rule such as 20.1, if shown to have an

exceedingly broad scope, should be

sustained if possible with proper limiting

instructions, rather than struck down out

of hand. Frisby v. Schultz, 487 U.S. 474,

483 (1988); Broadrick, 413 U.S. at 613.

Based on the complaint of plaintiff, this

court can neither determine whether members

of the IRB or other IRB officials have

imposed a limiting construction on Rule

20.1, nor whether such a construction would

be possible in light of any alleged

App. 208

excesses by those implementing the rule.

Because the plaintiff has failed to plead

a valid overbreadth claim, the court grants

the defendants’ dismissal.

Looking next to plaintiff’s vagueness

challenge, the court cannot analyze this

claim without reference to the conduct

which has brought the plaintiff within the

ambit of the allegedly unconstitutional

rule. Mustfov v. Rice, 663 F. Supp. 1255,

1270 (N.D. Ill. 1987). Unlike a challenge

to a statute based on overbreadth, a

vaguene

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