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Van Ert v. Blank

United States District Court, W.D. Wisconsin

January 26, 2018

ROBIN VAN ERT, Plaintiff,
REBECCA BLANK et al., Defendants.



         In 2014, Robin Van Ert ended a romantic relationship with Bo Ryan, then the head coach of the Wisconsin Badgers men's basketball team at the University of Wisconsin-Madison (UW). In February 2015, Van Ert emailed UW Chancellor Rebecca Blank and several athletic department officials expressing concerns about Ryan. Among other things, Van Ert wrote that Ryan is “manipulative, ” “a liar, ” a “cheater, ” and “deceptive” and that he “should not be coaching and mentoring or be a role model to the young men on the basketball team.” See Docket No. 9-1, at 1.

         Van Ert alleges that, in the months that followed, defendants, all UW officials, conducted a “sham” investigation of her complaint against Ryan and then released her email and name to the media, which led to threats, harassment, and ridicule. Van Ert brings this action under 42 U.S.C. § 1983 alleging federal constitutional deprivations under the First and Fourteenth Amendments. She also brings supplemental state-law claims for invasion of privacy, negligence, defamation, and conspiracy. Defendants move to dismiss Van Ert's complaint under Federal Rule of Civil Procedure 12(b)(6).

         “A motion to dismiss pursuant to . . . Rule . . . 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers Inc., 761 F.3d 732, 736 (7th Cir. 2014). To survive a Rule 12(b)(6) motion, “a complaint must allege ‘sufficient factual matter to state a claim to relief that is plausible on its face.'” Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015) (quoting Gogos v. AMS Mech. Sys. Inc., 737 F.3d 1170, 1172 (7th Cir. 2013)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).


         To state a § 1983 claim for a constitutional deprivation, “a plaintiff must allege that . . . [s]he was deprived of a right secured by the Constitution . . . of the United States . . . by a person or persons acting under color of state law.” Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Defendants do not dispute that they were acting under color of state law, so I need only consider whether Van Ert plausibly alleges that they violated her federal constitutional rights. I consider each federal constitutional right that she asserts in turn.

         A. Due Process

         Van Ert argues that defendants violated her Fourteenth Amendment right to due process. To state a cognizable due process claim, she must allege that “the government “deprived [her] of a constitutionally protected liberty or property interest without due process of law.” Roake v. Forest Preserve District of Cook County, 849 F.3d 342, 347 (7th Cir. 2017) (quoting Hinkle v. White, 793 F.3d 764, 767 (7th Cir. 2015)).

         Van Ert argues that defendants deprived her of a “valid interest in her reputation, ” requiring her to close her business, relocate, and change professions. See Pl.'s Br., ECF No. 11, at 15, 17. But an individual's “interest in [her] reputation . . . is neither ‘liberty' nor ‘property' guaranteed against state deprivation without due process of law.” Paul v. Davis, 424 U.S. 693, 712 (1976). Thus, without more, Van Ert's interest in her reputation is not enough to support a cognizable due process claim.

         A plaintiff may state a due process claim based on reputational harm, but only if she can plausibly allege that, “as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished.” Id. at 711. For example, if the government fires a public employee (a distinct change in status); the “circumstances of the discharge . . . [are] publically stated”; and “the employee's good name, reputation, honor or integrity . . . [are] called into question in a manner that makes it virtually impossible for the employee to find new employment in his chosen field, ” the employee has been deprived of “a liberty interest in pursuing the occupation of his choice.” Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001).

         Van Ert does not identify any change in status or any right under state law that she lost due to defendants' alleged conduct. Instead, she simply argues that defendants denied her procedural protections provided by Wisconsin's public records law when they failed to give her notice and an opportunity to seek a court order preventing disclosure before they released her email and name to the media. See Wis. Stat. § 19.356(3). Even if Van Ert was entitled to such process, “a failure to follow state statutes or state-mandated procedures does not amount to a federal due process claim of constitutional magnitude.” Dietchweiler ex rel. Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016). Thus, the complaint fails to state a cognizable due process claim.

         B. Privacy

         Van Ert next alleges that defendants violated her constitutional right to privacy. As a matter of substantive due process, the Fourteenth Amendment protects “at least two different kinds of [privacy] interests.” Whalen v. Roe, 429 U.S. 589, 599 (1977). One such interest is “in independence in making certain kinds of important decisions.” Id. at 599-600. The Fourteenth Amendment protects this interest by limiting “the States' power to substantively regulate conduct” in certain areas, such as “marriage, procreation, contraception, family relationships, and child rearing and education.” Paul, 424 U.S. at 713. Van Ert does not “challenge . . . the State's ability to restrict [her] freedom of action in a sphere contended to be ‘private, '” id., or otherwise argue that defendants' alleged conduct impaired her “interest in making important decisions independently, ” Whalen, 429 U.S. at 600, so she fails to state a substantive due process claim based on this privacy interest.

         The second privacy interest protected by the Fourteenth Amendment is “in avoiding disclosure of personal matters.” Whalen, 429 U.S. at 599. Though this interest reflects a broad “right to be let alone, ” id. at 599 n.25 (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)), courts usually recognize it in more specific forms, such as “a ‘qualified' constitutional right to the confidentiality of medical records and communications.” Coffman v. Indianapolis Fire Dep't, 578 F.3d 559, 566 (7th Cir. 2009); see also, e.g., Denius v. Dunlap, 209 F.3d 944, 958 (7th Cir. 2000) (noting that “a measure of protection under the federal constitutional right of privacy” applies to “some types of financial ...

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