Finegan et al v. Brannon et al

Filing 21

ORDER entered by Judge Sara Darrow on August 15, 2017. The 17 18 motions to dismiss are GRANTED. The case is DISMISSED, and the Clerk ordered to close it. (SC, ilcd)

E-FILED

Tuesday, 15 August, 2017 01:45:38 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MICHAEL FINNEGAN, DONNIE
ROGERS,
Plaintiffs,
v.
CHRISTINE BRANNON, individually and
in her official capacity, EDWARD
BARRETT, individually and in his official
capacity, TONY MCCUBBIN, individually
and in his official capacity, ROBERT
SOLLARS, individually and in his official
capacity, CHUCK STOUT, individually and
in his official capacity, JOHN VARGA,
individually and in his official capacity,
MIKE HOFFMAN, individually and in his
official capacity, and RICK RUTHART,
individually and in his official capacity,
Defendants.

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Case No. 1:17-cv-01095-SLD-JEH

ORDER
Before the Court are a motion to dismiss for failure to state a claim by Defendants
Brannon, Hoffman, and Varga (“the Illinois defendants”), ECF No. 16; and another motion to
dismiss for failure to state a claim by Defendants McCubbin, Ruthart, Sollars, and Stout (“the
union defendants”), ECF No. 18. For the following reasons, the motions are GRANTED.
BACKGROUND1
Plaintiffs are Correctional Transportation Officers employed by the Illinois Department
of Corrections (“IDOC”). Plaintiff Finnegan works at IDOC’s East Moline Illinois Correctional
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In a motion to dismiss, all well-pleaded allegations in the complaint are taken as true and viewed in the light most
favorable to the plaintiff. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012)
(citation omitted). Accordingly, the material set forth here is, unless otherwise noted, based on allegations in the
Complaint, ECF No. 1.

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Facility, and Plaintiff Rogers works at IDOC’s Dixon Correctional Center.2 Plaintiffs allege that
Brannon and Varga, wardens of the East Moline and Dixon facilities, respectively, have in some
fashion prevented them from working overtime. It is implied that Hoffman, as “director of
Central Management Services” has in some more centralized way coordinated this deprivation
(what way is, again, unspecified). It is suggested that the union defendants, all of whom work
for or represent local branches of the American Federation of State, County and Municipal
Employees unions, have entered into labor agreements with Illinois and the Illinois defendants
that in some way assign the privilege to work overtime to Correction Officers, as distinct from
Correctional Transportation Officers. All of these activities are asserted, in one count for each
plaintiff, to have deprived Plaintiffs of a property interest without due process of law, in
violation of the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C.
§ 1983.
DISCUSSION
I.

Legal Standard on a Motion to Dismiss
In reviewing a motion to dismiss, a court must accept as true all well-pleaded facts in the

complaint, and draw all reasonable inferences in favor of the plaintiff. Scanlan v. Eisenberg, 669
F.3d 838, 841 (7th Cir. 2012). A court will dismiss a complaint if it fails to state a claim upon
which relief can be granted. Fed. R. Civ. P. 12(b)(6). In determining whether such a claim has
been stated, a court should first identify pleadings that “because they are no more than
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While the East Moline Illinois Correctional Facility lies within the Central District of Illinois, the Dixon
Correctional Center is located in the Northern District of Illinois, raising the question of whether venue for Plaintiff
Rogers’s claim is proper in the Central District. See 28 U.S.C. § 1391(b) (venue lies in the judicial district where
any defendant resides, or where the acts or omissions complained of occurred); see also 28 U.S.C. § 1406(a) (district
court may cure improper venue as to division or district by dismissing or transferring the case). However, when
raised by a party (rather than the Court) venue is an affirmative defense, subject to waiver, and no defendant raised
venue in its filings. Fed. R. Civ. P. 12(h)(1). More to the point, there is no reason for the Court to transfer venue
sua sponte, or dismiss for lack of venue. There is no question as to the Court’s subject matter or personal
jurisdiction, and the Court considers Plaintiffs’ claim only to dismiss it in whole as failing to state a claim, as any
other federal district court would do. Better this Court than, after more judicial overhead, another.

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conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). It should then take the remaining, well-pleaded factual allegations, “assume their
veracity[,] and . . . determine whether they plausibly give rise to an entitlement to relief.” Id.
This means that a complaint must provide “allegations that raise a right to relief above the
speculative level.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). A complaint
must also describe its claims in sufficient detail to give a defendant “fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in Bell Atlantic).
II.

Analysis
These claims demonstrate multiple, overlapping misunderstandings of the scope of civil

liability under 42 U.S.C. § 1983.
First, as the Illinois defendants point out, Ill. Mem. Supp. Mot. Dismiss 2–3, ECF No. 17,
the Eleventh Amendment bars suits by citizens for money damages against the states: “The
judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend XI. Although by it terms, the
Amendment does not bar suits against a state by its own citizens (and Finnegan and Rogers are
alleged to be residents of Illinois, and perhaps also citizens), the Supreme Court “has consistently
held that an unconsenting state is immune from suits brought in federal courts by her own
citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662–63
(1974). Exceptions to the rule exist—when a state waives its immunity, when Congress
abrogates a state’s immunity using its enforcement powers under the Fourteenth Amendment, or
when an individual seeks to enjoin a state official from prospective violations of federal law—

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but none apply here. See Ameritech Corp. v. McCann, 297 F.3d 582, 585 (7th Cir. 2002)
(collecting cases). Plaintiffs sue the Illinois defendants in their official and individual capacities,
but official capacity suits are “only another way of pleading an action against an entity of which
an officer is an agent”—here, Illinois. Monell v. New York City Dept. of Social Services, 436
U.S. 658, 690, n.55 (1978). Plaintiffs seek only money damages. Compl. 4–5. Thus, their
claims are barred by the Eleventh Amendment insofar as they are brought against the Illinois
defendants in their official capacities. But see Ameritech, 297 F.3d at 586 (“[I]ndividual capacity
suits do not implicate the Eleventh Amendment's protections[.]”).
Second, as the union defendants observe, Union Mem. Supp. Mot. Dismiss 10–13,
private actors are typically not amenable to liability under 42 U.S.C. § 1983. By its terms,
§ 1983 applies to “[e]very person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities secured by the Constitution and law[.]”
Non-government actors do not usually operate under color of state law, and the unions here are
non-government actors. See Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570
F.3d 811, 815 (7th Cir. 2009) (“Unions are not state actors; they are private actors.”). Courts
recognize two exceptions to the rule: when the state directs or controls the actions of the party in
question, rendering it effectively a state agent; and when a state delegates a traditionally public
function to a private actor. See Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623,
628 (7th Cir. 1999). Neither applies here. Plaintiffs seem to allege that the union defendants
engaged in collective bargaining with employers, as unions do, and that the resulting
employment agreement disfavored Plaintiffs by not allowing them to work overtime. Compl. 3.
Arm’s-length negotiations between a union and state employers do not typically involve the

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employer directing or controlling the actions of the union, and Plaintiffs do not allege it; nor do
such negotiations involve a delegation of authority, and Plaintiffs do not allege it. The claims
against the union defendants fail.
All that remains after these elementary observations are the claims against the Illinois
defendants in their individual capacities. And yet those claims fail via the rudimentary operation
of black-letter law, as would those already discussed and dismissed. As both sets of movants
observe, Ill. Mem. Supp. Mot. Dismiss 4–6, Union Mem. Supp. Mot. Dismiss 4–7, a plaintiff
wanting to make out a claim for deprivation of life, liberty, or property without due process of
law under the Fourteenth Amendment must say that he was deprived of one of these things. See
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570 (1972) (“[T]he range of interests
protected by procedural due process is not infinite.”). When a property interest in employment is
alleged, the basic criteria are well known:
To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it . . . .
Property interests, of course, are not created by the Constitution. Rather, they are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law—rules or understandings that
secure benefits and that support claims of entitlement to those benefits.
Id. at 577. Thus, property interests in employment can be created by contract or operation of
state law. Thornton v. Barnes, 890 F.2d 1380, 1386 (7th Cir. 1989). However, the touchstone,
under Roth, remains entitlement: need, desire, and unilateral expectation will not do. One
cannot be deprived of a thing one never had. See Brown v. Brienen, 722 F.2d 360, 364 (7th Cir.
1983) (“Whether an interest is [sufficiently] substantial depends on the security with which it is
held under state law and its importance to the holder.”).

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Here, Plaintiffs allege only that the Illinois defendants, perhaps pursuant to a collective
bargaining agreement with the union defendants, “failed to allow Michael and Donnie [sic] to
work overtime[.]” Compl. 3. They do not allege an entitlement; rather, they claim, vaguely, that
“overtime hours are available and the duties to be performed during those overtime hours are
expressly assigned to Correction Transportation Officers per Central Management Services job
description for their positions.” Id. Never mind that their job descriptions and collective
bargaining agreements, to which they refer but which they did not attach to their complaint and
which have instead been supplied by the Illinois defendants, Ill. Mem. Supp. Mot. Dismiss Exs.
1, 2, appear to say nothing of the sort. See Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248
(7th Cir. 1994) (“[D]ocuments attached to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to his claim. Such
documents may be considered by a district court in ruling on the motion to dismiss.”). The claim
suffers from two other, even simpler flaws.
First, Plaintiffs don’t claim that they ever were permitted to work overtime, or were
guaranteed the right to, and then had that privilege stripped away. Rather, they seem to say just
that they wanted to work overtime, or had a unilateral expectation of working overtime. This is
not enough. Second, disputes over being allowed to work overtime, like disputes over lunch
breaks, do not involve a property interest of sufficient magnitude to implicate the Fourteenth
Amendment. See Brown, 722 F.2d at 365 (“[T]he Constitution must not be trivialized by being
dragged into every personnel dispute in state and local government. Disputes over overtime, over
work assignments, over lunch and coffee breaks do not implicate the great objects of the
Fourteenth Amendment.”); see also Caniello v. City of New York, No. 00 CIV. 3009 BSJ, 2001
WL 11061, at *1 (S.D.N.Y. Jan. 4, 2001) (“Courts, including those of this Circuit, have

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consistently held that the right to work overtime is not a constitutionally protected property
interest.”) (collecting cases).
Plaintiffs do not allege an entitlement sufficient to satisfy Roth, and the thing they claim
to have been deprived of does not constitute a protectable property interest under the Fourteenth
Amendment. All their claims against all moving defendants must fail for this reason.
Only Defendant Barrett, alleged to be “the State Labor Relations Manager who represents
management in labor disputes between [Illinois] and [the union]” remains. Compl. 2. However,
he was never served, and the case was filed more than ninety days ago. The court dismisses the
action as to him. See Fed. R. Civ. P. 4(m).
CONCLUSION
Accordingly, the motions to dismiss, ECF Nos. 17, 18, are GRANTED. The case is
DISMISSED, and the Clerk ordered to close it.

Entered this 15th day of August, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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