Allen v. City of Moline et al

Filing 13

ORDER granting in part and denying in part 10 , Defendants' Motion to Dismiss. See full written order. Entered by Chief Judge James E. Shadid on 11/21/2017. (RT, ilcd)

E-FILED

Tuesday, 21 November, 2017 02:07:44 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
TODD ALLEN,
Plaintiff,
v.

Case No. 4:17-cv-04066-JES-JEH

CITY OF MOLINE, et al.,
Defendants.

ORDER
Now before the Court are the Defendants’ Partial Motion to Dismiss Plaintiff’s
Complaint (D. 11) 1 and the Plaintiff’s Response in Opposition (D. 12). For the reasons set forth
below, the Defendants’ Motion (D. 11) is DENIED in part and GRANTED in part.
BACKGROUND
The Plaintiff, Todd Allen, filed his Complaint in February 2017 against the City of
Moline and the following individuals: Alderman Stephanie Acri, Alderman John Zelnio,
Alderman Mike Wendt, Alderman David Parker, Kevin Irby, and Scott Houzenga. (D. 1). The
Plaintiff seeks damages pursuant to 42 U.S.C. § 1983 (“§ 1983”) alleging violations of his First
and Fourteenth Amendment rights and Conspiracy by all Defendants. Id. He further alleges
defamation by Parker, Irby, and Zelnio.
The Plaintiff has been a firefighter for the City of Moline since 1993 and is currently
serving as a Battalion Chief. Defendants Irby and Houzenga are also City of Moline firefighters.
Defendants Acri, Zelnio, Wendt, and Parker served as elected alderman for the City of Moline
during all relevant times. The Plaintiff’s now-wife, Heather Allen (“Heather”), began working

1

Citations to the Docket in this case are abbreviated as “D. __.”

1

for the City of Moline fire department in 2004, when the Plaintiff was already serving as
Battalion Chief.
The Plaintiff alleges the Defendants retaliated against him when: (1) Houzenga filed a
lawsuit against him; (2) Houzenga, Irby, “and others” defamed him; (3) Houzenga threatened
him in front of his son; (4) an unknown person vandalized his house and broke some of his
windows; (5) Houzenga called an unidentified employee “Todd’s boy” after the unidentified
employee accused Houzenga of cheating on a work-related test—resulting in Houzenga and Irby
retaliating against the employee; (6) false and defamatory statements about him were published;
and (7) the Defendants made accusations and initiated investigations into him forging
timekeeping records. (D. 1 at pp. 8-10).
The Plaintiff claims that Heather was subjected to sexual harassment at the fire
department until she was constructively discharged in 2010. He says he reported Heather’s
complaints up the chain of command and attempted to ensure they were addressed. The Plaintiff
asserts that Houzenga was one of the individuals sexually harassing Heather. According to the
Plaintiff, Houzenga filed a lawsuit against him in 2012, alleging intentional infliction of
emotional distress, which was dismissed in 2014.
In March 2016, the City conducted an initial investigation into allegations of timekeeping
irregularities within the fire department. The Plaintiff’s timekeeping and use of flex time were
investigated. While the Plaintiff was not found to have engaged in any misconduct, the
department’s payroll system was found to be flawed, resulting in unintentional timekeeping
errors, clerical errors, and inadvertent miscoding.
In the wake of the investigation, the Plaintiff alleges that Irby falsely accused him of
engaging in misconduct and stealing time off. He says Irby provided this false information to the

2

City Council. Irby, Acri, Wendt, and Parker initiated a second investigation into timekeeping
irregularities within the department, hiring the law firm of Lane & Waterman to conduct it. The
Plaintiff claims the second investigation was used by the Defendants to influence the City’s 2017
mayoral election. Acri was running in that election as a write-in candidate. The Plaintiff insists
he had no affiliation with Acri’s candidacy for mayor.
The Plaintiff further alleges that in approximately October 2016, Zelnio made false
statements that he stole time off from the City. He also claims that sometime around November
2016, Irby made the same allegation and falsely stated that the Plaintiff had an affair.
Additionally, the Plaintiff claims that in January 2017, Parker falsely told people that a City
employee was fired for approving the Plaintiff’s inaccurate timekeeping records.
During the second investigation into timekeeping irregularities, an attorney from Lane &
Waterman interviewed the Plaintiff. The attorney mentioned the Plaintiff’s prior complaints
about Houzenga and Irby harassing him and asked questions about Heather.
The Defendants now move to dismiss the Plaintiff’s Complaint, pursuant to Federal Rule
of Civil Procedure 12(b)(6). The Defendants argue that each of the Plaintiff’s counts are faulty.
Specifically, they claim: (1) Count I fails to state a claim, or, in the alternative, all of the
individual Defendants are entitled to qualified immunity; (2) Count II only states a claim for
retaliatory investigation and fails to state a claim against Zelnio or Houzenga; (3) Count III is
barred by the intracorporate conspiracy doctrine or otherwise fails to state a plausible entitlement
to relief; and (4) the claims in Count IV are barred by absolute privilege. (D. 11 at pp. 6-10).
LEGAL STANDARD
In reviewing the Defendants’ Motions to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court accepts the Plaintiff’s factual allegations as true. Erickson v.

3

Pardus, 551 U.S. 89, 94 (2007). Allegations stated in the form of legal conclusions, however, are
insufficient to survive a motion to dismiss. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d
873, 885 (7th Cir. 2012). A complaint must contain a short and plain statement of the plaintiff’s
claim, sufficient to show entitlement to relief and to notify the defendants of the allegations against
them. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). This
standard is met if the plaintiff describes in sufficient factual detail enough to suggest a right to
relief beyond a speculative level. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v.
Concentra Health Srvs., 496 F.3d 773, 776 (7th Cir. 2007). In short, “the plaintiff must give
enough details about the subject-matter of the case to present a story that holds together. In other
words, the court will ask itself could these things have happened, not did they happen.” Swanson
v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (emphasis in original).
ANALYSIS
In Count I, the Plaintiff alleges that all of the Defendants violated his First and/or
Fourteenth Amendment rights. (D. 1 at pp. 13-15). Specifically, he claims his right to familial
association was violated by the Defendants’ retaliatory acts. Id. The Defendants argue that
Count I fails to state a claim, or, in the alternative, the individual Defendants are entitled to
qualified immunity. (D. 11 at pp. 6-8). The parties have divergent starting points for their
analyses of the issue. The Defendants assert that the only proper analysis is “under the due
process clause of the Fourteenth Amendment, as opposed to the First Amendment.” Id. at pg. 6.
The Plaintiff, on the other hand, claims he has sufficiently pled a prima facie case on Count I
under the First Amendment, or, alternatively, under the Fourteenth Amendment. (D. 12 at pp. 26).

4

The Plaintiff’s claim in Count I is “based on retaliatory action by Defendants for his
relationship with his wife and his support for her sexual harassment complaints[.]” Id at pg. 5.
In his view, his reporting Heather’s sexual harassment complaints and offering her support
during the process were expressions that are protected under the First Amendment. The Plaintiff
finds his scenario analogous to one analyzed by the Sixth Circuit in Adkins v. Bd. of Educ. Of
Magoffin County, Ky. 982 F.2d 952 (6th Cir. 1993). In Adkins, the wife and secretary of a high
school principal was allegedly fired for supporting her husband, who opposed the actions of a
superintendent. Id. at 956. The Sixth Circuit found that the plaintiff “had a liberty interest in not
being denied employment for exercising her First Amendment right to freedom of association.”
Id.
Unlike in Adkins, the Plaintiff here is not alleging he was denied employment for
exercising his First Amendment rights. Rather, he is claiming that supporting his wife resulted
in retaliation against him, resulting in his right to familial association being violated. The
Seventh Circuit has yet to recognize a First Amendment familial association claim. See
Norman-Nunnery v. Madison Area Technical College, 625 F.3d 422 (7th Cir. 2010). While
Norman-Nunnery acknowledged that the Second Circuit applied the First Amendment to a
similar claim in Adler v. Pataki, 185 F.3d 35 (2nd Cir. 1999), the Seventh Circuit declined to do
so in Norman-Nunnery because the Plaintiff’s claim failed for lack of evidence. NormanNunnery, 625 F.3d at 434. The Seventh Circuit previously suggested, however, that familial
association claims similar to the one raised here arise under the Fourteenth Amendment, not the
First. Montgomery v. Stefaniak, 410 F.3d 933, 937 (7th Cir. 2005).
Here, much like in Norman-Nunnery, at this phase of the litigation the Court does not
have sufficient evidence to determine whether the retaliatory acts alleged by the Plaintiff were

5

done because he supported Heather and reported her allegations of sexual harassment.
Accepting the Plaintiff’s allegations as true, however, it is still possible for him to prove that the
retaliation he alleges was done as a result of his support for Heather. After all, discovery is still
on-going in this matter. Once discovery has closed, the parties will be better able to make their
respective arguments, and the Court determine the appropriate framework for the Plaintiff’s
claim on this issue.
The Defendants also contend that they are entitled to qualified immunity in the
alternative. (D. 11 at pp. 7-8). The Plaintiff merely dismisses this argument as “frivolous.” (D.
12 at pg. 7). Qualified immunity only fails to attach when an official’s conduct violates “clearly
established statutory or constitutional rights of which a reasonable person would have known.”
White v. Pauly, 137 S. Ct. 548, 551 (2017). The specific details of the incidents at issue are not
presently before the Court. This makes conducting a constitutional analysis of the events
impossible for the time being. Again, accepting all of the Plaintiff’s allegations as true and
assuming the Defendants engaged in the retaliatory behavior as a result of the Plaintiff’s support
for Heather, at least some of the allegations touch upon statutory or constitutional rights of which
the Defendants should have reasonably known the Plaintiff was entitled. As such, the
Defendants’ Motion to Dismiss Count I is DENIED.
Next, the Plaintiff alleges in Count II that the Defendants further violated his First
Amendment rights. (D. 1 at pp. 15-17). In this instance, he claims they violated his “right to be
non-affiliated with a candidate.” Id. at pg. 16. The Defendants argue that Count II only states a
claim for retaliatory investigation and fails to state claims against Zelnio or Houzenga. (D. 11 at
pp. 8-9). The Plaintiff counters that Count II is properly plead because the First Amendment
protects against retaliatory acts that chill speech and his Complaint sufficiently pleads claims

6

against Zelnio and Houzenga. (D. 12 at pp. 7-10). The retaliating act here being malicious
prosecution.
“It is undisputed that political nonaffiliation is a right protected under the first
amendment.” Hermes v. Hein, 742 F.2d 350, 353 n. 3 (7th Cir. 1984) (citing Elrod v. Burns, 427
U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980)). Section 1983 creates a species of
tort liability for the deprivation of any rights, privileges, or immunities secured by the
Constitution. Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). The Defendants’ claim
that “no malicious prosecution claim may be brought in Illinois under § 1983[]” is entirely
reliant on their citation to Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001), which was
abrogated by Manuel. 137 S. Ct. at 920. It is well established that the Constitution protects
citizens from malicious prosecution and that a plaintiff can state a claim for malicious
prosecution under § 1983. See, e.g. Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998).
Although there is some question as to whether there is a federal tort of malicious prosecution.
See e.g. Albright v. Oliver, 510 U.S. 266 (1994). Here, the Plaintiff could have counterclaimed
in state court in response to the suit brought against him there by Houzenga. See 735 ILCS 5/2608. Therefore, a state remedy was available to him, which precludes a malicious prosecution
claim here. Julian v. Hanna, 732 F.3d 842, 845 (7th Cir. 2013).
The Defendants further claim that the Plaintiff’s remaining alleged retaliatory acts consist
of the Defendants making false allegations or defamatory statements, none of which violate the
Constitution. (D. 11 at pg. 8). Indeed, libel and slander are not prohibited by the Constitution.
See Davis v. Chicago, 53 F.3d 801, 804 (7th Cir. 1995). Accordingly, the Plaintiff’s § 1983
claim that his First Amendment right to political non-affiliation was violated, in so far as it is

7

based on libel and slander, is unsustainable. Therefore, the Defendants’ Motion to Dismiss
Count II is GRANTED in part as to malicious prosecution and libel and slander.
Ultimately, the Defendants also argue that only Irby, Wendt, and Parker are alleged to
have engaged in unconstitutional actions and therefore Count II should be dismissed against
Zelnio and Houzenga outright. (D. 11 at pg. 9). A valid § 1983 claim requires the defendant’s
personal involvement in the alleged constitutional deprivation. Stringer v. Rowe, 616 F.2d 993,
1000-01 (7th Cir. 1980). This is not, however, a strictly interpreted standard. It is sufficient for
the deprivation of a constitutional right to occur at a defendant’s direction or with their
knowledge and consent. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982). The allegations
against Zelnio and Houzenga include the claim that Houzenga conspired with others—Zelnio
among them—to retaliate against the Plaintiff. (D. 1 at pg. 6). As such, the Plaintiff’s Count II
claim against Zelnio and Houzenga is sufficiently pled and survives the Defendants’ Motion to
Dismiss. The Defendants’ Motion to Dismiss Count II is therefore DENIED in part as to their
claim that Zelnio and Houzenga are not alleged to have engaged in unconstitutional acts, in this
instance, interfering with the Plaintiff’s First Amendment right to political non-affiliation.
In Count III, the Plaintiff alleges that all of the Defendants conspired against him. (D. 1
at pp. 17-19). The Defendants argue that Count III is barred by the intracorporate conspiracy
doctrine or otherwise fails to state a plausible claim entitling him to relief. (D. 11 at pp. 9-10).
The Plaintiff responds by asserting that the intracorporate conspiracy doctrine does not apply in
this instance. (D. 12 at pp. 10-11).
Under the intracorporate conspiracy doctrine, an agreement between or among agents of
the same legal entity is not an unlawful conspiracy, provided the agents acted within their official
capacities. Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017). The Plaintiff claims that he alleged

8

in his Complaint that the Defendants “discriminated and retaliated against [him] based on their
personal bias.” (D. 12 at pg. 11) (citing D. 1 ¶¶ 22, 23, 25, 28, 35, 37(a-g)). This is a drastic
misrepresentation of the Complaint.
The paragraphs cited by the Plaintiff contain no reference to the Defendants’ personal
biases. Indeed, the Plaintiff does not reference their biases or agendas anywhere in his
Complaint. Moreover, he ignores his own explicit allegations to the contrary, that the
Defendants were acting within their official capacities. For example, the Plaintiff alleged in his
Complaint that the “City of Moline is responsible for the acts of Defendants Acri, Zelnio, Wendt,
Parker, Irby, and Houzenga who were acting within the scope of their agency and employment
with the City of Moline and pursuant to a policy, custom, and/or pattern of harassment,
discrimination, and retaliation.” (D. 1 at pg. 4). He went on to specify that “Defendants Acri,
Zelnio, Wendt, Parker, Irby, and Houzenga have acted under color of state law at all material
times hereto.” Id. The Plaintiff even reiterates in response to the Defendants’ Motion to Dismiss
that the Defendants were acting “under color law” during the course of their alleged conspiracy.
(D. 12 at pg. 11-12).
Since they were acting within the scope of their employment with the City pursuant to a
policy, custom, and/or pattern of harassment, discrimination, and retaliation, according to the
Plaintiff, the Defendants cannot be said to have simultaneously acted outside their official
capacities. As a matter of law, the Plaintiff’s allegations cannot constitute an unlawful
conspiracy on the part of the Defendants. As such, the Defendants’ Motion to Dismiss Count III
of the Plaintiff’s Complaint is GRANTED. The Court need not address the Defendants’
remaining arguments pertaining to Count III.

9

Finally, in Count IV, the Plaintiff alleges Defendants Irby, Zelnio and Parker defamed
him. (D. 1 at pp. 19-22). The Defendants argue the Plaintiff’s defamation claims are barred by
absolute privilege. (D. 11 at pg. 10). The Court agrees with the Defendants.
Under Illinois law, government officials have absolute immunity from defamation claims
brought against statements which are reasonably related to the official’s job responsibilities.
Novoselsky v. Brown, 822 F.3d 342, 349-50 (7th Cir. 2016). The Defendants are thus immune
from liability only for communications made within the scope of their official functions and
duties. As discussed previously, the Plaintiff insists that the Defendants were acting within the
scope of their employment at all relevant times. (D. 1 at pg. 4). Accepting the well plead facts
from the Plaintiff’s Complaint as true, the Defendants’ allegedly defamatory communications
were reasonably related to their job responsibilities. Accordingly, the Defendants are entitled to
absolute immunity from defamation claims brought against any of their alleged communications.
Thus, the Defendants’ Motion to Dismiss Count IV of the Plaintiff’s Complaint is GRANTED.
Given the facts presented in the Complaint, which the Court must accept as true, the
Plaintiff has sufficiently pled Count I and a portion of Count II. As a matter of law, however, he
has not sufficiently plead portions of Count II or any portion of Count III or Count IV.
CONCLUSION
For the foregoing reasons, the Defendants’ Motion (D. 11) is DENIED in part and
GRANTED in part.
It is so ordered.
Entered on November 21, 2017
_s/ James E. Shadid
James E. Shadid
Chief United States District Judge

10