Rempson et al v. Village of Dolton, Illinois, The et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 8/23/2012. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CURTIS REMPSON,
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Plaintiff,
v.
VILLAGE OF DOLTON, et al.,
Defendants.
CASE NO.: 11-cv-2405
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Curtis Rempson filed a two-count complaint [1] against Defendants Village of
Dolton, Board of Police Commissioners, Gail Towers, Ronnie Lewis, James T. Jefferson, Garry
Lambert, Willie L. Lowe, Samalla H. McClellan, and Eva M. Nicholas (collectively,
“Defendants”) alleging a violation of his due process rights under 42 U.S.C. § 1983 (Count I),
and defamation (Count II). Defendant Village of Dolton filed a motion to dismiss Plaintiff’s
complaint pursuant to Fed. R. Civ. P. 12(b)(6). [25]. For the reasons stated below, Defendant’s
motion [25] is granted.1
I.
Background2
In January, 2005, Plaintiff Rempson became a police officer in Dolton, Illinois. Prior to
that time, he had passed all of the requisite examinations for the position. On March 28, 2008,
Plaintiff was promoted to the commissioned rank of sergeant of the Dolton Police Department.
Prior to that date, Plaintiff had passed a written and oral promotion examination held by
1
Among the other Defendants, only Defendant Board of Police Commissioners has appeared and filed a
responsive pleading – an answer [21].
2
For purposes of Defendants’ motion to dismiss, the Court assumes as true all well-pleaded allegations
set forth in the complaint. See, e.g., Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th
Cir. 2007).
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Defendant for the position of sergeant.
Accordingly to Plaintiff, at all relevant times he
complied with all regulations and performed all duties as a sergeant of the Dolton Police.
On August 11, 2010 Plaintiff was notified by Defendant Ronnie Lewis, Mayor of the
Village of Dolton, that his promotion to sergeant was nullified and that he was to be reclassified
as a Dolton police officer, effective August 14, 2010.
When Plaintiff was demoted from
sergeant to officer, his pay was reduced. Defendants did not give notice of any charges against
Plaintiff and did not grant him a hearing before the Village of Dolton board of Fire and Police
Commissioners prior to demoting him from sergeant to officer.
Plaintiff then filed the instant complaint alleging (1) that when Defendants demoted him
from sergeant to officer without giving him notice of the charges or granting him a hearing,
Defendants violated his due process rights pursuant to 42 U.S.C. § 1983 and (2) a claim of
defamation.3
II.
Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d
3
Although Plaintiff's complaint references only a due process claim and a defamation claim, in his
response to Defendant’s motion to dismiss Plaintiff also appears to assert a Monell claim. This is
problematic in several respects. First, it is well established that Plaintiff cannot amend his complaint
through his brief. Guaranty Residential Lending, Inc. v. International Mortg. Center, Inc. 305 F. Supp.
2d 846, 852 (N.D. Ill. 2004) (citing Kennedy v. Venrock Associates, 348 F.3d 584, 593 (7th Cir. 2003)).
Second, in order to state a Monell claim, a plaintiff must allege that: (1) the defendant had an express
policy that caused a constitutional deprivation when enforced; (2) the defendant had a widespread practice
that was so permanent and well-settled as to constitute a custom or usage with the force of law; and (3)
the constitutional injury was caused by an official who had "final policymaking authority." McCormick v.
City of Chicago, 230 F.3d 319, 323–24 (7th Cir.2000). Here, Plaintiff has failed to plead that there is a
policy or widespread practice, and the Court does not see how he could allege the existence of a policy
given the other facts that Plaintiff has pled. Finally, in the absence of a viable due process claim, any
possible Monell claim that Plaintiff may wish to assert also would fail. See Houskins v. Shehan, 548 F.3d
480, 493 (7th Cir. 2008) (where plaintiff fails to establish deprivation of a constitutional right, Monell
claims must also fail). For all of these reasons, the Court advises that (1) there is no currently pending
Monell claim in this case and (2) any Monell claim Plaintiff may wish to raise in an amended complaint
will be viable only if Plaintiff is able to successfully navigate the issues raised above.
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1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first
must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that
the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “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)).
Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief
above the “speculative level,” assuming that all of the allegations in the complaint are true.
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly,
550 U.S. at 555). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563.
The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable
inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
III.
Analysis
A.
Procedural Due Process
In Count I, Plaintiff asserts a § 1983 claim for violation of his procedural due process
rights.4 Plaintiff contends that he had a constitutionally-protected property and/or liberty interest
in his continued employment in the position of sergeant of police. He further maintains that he
4
In order to state a claim under § 1983, Plaintiff must allege that the Defendants were acting under color
of state law when they deprived him of a constitutional right. See Estate of Sims ex rel Sims v. County of
Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (citing Christensen v. County of Boone, Illinois, 483 F.3d 454,
457 (7th Cir. 2007)). “Section 1983 is not itself a source of any substantive rights, but instead provides
the means by which rights conferred elsewhere may be enforced.” Bublitz v. Cottey, 327 F.3d 485, 488
(7th Cir. 2003) (citing Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997)). To allege a § 1983
violation, Plaintiff must do more then make a general allegation that his constitutional rights were
violated; he must allege a deprivation of a specific constitutional right. See Trautvetter v. Quick, 916
F.2d 1140, 1148 (7th Cir. 1990) (citing Wilson v. Civil Town of Clayton, 839 F.2d 375, 379 (7th Cir.
1988)).
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was deprived of due process of law prior to the deprivation of his property and/or liberty interest.
As set forth below, even read charitably, Plaintiff’s complaint fails.
The Fourteenth Amendment imposes constraints on government actions which deprive an
individual of “liberty” or “property” interests within the meaning of the Due Process Clause. See
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To assert a violation of the Due Process Clause,
Plaintiff must be able to show that he had a “property interest” and that he was deprived of this
interest without due process of law. See Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir.
2003) (citing Bishop v. Wood, 426 U.S. 341, 343 (1976)). Specifically, Plaintiff’s due process
claims turn upon whether he had a property right in his position as sergeant of police.
To demonstrate that he was deprived of a protected interest, Plaintiff “must first establish
that he had a property interest * * * of the sort that the Constitution protects.” Border v. City of
Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996). Property interests are not created by the United
States Constitution; “[r]ather 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 certain benefits and that support claims of entitlement to those
benefits.” Moore v. Muncie Police and Fire Merit Com’n, 312 F.3d 322, 326 (7th Cir. 2002)
(citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). For example, in the context of fired
public employee bringing a procedural due process claim against his employers, the Seventh
Circuit recently stated that “[a] property interest in continued employment ‘can be created in one
of two ways, (1) by an independent source such as state law securing certain benefits; or (2) by a
clearly implied promise of continued employment.’” Palka v. Shelton, 623 F.3d 447, 452 (7th
Cir. 2010) (citing Phelan, 347 F.3d at 681). To support a due process claim in the context of
public employment, the Seventh Circuit held that the plaintiff must have an “entitlement to
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continued employment,” such as a collective-bargaining agreement. Palka, 623 F.3d at 452
(citing Lee v. County of Cook, 862 F.2d 139, 141 (7th Cir. 1988); Krieg v. Seybold, 481 F.3d
512, 519-20 (7th Cir. 2007)). Plaintiff bears the burden of proving that he had a property interest
in his employment as police sergeant. See Krieg v. Seybold, 481 F.3d 512, 520 (7th Cir. 2007)
(holding plaintiff bears the burden of showing that he had a property interest in his job arising
out of a state statute, state or municipal regulations, or a contract with a public entity).
While the Court accepts all well-pleaded facts in the complaint as true, the Court need not
accept as true conclusory statements of law or unsupported conclusions of fact. See Snodderly v.
R. U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 896 (7th Cir. 2001). Simply claiming a
property right in one’s job without facts to support the naked conclusion is not enough to
sufficiently plead a property interest. See Lee v. County of Cook, 862 F.2d 139, 141-42 (7th Cir.
1988) (holding that to assert a property interest a plaintiff must allege enough facts to show that
she “has a legitimate claim of entitlement not to lose a valuable governmental benefit except for
cause”).
Here, Plaintiff contends that he has a protected property interest in his “continuing
employment” as sergeant and cites 65 ILCS 5/10-2.1-17 in support.5 But 65 ILCS 5/1—2.1-17
states that no police employee “shall be removed or discharged except for cause, upon written
charges, and after an opportunity to be heard in his own defense.” (Emphasis added.) As
Defendant notes, 65 ILCS 5/1—2.1-17 “applies only to the removal, discharge or suspension of a
police officer. It does not even require a pre-deprivation hearing prior to the imposition of
departmental disciplinary sanctions or even a demotion.” Altman v. Hurst, 734 F.2d 1240, 1242
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Plaintiff’s complaint references only the Illinois Personnel Code 20 ILCS 415/8b.16, which does not
apply to Plaintiff. Plaintiff then cites to 65 ILCS 5/1—2.1-17 in his response brief. Although Plaintiff
filed to cite 65 ILCS 5/1—2.1-17 in his complaint, the Court will address 65 ILCS 5/1—2.1-17 in this
decision, as it is the relevant statute.
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(7th Cir. 1984) (emphasis added). Thus, even if Plaintiff did have a property interest in his
position as a sergeant, the statute requiring a process prior to removal or discharge does not
apply.6
In addition, the Seventh Circuit has held that a particular position or rank is not an
occupation and thus does not amount to a property interest:
To be a policeman is to follow a particular calling, and to be
excluded from that calling is an infringement of liberty of
occupation. But a particular rank in the police force is not an
occupation, just as the army is not a series of separate occupations
. . . and just as the private practice of law is not composed of two
occupations—partner and associate . . . [R]anks within an
occupation—head nurse versus rank-and-file nurse, for example—
are not “occupations” themselves . . . .
Bigby v. City of Chicago, 766 F.2d 1053, 1056 (7th Cir. 1985); see also United States v. City of
Chicago, 869 F.2d 1033, 1036 (7th Cir. 1989); Brooks v. City of Chicago, 2012 WL 13570, at *6
n. 5 (N.D. Ill. Jan. 4, 2012).
In sum, because a property interest is required to state a due process claim and Plaintiff
has failed to allege facts that give rise to a property interest, Plaintiff has failed to state a claim
for deprivation of due process under Section 1983 and the Fourteenth Amendment. See, e.g.,
Lee, 862 F.2d at 141-42 (affirming dismissal of state employee’s third amended complaint where
plaintiff did not allege facts showing a property interest in her job); Smith v. Bd. of Educ. of
Urbana School Dist., 708 F.2d 258, 264-65 (7th Cir. 1983) (affirming dismissal for failure to
state a claim where plaintiff’s complaint did not allege facts from which a property interest in
employment could be inferred).
Although it appears unlikely that Plaintiff could cure the deficiencies identified above in
an amended pleading, in an abundance of caution, the Court will allow Plaintiff 21 days to
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Plaintiff does not reference, either in his complaint or his briefs, any other conceivable source of his
claimed entitlement – i.e., a state or municipal regulation or a collective bargaining agreement.
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replead Count I against Defendant City of Dolton if Plaintiff believes that he can amend his
complaint to state a viable federal claim. The Court notes that the federal claims against other
Defendants remain pending. The Court is hard pressed to see how the absence of a protectable
property interest in a particular position or rank would not doom Plaintiff’s federal due process
claim across the board as to all Defendants, but it is the responsibility of each Defendant to seek
dismissal – or, at this stage of the case, summary judgment – as to that claim if each Defendant
so desires. However, because it may be the case that all of Plaintiff’s federal claims will be
dismissed prior to trial, the Court will defer consideration of Plaintiff’s state law defamation
claim at this time in the interests of comity and judicial economy and efficiency. See Groce v.
Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999) (“it is the well-established law of this circuit that the
usual practice is to dismiss without prejudice state supplemental claims whenever all federal
claims have been dismissed prior to trial”); see also Leister v. Dovetail, Inc., 546 F.3d 875, 882
(7th Cir. 2008) (“When the federal claim in a case drops out before trial, the presumption is that
the district judge will relinquish jurisdiction over any supplemental claim to the state courts”). If
and when it becomes apparent that a federal claim can survive as to one or more of the
Defendants, the Court will reinstate Defendant’s motion to dismiss Count II, and decide the issue
on the current briefs.
IV.
Conclusion
For the reasons stated above, Defendant’s motion for dismiss [25] is granted as to
Plaintiff’s federal claim (Count I). Plaintiff is given 21 days to replead as to Count I if he
believes that he can cure the defects identified above. As further explained above, Defendant’s
motion to dismiss Plaintiff’s state law defamation claim (Count II) is denied without prejudice,
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as the Court will defer consideration of that claim until it is clear that Plaintiff’s federal claim
will not be dismissed prior to trial.
Dated: August 23, 2012
______________________________
Robert M. Dow, Jr.
United States District Judge
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