Ores v. Jones et al
Filing
37
ORDER signed by the Honorable Edmond E. Chang on 8/25/2014: For the reasons stated in the Order, Defendants' motion to dismiss is denied 17 . Status hearing of 08/27/2014 remains in place. Emailed notice(Chang, Edmond)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GLENN ORES,
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Plaintiff,
v.
VILLAGE OF DOLTON
and BOLDEN JONES,
Defendants.
No. 13 C 01097
Judge Edmond E. Chang
ORDER
Plaintiff Glenn Ores has filed this lawsuit against the Village of Dolton and
its Chief of Police, Bolden Jones, alleging that Jones violated his right to procedural
due process (Count 1) and asserting a Monell claim against the Village (Count 2).1
R. 1, Compl. Defendants have moved to dismiss both counts. R. 17. For the reasons
stated below, Defendants’ motion is denied.
I. Background
In evaluating Defendants’ motion to dismiss, the Court accepts as true the
factual allegations in the complaint and draws reasonable inferences in Ores’s
favor. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011). “As a general rule, on a Rule
12(b)(6) motion, the court may consider only the plaintiff’s complaint.”2 Rosenblum
1The
Court has subject matter jurisdiction over this case based on 28 U.S.C. § 1331.
argue that the Court should also consider two attachments to their
motion to dismiss: an excerpt from the Village’s collective bargaining agreement with Ores’s
union and an affidavit from Jones. See R. 21, Defs.’ Reply Br. at 2-3; see also R. 17-1, Defs.’
Exhs. A, B. As discussed more fully below, the Court will only consider the collective
bargaining agreement. The affidavit, however, is improper. Although Ores’s complaint does
refer to the suspension memo attached to the Jones affidavit, the affidavit otherwise adds
2Defendants
v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002). Plaintiff Glenn Ores was
a police officer for the Village of Dolton during 2011 and 2012. Compl. ¶¶ 1, 7.
Defendant Bolden Jones was the Village’s Chief of Police during that time. Id. ¶ 3.
In May 2011, two Village police officers were allegedly involved in an excessive-force
incident involving an unknown civilian. Id. ¶ 8. Ores heard a comment in passing
about the incident, just before leaving for a lengthy vacation to Europe. Id. ¶ 10.
Ores assumed that the officer with first-hand knowledge of the incident would file
an official complaint, so Ores left for vacation without filing a complaint. Id.
After an investigation, Jones accused Ores of receiving and failing to report
the excessive-force complaint, and Jones ultimately suspended Ores for fifteen days
(without pay) starting on February 21, 2012. Id. ¶¶ 10, 14. Jones did not file formal
charges against Ores with the Village of Dolton Board of Fire and Police
Commissioners, provide Ores with formal charges, or provide Ores an opportunity
to be heard by the Commissioners before his suspension. Id. ¶ 15. As a result, Ores
lost three weeks’ worth of pay and a disciplinary report was placed in his personnel
file.3 Id. ¶¶ 16-17. This lawsuit followed.
facts to the record that are entirely outside the scope of the facts alleged in Ores’s
complaint. Therefore, it would be improper to consider the affidavit without converting
Defendants’ motion into a motion for summary judgment. See Burke v. 401 N. Wabash
Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013) (explaining that documents attached to a
motion to dismiss are considered part of the pleadings only “if they are referred to in the
plaintiff’s complaint and are central to his claim” (internal quotation marks and citation
omitted)).
3Defendants have since tendered ten days’ worth of pay to Ores. See R. 14, 5/14/13
Minute Entry.
2
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give
the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(internal quotation marks and citation omitted). The Seventh Circuit has explained
that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus
litigation on the merits of a claim’ rather than on technicalities that might keep
plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). These allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to
the assumption of truth are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
3
III. Analysis
Ores raises two claims in his complaint. He alleges that Jones deprived him
of his Fourteenth Amendment right to procedural due process by suspending him
for fifteen days without providing a formal hearing in front of the Board of Fire and
Police Commissioners. Compl. ¶¶ 18-22. Ores also alleges a Monell claim against
the Village, arguing that Jones, as Chief of Police, was acting as a final
“policymaker” when he suspended Ores. Id. ¶¶ 23-27. Defendants’ motion to dismiss
targets both claims. They raise three core arguments: (1) Ores’s due-process rights
were not violated because he did have administrative remedies to challenge the
suspension; (2) Jones is entitled to qualified immunity against individual liability
for damages; and (3) Ores has failed to state a Monell claim against the Village. The
Court addresses each of these arguments in turn.
A. Due-Process Claim
Defendants frame their argument against Ores’s due-process claim as an
“exhaustion” issue, that is, the claim purportedly should fail because Ores failed to
exhaust his administrative remedies. See R. 17, Defs.’ Br. at 5-7. This argument is
based on a mistaken premise. In general, there is no “exhaustion” requirement for a
procedural due-process claim. Instead, there are two central questions that
comprise every due-process claim, and as applied here, they are: (1) whether Ores
was deprived of a protected property interest, and if so, (2) whether an adequate
post-deprivation remedy (or “process”) was available to him. See Price v. Bd. of
Educ. of the City of Chi., 755 F.3d 605, 607 (7th Cir. 2014); Leavell v. Ill. Dep’t of
4
Natural Res., 600 F.3d 798, 804-05 (7th Cir. 2010).4 If there was an adequate
remedy available, then his due-process claim would fail simply because an adequate
remedy was available, not because he failed to “exhaust” the remedy. Another way
to understand this point is to consider the following: even if Ores pursued an
available and adequate post-deprivation remedy—that is, he exhausted this other
remedy—he still would not have a due-process claim because, again, adequate
remedies were available. Whether he exhausted or not is neither here nor there. As
it turns out, however, there were not any post-deprivation remedies available to
Ores.
Defendants argue that Ores did have two remedies available to him: (1) an
appeal process under the Illinois Municipal Code and (2) the grievance process
under the Village’s collective bargaining agreement with Ores’s union. See Defs.’ Br.
at 5-8; see also Defs.’ Reply Br. at 4-5. But surprisingly (and perhaps unwittingly),
both the Municipal Code and the collective bargaining agreement place restrictions
on appeals from suspensions that exceed five days—and remember, Ores was
suspended for fifteen days.
The starting point is that the Illinois Municipal Code generally protects
certain municipal police officers (like Ores) from removal or discharge except for
“cause.” 65 ILCS 5/10-2.1-17 ¶ 1. But the Code then goes on to authorize municipal
police chiefs (like Jones) to suspend officers without pay for up to five days:
Nothing in this Section shall be construed to prevent . . . the chief of the
police department from suspending without pay a member of his department
4Defendants
do not seem to dispute that Ores had a property interest in not being
suspended for more than five days except for cause. See 65 ILCS 5/10-2.1-17.
5
for a period of not more than 5 calendar days, but he shall notify the board in
writing of such suspension. . . .
65 ILCS 5/10-2.1-17 ¶ 5 (emphasis added). In explaining the available appeal
procedure, the Code then states, “Any policeman . . . so suspended may appeal to the
board of fire and police commissioners for a review of the suspension within 5
calendar days after such suspension . . . .” Id. ¶ 6 (emphasis added). In an appeal to
the Board, the possible outcomes are that “the board may sustain the action of the
chief of the department, may reverse it with instructions that the [officer] receive
[the officer’s] pay for the period involved, or may suspend the officer for an
additional period of not more than 30 days or discharge [the officer], depending
upon the facts presented.” Id. Therefore, if Jones wanted to impose a suspension
without pay that was longer than five days, he was required to file a formal charge
with the Board of Fire and Police Commissioners. The Board would then review the
appeal and determine whether the charge was sustained and what the appropriate
punishment would be.
In their reply brief, Defendants concede that Jones did not have authority
under the Municipal Code to impose a suspension that exceeded five days. See Defs.’
Reply Br. at 4 (recognizing that “the 5-day suspension” is “what is statutorily
permitted by [the Code]”). Defendants nevertheless argue that Ores could have
appealed his suspension to the Board. See Defs.’ Br. at 5-6. On the face of the
statute, however, that was not an option for Ores. The appeals provision (which is
in the sixth paragraph of the pertinent section) says that any officer “so suspended”
may appeal—referring back to the suspensions described in the fifth paragraph,
6
namely, suspensions of up to five days without pay. 65 ILCS 5/10-2.1-17 ¶¶ 5-6. The
Code does not require (or even appear to allow) Ores to invoke the appeal process
for a suspension exceeding five days, and it also does not require the Board to hear
such an appeal. In short, if the suspension exceeds five days, as it did in this case,
the appeal provision in the Code is not even triggered. That seems odd because one
would think that a suspension of unauthorized length ought to be appealable
(without resorting to a federal due-process claim), but that is not how the statute
reads. Perhaps when the parties engage in discovery, it will be revealed that—
despite the text of the statute—the Board does hear appeals of unauthorized
suspensions, and that officers know this. That might be enough to demonstrate that
in fact there is an available post-deprivation remedy (an appeal to the Board). But
at this pleading stage of the litigation, Ores is entitled to factual inferences in his
favor.
The same is true of the collective bargaining agreement.5 In their reply,
Defendants argue that section 6.1 of the agreement “is unmistakably intended to
permit police officers of the Village, such as [Ores], to grieve ‘discipline imposed by
5Although
Ores does not refer to the collective bargaining agreement in his
complaint, the Court will still review the agreement in evaluating this motion to dismiss. A
collective bargaining agreement governs the employer-employee relationship as much as a
rule or regulation does, particularly where the Illinois Municipal Code authorizes a
collective bargaining agreement to be an alternative forum for dispute resolution. See 65
ILCS 5/10-2.1-17 ¶¶ 1, 5; cf. Rosenblum, 299 F.3d at 661-62 (reviewing an employment
agreement that was not attached to the plaintiff’s complaint).
Ores also objects that the collective bargaining agreement is unauthenticated. R. 19,
Pl.’s Resp. Br. at 5. Beyond this conclusory objection, however, Ores makes no attempt to
raise any doubts about the agreement’s authenticity. If Ores does challenge the
authenticity of the document—for example, if the excerpted portion of the agreement
attached to Defendants’ motion does not cover the relevant time period—then Ores may
flag the problem for the Court in a later motion.
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the Chief of Police.’” Defs.’ Reply Br. at 4. But Defendants argument is based on an
incomplete reading of that provision. In its entirety, that portion of section 6.1
states quite clearly that officers can only grieve “discipline imposed by the Chief of
Police for all matters up to and including suspensions of up to five (5) days.” R. 17-1,
Defs.’ Exh. B, CBA § 6.1 (emphasis added). The same section also states that “any
dispute or difference of opinion concerning a matter or issue subject to the
jurisdiction of the Board of Fire and Police Commissioners shall not be considered a
grievance under this Agreement.” Id. In short, the collective bargaining agreement
similarly limits officers’ suspension grievances to suspensions that are five days or
less. A grievance about a suspension that is longer than five days is not a
“grievance,” as defined by the agreement.
It might very well be true that a grievance challenging a fifteen-day
suspension would “in all likelihood” succeed. Defs.’ Reply Br. at 5. Here too, like
with the appeal option to the Board, discovery might reveal that Village officers
previously have grieved unauthorized suspensions, and that Ores knew he could
have done so.6 But this kind of factual speculation is not appropriate at the motionto-dismiss stage when the Court must draw all reasonable inferences in Ores’s
favor. See al-Kidd, 131 S. Ct. at 2079; Craig v. Rich Twp. High Sch. Dist. 227, 736
F.3d 1110, 1115 (7th Cir. 2013). And from the face of the complaint, the text of the
6Ores
alludes to having filed a grievance in his response brief, but there are no
allegations about a grievance in his complaint and it is not clear whether his grievance was
successful. See Pl.’s Resp. Br. at 7 (stating that Ores “tried to grieve” his suspension
(emphasis added)).
8
Municipal Code’s appeal provision, and the excerpts of the collective bargaining
agreement, there was no apparent method of review available to him.
In sum, confined to the complaint, and before discovery has occurred, it
appears that there were no post-deprivation procedures available to Ores. Having
allegedly received no process at all, Ores has stated a due-process claim against
Jones.
B. Qualified Immunity
Next, Defendants argue that Jones is entitled to qualified immunity. Defs.’
Br. at 9. Qualified immunity protects 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 have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield public officials from harassment, distraction,
and liability when they perform their duties reasonably.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). Put another way, the general purpose of qualified immunity is
“to provide government officials with the ability reasonably [to] anticipate when
their conduct may give rise to liability for damages.” Anderson v. Creighton, 483
U.S. 635, 646 (1987) (alteration in original) (internal quotation marks and citation
omitted).
Qualified immunity analysis comprises two parts: (1) whether the facts
alleged amount to a constitutional violation, and (2) whether the violation was
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clearly established at the time of the defendant’s conduct. Pearson, 555 U.S. at 236
(overruling the mandatory two-step sequence of Saucier v. Katz, 533 U.S. 194
(2001)). Courts have discretion to consider whether the violation was clearly
established before (or, in some cases, without) determining whether the conduct
amounts to a constitutional violation. Id. at 236-39.
It should be noted here, however, that “a complaint is generally not dismissed
under Rule 12(b)(6) on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d
648, 651 (7th Cir. 2001). “Rule 12(b)(6) is a mismatch for immunity and almost
always a bad ground for dismissal . . . [as] when defendants do assert immunity it is
essential to consider facts in addition to those in the complaint.” Id. at 652 (ellipsis
in original) (internal quotation marks and citation omitted). In spite of this
warning, Defendants’ qualified-immunity argument relies almost exclusively on
facts from the Jones affidavit, which, as already discussed, the Court will not
consider in reviewing this motion. See Defs.’ Br. at 9. Instead, based on the facts
alleged in the complaint, as well as from the face of the statute and the collective
bargaining agreement, a reasonable officer in Jones’s position would have known
that he was violating Ores’s due-process rights by suspending him without pay for
fifteen days without providing him notice and an opportunity to be heard. In fact, a
reasonable officer in Jones’s position would have known that the Chief of Police did
not even have the authority to suspend Ores for that long, without referral to the
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Board, unless the officer consented to the proposed suspension.7 The Court therefore
rejects Defendants’ qualified-immunity argument.
C. Monell Claim
Finally, Defendants argue that Ores’s Monell claim against the Village must
fail.8 See id. at 10. As a municipality, the Village of Dolton is liable under 42 U.S.C.
§ 1983 only for acts that it has officially sanctioned or ordered; Ores cannot rely
simply on a respondeat superior theory. Pembaur v. City of Cincinnati, 475 U.S. 469,
479-80 (1986); Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690-91
(1978). He must therefore also allege that the deprivation of his due-process rights
was caused by a municipal policy or custom. Kujawski v. Bd. of Commr’s, 183 F.3d
734, 737 (7th Cir. 1999). Unconstitutional policies or customs can take three forms:
(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a
widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to constitute a custom or
usage with the force of law; or (3) an allegation that the constitutional injury was
caused by a person with final policymaking authority. Rasche v. Vill. of Beecher, 336
F.3d 588, 597 (7th Cir. 2003).
7Even
if the Court did consider the Jones affidavit, it would confirm that Jones was
aware that he did not have the authority to impose a fifteen-day suspension. See R. 17-1,
Defs.’ Exh. A, Jones Aff. at 3 (admitting that Jones knew he did not have the authority to
impose the suspension and that he did not obtain written confirmation from Ores that Ores
agreed to the fifteen-day suspension).
8In their reply brief, Defendants failed to address any of the qualified-immunity or
Monell arguments that Ores raised in his response brief. The Court cautions Defendants
that failure to respond to an argument implies concession and generally results in a waiver
of any counterarguments on that point. See United States v. Farris, 532 F.3d 615, 619 (7th
Cir. 2000); MindGames, Inc. v. W. Publ’g Co., 218 F.3d 652, 659 (7th Cir. 2000); see also
Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir. 1994).
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Defendants recognize that Plaintiff has alleged that Jones was a final
“policymaker” for purposes of Monell liability, but Defendants then seem to ignore
that this allegation fits into the third Monell category of unconstitutional policies or
customs for which a municipality may be held liable. See Defs.’ Br. at 10. Indeed, as
alleged, Jones was the Chief of Police, and he was also the person who made the
final decision to suspend Ores for fifteen days. Compl. ¶¶ 3, 14. Under Monell, these
alleged facts are enough to support the proposition that Jones had final
policymaking authority. Again, on summary judgment, there could be more
evidence demonstrating that Jones was not the final policymaker for purposes of
the fifteen-day suspension. But at the motion-to-dismiss stage, Ores has alleged
sufficient facts to state a Monell claim against the Village.
IV. Conclusion
For the reasons stated above, Defendants’ motion to dismiss [R. 17] is denied.
The status hearing on August 27, 2014, remains in place. The parties should be
prepared to discuss how to move forward with this litigation, and the Court strongly
encourages the parties to reconsider settlement.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 25, 2014
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