Briscoe v. Village of Vernon Hills et al

Filing 41

MEMORANDUM Opinion and Order. Plaintiff's motion 19 is granted and defendants' motion 25 is denied. The judgment entered on May 25, 2016 18 is vacated. Plaintiff shall file an amended complaint by April 20, 2017. Status hearing set for April 26, 2017 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 3/29/2017. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN BRISCOE,
Plaintiff,
v.
VILLAGE OF VERNON HILLS, et. al.,
Defendants.

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Case No. 15 C 10761
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Before the Court is plaintiff’s motion to alter or amend judgment pursuant to Federal
Rule of Civil Procedure 59(e), or in the alternative for leave to file an amended complaint
pursuant to Rule 15(a)(2) [19] and defendants’ motion for Rule 11 sanctions [25]. For the
reasons set forth below, plaintiff’s motion is granted and defendants’ motion is denied.
BACKGROUND
In November 2015, plaintiff filed a seven-count complaint alleging violations of the
Americans with Disabilities Act (“ADA”) and the First Amendment as well as a conspiracy
claim and a Monell claim against his former employer, the Village of Vernon Hills, and
individuals in Village leadership roles. Defendants filed a motion to dismiss, which was granted
in May 2016. Judgment was entered that same day. After filing his motion to alter judgment,
plaintiff also filed a motion to disqualify the then-presiding judge, which was granted. The case
was reassigned to this Court in November 2016.
STANDARDS
“Once judgment has been entered, there is a presumption that the case is finished, and the
burden is on” the moving party “to show the court that there is good reason to set [the judgment]

aside.” Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009). “To prevail on a Rule 59(e)
motion to amend judgment, a party must clearly establish (1) that the court committed a manifest
error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Blue v.
Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012). A manifest error is the
‘“wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F.
Supp. 1063, 1069 (N.D. Ill. 1997)). A motion to alter judgment should not be used to “advance
arguments that could and should have been presented to the district court prior to the judgment.”
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013). “[A]fter a final judgment,
a plaintiff may amend a complaint under Rule 15(a) only with leave of the court after a motion
under Rule 59(e) or Rule 60(b) has been made and the judgment has been set aside or vacated.”
Figgie Int’l, Inc. v. Miller, 966 F.2d 1178, 1179 (7th Cir. 1992).
A court may impose Rule 11 sanctions if a motion is ‘“not well grounded in fact and is
not warranted by existing law or a good faith argument for the extension, modification, or
reversal of existing law.’” Cuna Mut. Ins. Soc. v. Office and Prof’l Emps. Int’l Union, Local 39,
443 F.3d 556, 560 (7th Cir. 2006) (quoting Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters, Local
731, 990 F.2d 957, 963 (7th Cir. 1993)). The Court must “undertake an objective inquiry into
whether the party or his counsel should have known that his position is groundless,” id., and also
“bear in mind that such sanctions are to be imposed sparingly,” Hartmarx Corp. v. Abboud, 326
F.3d 862, 867 (7th Cir. 2003).

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DISCUSSION
Plaintiff’s Rule 59(e) Motion
Plaintiff asserts that the court wrongly decided the motion to dismiss because it drew
inferences in favor of defendants and relied on factual assertions not contained in the record.
(Pl.’s Mem. at 3-7.)

Plaintiff asks to present additional factual allegations to support his

retaliation claims1 in an amended complaint and contends that he should have been given at least
one opportunity to amend his complaint before the action was dismissed.

(Id. at 7-8.)

Defendants counter that the court did not rely on facts not contained in the record and that the
allegations in the complaint support the court’s dismissal. (Defs.’ Resp. at 3.) Defendants argue
that it is not proper for plaintiff to be allowed “to reshape the facts in an attempt to fit the law”
and that he cannot point to a misapplication of the law or new evidence that would warrant
revisiting the court’s decision. (Id. at 3-4.) In his reply, plaintiff contends that defendants have
failed to address the arguments made in his motion. (Pl.’s Reply at 1.)
ADA Claims (Counts I-III)
In dismissing plaintiff’s ADA discrimination claim (Count I), the court noted that the
allegations in plaintiff’s “complaint make it clear that even after seeking treatment for his
injuries, he was no longer able to perform the essential functions for a Commander position even
with a reasonable accommodation.” Briscoe v. Vill. of Vernon Hills, No. 15 C 10761, 2016 WL
2997932, at *3 (N.D. Ill. May 25, 2016). (See Compl. ¶¶ 22, 25.) The court reasoned that
plaintiff was required to show that he was qualified to perform the essential functions of the job
with or without reasonable accommodations in order to state an ADA discrimination claim. Id.
Because plaintiff’s complaint specifically alleges that he could not perform the essential

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Plaintiff asserts that since he filed this lawsuit, the Village has filed two lawsuits against him that constitute
continued First Amendment retaliation. (Pl.’s Mem. at 9.)

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functions of the Commander position, the court properly dismissed plaintiff’s ADA
discrimination claim. See Roberts v. City of Chi., 817 F.3d 561, 565 (7th Cir. 2016) (to state an
ADA discrimination claim, “a plaintiff must show that: (1) he is disabled; (2) he is otherwise
qualified to perform the essential functions of the job with or without reasonable
accommodation; and (3) the adverse job action was caused by his disability”). Even if the court
made improper inferences about plaintiff’s compliance with orders to return to work, that factor
had no bearing on the determination of whether plaintiff alleged sufficient facts to state an ADA
discrimination claim, which he did not. See Volling v. Kurtz Paramedic Serv., Inc., Case No. 14cv-4423, 2015 WL 4197071, at *2 (N.D. Ill. July 10, 2015) (rejecting plaintiff’s claim that the
court made improper inferences in favor of the defendant and stating the “plaintiff still has the
burden to plead all elements of her claims”).
In dismissing plaintiff’s disability retaliation claim (Count II), the court stated that
plaintiff “specifically alleges in his complaint that he never asserted any ADA rights with the
Village.” Briscoe, 2016 WL 2997932, at *4. (See Compl. ¶¶ 37, 107.) The court also noted that
plaintiff filed his EEOC charge in January 2015, after the Village issued the disciplinary notice
in December 2014. Id. (Compl. ¶¶ 4, 66.) In order to state a claim for ADA retaliation, plaintiff
“must have engaged in a statutorily protected activity—in other words, he must have asserted his
rights under the ADA by either seeking an accommodation or raising a claim of discrimination
due to his disability.” Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 814-15 (7th
Cir. 2015). Based solely on allegations in the complaint, plaintiff did not engage in statutorilyprotected activity required to state an ADA retaliation claim, so the court properly dismissed it.
Plaintiff’s allegation that the court assumed an incorrect fact when it stated that plaintiff was
disciplined for violating the Village’s sick-leave policy rather than failing to submit a form to

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police department does not change the fact that plaintiff failed to allege a claim for ADA
retaliation. Similarly, plaintiff’s assertion that he was retaliated against for filing “line-of-duty
disability” and Public Safety Employee Benefits Act (“PSEBA”) claims do not affect his ADA
retaliation claim because they are not protected activity under the ADA. See Andrews v. City of
Chi., 836 F. Supp. 2d 696, 700 (N.D. Ill. 2011) (dismissing ADA retaliation claim for failure to
allege engagement in statutorily-protected activity).
Plaintiff does not contest the court’s dismissal of his unlawful medical examinations
claim under the ADA, 42 U.S.C. § 12112(d)(4)(A) (Count III). Accordingly, the Court will not
reconsider that dismissal.
First Amendment and Monell Claims (Counts IV-VI)
When the court dismissed plaintiff’s First Amendment retaliation claim (Count IV), it
held that plaintiff had not engaged in protected speech. Briscoe, 2016 WL 2997932, at *2. The
court reasoned that plaintiff’s speech was not protected because he was not speaking about a
matter of public concern, but rather was engaged in speech related to personal grievances with
the Village (worker’s compensation, line-of-duty disability, and PSEBA claims). Id. Plaintiff
asks the Court to “reconsider the law as it relates to first amendment actions and whether [his]
speech amounts to a matter of public concern.” (Pl.’s Mem. at 9.) ‘“For a public employee’s
speech to be protected under the First Amendment, the employee must show that (1) he made the
speech as a private citizen, (2) the speech addressed a matter of public concern, and (3) his
interest in expressing that speech was not outweighed by the state’s interests as an employer in
promoting effective and efficient public service.’” Kristofek v. Vill. of Orland Hills, 832 F.3d
785, 792 (7th Cir. 2016) (quoting Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013)).
“[A]lthough ‘a statement born of pure personal interest does not constitute a public concern, a

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mere personal aspect of the speaker’s motivation will not defeat the entire speech.’” Id. at 794
(quoting Miller v. Jones, 444 F.3d 929, 937 (7th Cir. 2006)).
In his complaint, plaintiff asserts that his protected activities were matters of public
concern and seems to suggest that is the case because the alleged retaliation was committed by
Village policymakers, including the police chief, president, manager, and finance director, who
“misuse[d] [their] authority.” (Compl. ¶¶ 119, 123-24, 145.) Plaintiff further alleges that
defendants have a practice of retaliating against individuals who seek disability benefits. (Id. ¶¶
100, 144.) In his response to the motion to dismiss, plaintiff also argued that his speech exposed
malfeasance in Village and police department management and is therefore presumably a matter
of public concern. (Pl.’s Resp. at 7.) Finally, in his Rule 59(e) motion, plaintiff asserts that his
claims were not solely of personal interest, but serve as an example of a “widespread practice of .
. . retaliating against police officers who suffer disabling injuries during their employment” and
that such conduct is a matter of public concern. (Pl.’s Mem. at 10-11.) While the Court does not
agree that the previously-assigned judge made an error of fact or law in dismissing this count, it
does conclude that plaintiff should have been given leave to amend his complaint, as discussed
below.
Because the Court dismissed the First Amendment retaliation claim, it also dismissed the
Monell (Count VI) and First Amendment conspiracy (Count V) claims. Briscoe, 2016 WL
2997932, at *3. There was no error in those dismissals. See Sallenger v. City of Springfield, 630
F.3d 499, 504 (7th Cir. 2010) (“[A] municipality cannot be liable under Monell when there is no
underlying constitutional violation by a municipal employee.”); see also Smith v. Gomez, 550
F.3d 613, 617 (7th Cir. 2008) (“[C]onspiracy is not an independent basis of liability in § 1983
actions.”).

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Civil Conspiracy Claim (Count VII)
The court dismissed this state-law claim, holding that it was barred by the Illinois Local
Governmental and Governmental Employees Tort Immunity Act and that plaintiff failed to
allege any independent cause of action. Briscoe, 2016 WL 2997932, at *4. Plaintiff contends
that there were numerous actions that caused him constitutional deprivations. (Pl.’s Mem. at 13.)
Regardless of what plaintiff now argues, his complaint included a threadbare recital of the
elements of a civil conspiracy claim and was properly dismissed.

See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (“[A] bare assertion of conspiracy will not suffice” to
withstand a motion to dismiss.).
Plaintiff’s Rule 15(a)(2) Motion
While plaintiff has not established that the prior court made manifest errors of law or fact,
this Court heeds Seventh Circuit decisions instructing district courts to allow plaintiffs to replead
deficient complaints, particularly when judgment is entered before plaintiff is given leave to
amend. See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. and N.W. Ind., 786 F.3d 510,
521 (7th Cir. 2015) (“When the district court has taken the unusual step of entering judgment at
the same time it dismisses the complaint, the court need not find other extraordinary
circumstances and must still apply the liberal standard for amending pleadings under Rule
15(a)(2).”); see also Bausch v. Stryker Corp., 630 F.3d 546, 549 (7th Cir. 2010) (“Even if the
original complaint had been defective, the district court abused its discretion by dismissing the
action with prejudice and denying [plaintiff] leave to file an amended complaint.”); see also
Volling, 2015 WL 4197071, at *2 (granting plaintiffs’ Rule 59(e) motion and allowing plaintiffs
to file an amended complaint, despite the fact that there had been no errors of fact or law).
Though defendants argue that plaintiff’s motion to amend should be denied because he

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has not attached a proposed amended complaint to his Rule 59(e) motion, plaintiff has suggested
how he would amend his complaint, at least as it relates to the First Amendment claims. (Pl.’s
Mem. at 9-12.) See Gonzalez-Koeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015) (finding that
the district court did not abuse its discretion in denying plaintiff leave to file a third amended
complaint when she did not provide a proposed amended complaint or explain how the third
amended complaint “would cure the deficiencies identified in her second amended complaint”)
(emphasis added). Because plaintiff had no opportunity to amend his complaint before the court
entered judgment and argues that there are additional facts related to his First Amendment claims
to be included in his forthcoming amendment, the Court grants his Rule 59(e) motion and gives
him leave to so amend.
Defendants’ Rule 11 Motion
Defendants argue that plaintiff was unreasonable in filing a motion to alter judgment.
(Defs.’ Mot. at 4.) Defendants further contend that plaintiff ignored dispositive authority, filed a
complaint not well-grounded in fact or law, and reiterated arguments and case law presented in
the motion to dismiss. (Id.) Defendants allege that plaintiff’s intent in filing is to force them to
pay the cost to defend frivolous motions. (Id. at 5.) Defendants state that they attempted to
resolve this issue before involving the Court, but because plaintiff persisted in this course, he and
his counsel should be sanctioned and ordered to pay defendants’ fees and costs pursuant to Rule
11. (Id.) In response plaintiff argues that defendants have not provided any examples of
arguments he recycled from the motion to dismiss in the motion for relief from judgment. (Pl.’s
Resp. at 1.)

Further, plaintiff contends that defendants’ motion for sanctions is itself

sanctionable conduct because it does not accurately reflect Seventh Circuit law and is being used
as an intimidation tactic. (Id. at 1, 3.) Alternatively, plaintiff argues that his motion was made in

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good faith and asserts that the court erred as a matter of law in dismissing his complaint. (Id. at
2.)
It is clear from these filings that opposing counsel have struggled with civility in this
litigation. However, the Court finds no evidence to support defendants’ allegation that plaintiff
filed his Rule 59(e) motion purely to force defendants to expend time and money defending
against plaintiff’s claims. The Court is unable to conclude that plaintiff brought the motion to
alter judgment in bad faith, and therefore denies defendants’ motion for sanctions.

See

Roszkowiak v. Elk Grove Vill., No. 15 C 5207, 2015 WL 9259891, at *4 (N.D. Ill. Dec. 18, 2015)
(denying defendants’ motion for Rule 11 sanctions and reasoning that “[j]ust because a claim is
not well-supported does not mean the attorney has pled false facts or legal theory”).
CONCLUSION
For the reasons set forth above, plaintiff’s motion [19] is granted and defendants’ motion
[25] is denied. The judgment entered on May 25, 2016 [18] is vacated. Plaintiff shall file an
amended complaint by April 20, 2017. Status hearing set for April 26, 2017 at 9:30 a.m.
SO ORDERED.

ENTERED: March 29, 2017

_________________________
JORGE L. ALONSO
United States District Judge

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