Wheeler v. Piazza et al

Filing 46

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 2/13/2018. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAUL WHEELER,
Plaintiff,
v.
PETER PIAZZA, et al.,
Defendants.

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Case No. 16-cv-3861
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
In his First Amended Complaint, Plaintiff Paul Wheeler (“Plaintiff”) brings claims
against Defendants Peter Piazza, Sydney Roberts, Donnelle Grygiel, and Elmer Garza
(“Defendants”) for violation of the First Amendment, violation of Plaintiff’s due process rights,
and conspiracy pursuant to 42 U.S.C. § 1983, as well as violations of state law. Currently before
the Court is Defendants’ motion [33] to dismiss Plaintiff’s First Amended Complaint for failure
to state a claim. For the reasons explained below, Defendants’ motion [33] is granted. Counts I
through VII are dismissed without prejudice. To the extent that Plaintiff brings claims against
Defendants in their official capacities for monetary damages, these claims are dismissed with
prejudice. Plaintiff is given until March 13, 2018 to file an amended complaint consistent with
this opinion, if Plaintiff believes that he can overcome the deficiencies identified below. This
case is set for further status hearing on March 20, 2018 at 9:00 a.m.
I.

Background1
Plaintiff is a law enforcement officer for the Illinois Secretary of State Department of

Police (“ISOS Police”) and has been employed in that capacity since May 2010. [26, ¶ 5.]
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For purposes of the motion to dismiss, the Court accepts as true all of Plaintiff’s well-pleaded factual
allegations and draws all reasonable inferences in Plaintiff’s favor. Killingsworth v. HSBC Bank Nev.,
N.A., 507 F.3d 614, 618 (7th Cir. 2007).

According to Plaintiff, during all relevant times alleged in the First Amended Complaint,
Defendant Sydney Roberts was the Director of the ISOS Police; Defendant Peter Piazza was the
Deputy Director of the ISOS Police; Defendant Donnelle Grygiel was a Captain of the ISOS
Police; and Defendant Elmer Garza was an Acting Sergeant or Sergeant of the ISOS Police. [Id.,
¶¶ 6–9.] All Defendants are named in the First Amended Complaint in both their individual and
official capacities. [Id.]
Plaintiff alleges that, beginning in October 2013 and continuing through June 2014,
Plaintiff met with the Office of the Inspector General (“OIG”), members of the Federal Bureau
of Investigation, and an investigator for the DuPage County State’s Attorney’s Division of
Investigation to report alleged misconduct and abuse by ISOS Police personnel. [Id., ¶¶ 11–12.]
Plaintiff reported several general allegations of misconduct; Plaintiff also reported several
allegations specific to Defendant Piazza (including that Defendant Piazza ordered Plaintiff to
violate the due process rights of a criminal defendant and was often absent from duty without
explanation), and specific to Defendant Garza (that Defendant Garza threatened Plaintiff when
Plaintiff learned of potential perjury by an individual with close ties to an Illinois politician). [Id.
¶ 14.] The OIG investigated the alleged misconduct that Plaintiff reported and, at some point
during the investigation, Defendants became aware of these reports. [Id., ¶ 15.]
Plaintiff alleges that Defendants met and conspired to retaliate against Plaintiff for
reporting this alleged misconduct.

Specifically, Defendants agreed to place Plaintiff on

administrative leave in order to conduct a sham investigation into a March 20, 2015 traffic stop
of a stopped vehicle conducted by Plaintiff (the “traffic stop”). [Id., ¶¶ 19–20.] During the
traffic stop, Plaintiff lawfully arrested the stopped vehicle’s passenger and charged that
passenger with several criminal violations. [Id., ¶ 17.] Plaintiff also advised the vehicle’s driver

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that he would obtain a warrant for her arrest, but Defendant Piazza later ordered Plaintiff not to
do so. [Id., ¶¶ 17–18.]
The ISOS Police subsequently initiated an investigation into Plaintiff’s conduct during
the traffic stop. On March 30, 2015, Plaintiff was placed on administrative leave pending the
outcome of this investigation. [Id., ¶ 21.] When he was placed on leave, Plaintiff was ordered to
surrender his law enforcement credentials and state-owned supplies, thus stripping him of his
law-enforcement authority, and his access to Secretary of State premises was limited. [Id.]
Plaintiff was initially informed that he would be on administrative leave for a maximum of 45
days. [Id.] However, beginning in May 2015, Defendants sent Plaintiff several letters delaying
the expiration of his leave, and Plaintiff did not return to work until November 2, 2015. [Id.,
¶¶ 27, 29–31, 36, 39–41.]
Plaintiff alleges that this investigation into the traffic stop was a sham investigation that
Defendants agreed to conduct in retaliation for Plaintiff’s reports of misconduct: Defendants did
not speak to the driver or passenger of the stopped vehicle before placing him on administrative
leave, and neither individual made a citizen’s complaint against Plaintiff before Plaintiff was
placed on leave. [Id., ¶ 22.] Furthermore, Defendant Grygiel ordered another ISOS Police
employee to contact the driver and the passenger from the traffic stop to solicit a citizen’s
complaint after Plaintiff had already been placed on leave, and the passenger signed such a
complaint weeks after Plaintiff’s leave had started. [Id., ¶¶ 24, 26.] Defendants also directed the
Kane County State’s Attorney to dismiss the pending charges against the lawfully-arrested
passenger on March 26, 2015. [Id., ¶ 25.]
While still on leave, Plaintiff was interrogated by Lt. James Murphy of the ISOS Police
as part of the investigation into the traffic stop. [Id., ¶ 28.] This interrogation took place on May

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13, 2015, at the direction of Defendants, and it was recorded. [Id.] In August 2015, Lt. Murphy
informed Plaintiff that he would need to conduct another interrogation of Plaintiff due to issues
with the recording and transcript of the first one in May. [Id., ¶ 32.] Another, substantially
similar, interrogation of Plaintiff by Lt. Murphy took place in September 2015. [Id., ¶ 38.]
Plaintiff requested a transcript of his May 2015 interrogation on multiple occasions. Defendants
initially refused to provide Plaintiff with a transcript of whatever portion of this first
interrogation was salvageable, but, after Plaintiff filed a grievance related to this issue,
Defendant Roberts said that a copy of the transcript would be provided. [Id., ¶¶ 33–34, 37.]
Plaintiff alleges that Defendants’ conduct in connection with these interrogations violated several
provisions of the Illinois Uniform Peace Officer’s Disciplinary Act. [Id., ¶¶ 33, 61.]
Plaintiff’s leave ended on October 30, 2015, and Plaintiff reported for duty on November
2, 2015. At the time he reported for duty, Plaintiff was informed via letter from Defendant
Roberts of the findings from the ISOS Police investigation into the traffic stop. [Id., ¶ 42.]
Plaintiff was notified that, based on these findings, he would be suspended for 18 days. [Id.]
Plaintiff filed a grievance relating to his suspension, which was still pending at the time the First
Amended Complaint was filed. [Id., ¶¶ 43–44.] Plaintiff served his suspension between January
4, 2016, and January 28, 2016. [Id., ¶ 45.] When Plaintiff returned to work, he was subject to
certain restrictions that similarly situated law enforcement officers were not subject to.
Specifically, he was assigned to permanent desk duty and ordered not to take any enforcement
actions except in emergencies. [Id.]
Plaintiff thereafter filed this action against Defendants in March 2016.

[See 1.]

Defendants moved to dismiss this initial complaint for failure to state a claim, [see 16], which
was stricken without prejudice after Plaintiff filed an amended complaint, [see 26]. In the First

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Amended Complaint, Plaintiff brings Section 1983 claims against all Defendants in their
individual and official capacities for using a sham investigation to unlawfully retaliate against
Plaintiff for engaging in protected speech, in violation of the First Amendment (Count I); for
conducting a sham and suspect investigation into the traffic stop, thus denying Plaintiff his right
to due process under Illinois law and the Fourteenth Amendment (Count II); and conspiracy to
deprive him of his constitutional rights (Count III). Plaintiff also brings claims against all
Defendants for violation of the Illinois State Officials and Employees Ethics Act, 5 Ill. Comp.
Stat. 430/15-10 (Count IV); for violation of the Illinois Whistleblower Act, 740 Ill. Comp. Stat.
174/1 et seq. (Count V); for state law conspiracy (Count VI); and for indemnification (Count
VII). Currently before the Court is Defendants’ motion [33] to dismiss all claims in the First
Amended Complaint for failure to state a claim.
II.

Legal Standard
To survive a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss for

failure to state a claim upon which relief can be granted, 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 Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second,
the factual allegations in the complaint must be sufficient to raise the possibility of relief above
the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.
2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or a
‘formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim

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under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff’s well-pleaded factual
allegations and draws all reasonable inferences in Plaintiff’s favor. Killingsworth v. HSBC Bank
Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).
III.

Analysis
Defendants move to dismiss all claims in the First Amended Complaint, arguing that each

of Plaintiff’s claims fails as a matter of law.
A.

Federal Claims
1.

Official Capacity Claims (All Counts)

As a threshold matter, the Court will address Plaintiff’s Section 1983 claims against
Defendants in their official capacities. In the First Amended Complaint, Plaintiff states that he is
suing all Defendants in both their individual and official capacities. [26, ¶¶ 6–9.] “Actions
against individual defendants in their official capacities are treated as suits brought against the
government entity itself.” Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991)). Although such official capacity actions are permissible under
Section 1983 when injunctive relief is requested, the Eleventh Amendment “bars federal courts
from ordering the state to disburse funds to a private party for retroactive damages.”
McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1051 (7th Cir. 2013). Plaintiff seeks only
monetary damages and fees, not injunctive relief, from each Defendant. [26, ¶¶ 58, 63, 70, 74,
78, 83.] This relief is unavailable in an official capacity Section 1983 suit. Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 & n.10 (1989). Therefore, Plaintiff’s claims against each
Defendant in his or her official capacity for monetary damages must be dismissed with prejudice.

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See Brown v. Budz, 398 F.3d 904, 918 (7th Cir. 2005) (affirming dismissal of claims for
monetary damages from defendants acting in their official capacity as barred by the Eleventh
Amendment); Berwick Grain Co., Inc. v. Ill. Dep’t of Agriculture, 116 F.3d 231, 233 n.1 (7th
Cir. 1997) (defendants named in their official capacities not subject to suit under Section 1983
insofar as plaintiff requests damages). The Court will consider Plaintiff’s claims against each
Defendant in his or her individual capacity only.
2.

Violation of the First Amendment (Count I)

Count I alleges that Defendants violated Plaintiff’s First Amendment right to free speech.
Specifically, Count I alleges that Defendants placed Plaintiff on administrative leave and
subsequently conducted a sham investigation of the traffic stop as a pretext to conceal their own
wrongful conduct and to retaliate against Plaintiff for engaging in the protected speech of
reporting misconduct to the OIG, the FBI, and the Kane County State’s Attorneys Office. [26,
¶¶ 52–58.]
Public employees, such as Plaintiff, have a right in certain circumstances to speak as
citizens on matters of public concern. Gross v. Town of Cicero, Ill., 619 F.3d 697, 703 (7th Cir.
2010) (citing Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)).

The First and Fourteenth

Amendment prohibit a state government entity from retaliating against an employee engaged in
such protected speech. Id. at 703–04. To make out a prima facie case for First Amendment
retaliation under Section 1983, Plaintiff must demonstrate that (1) his speech was
constitutionally protected; (2) he has suffered a deprivation that is likely to deter free speech; and
(3) his speech was “at least a motivating factor in the employer’s actions.”

Kidwell v.

Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012) (quoting Massey v. Johnson, 457 F.3d 711, 716
(7th Cir. 2006)); Graber v. Clarke, 763 F.3d 888, 894–95 (7th Cir. 2014). While making a prima

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facie case is an evidentiary requirement, not a pleading standard, “this requirement lends
guidance to the Court’s determination whether a plaintiff has sufficiently alleged his First
Amendment retaliation claim” at the motion to dismiss stage. Sroga v. Preckwinkle, 2017 WL
345549, at *3 (N.D. Ill. Jan. 24, 2017) (internal alterations omitted) (quoting Schmidt v. Vill. of
Glenwood, 2015 WL 3918952, at *3 (N.D. Ill. June 24, 2015)).
Defendants do not challenge Plaintiff’s allegations on the first two elements and instead
focus on the third; they argue that, even if Plaintiff can meet these first two elements, Plaintiff
cannot establish that his protected speech was a motivating factor for the Defendants’
investigation into the traffic stop. In order to establish this causal link, Plaintiff can rely on
either direct or circumstantial evidence. Massey, 457 F.3d at 717; see also Coleman v. Donahoe,
667 F.3d 835, 860 (7th Cir. 2012) (discussing similar causation analysis in relation to a Title VII
retaliation claim).2 “Circumstantial evidence may include suspicious timing, ambiguous oral or
written statements, or behavior towards or comments directed at other employees in the protected
group.” Kidwell, 679 F.3d at 966 (quoting Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 350
(7th Cir. 2009)). This circumstantial evidence must show “that the protected activity and the
adverse action are not wholly unrelated.” Id. (citation omitted). Suspicious timing between the
protected activity and the adverse action may, on its own, be enough to raise an inference of
causation between the protected speech and the alleged retaliation: but, in order to rely only on
suspicious timing to raise this inference, a plaintiff must demonstrate that the adverse
employment action “follows close on the heels of protected expression” and that the person who
imposed the adverse action knew of that protected expression. Id. (quoting Lalvani v. Cook Cty.,
269 F.3d 785, 790 (7th Cir. 2001)). There is no set time limit for determining what “close on the
2

The prima facie case for Title VII retaliation claims is the same as it is for First Amendment retaliation
claims. See Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 642 (7th Cir. 2013).

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heels” means, but the Seventh Circuit allows “no more than a few days to elapse” between the
protected activity and the adverse employment action to raise an inference of causation. Kidwell,
679 F.3d at 966–67 (collecting cases and concluding that gaps of five weeks and two months
between protected speech and allegedly retaliatory employment actions “militate[d] against
allowing an inference of causation based on suspicious timing”); see also Argyropoulos v. City of
Alton, 539 F.3d 724, 734 (7th Cir. 2008) (seven-week interval was not sufficient, without more,
to demonstrate causation for Title VII retaliation claim); Longstreet v. Ill. Dep’t of Corr., 276
F.3d 379, 384 (7th Cir. 2002) (four-month gap was insufficient to establish retaliation); Weiler v.
Vill. of Oak Lawn, 2016 WL 397293, at *5 (N.D. Ill. Feb. 2, 2016) (four-month interval “is too
long under governing Seventh Circuit authority to support a reasonable inference of causation
without other evidence”); Ghiles v. City of Chi. Heights, 2016 WL 561897, at *2 (N.D. Ill. Feb.
12, 2016) (at the motion to dismiss stage, a six-month delay was “too remote” to link the
protected speech and allegedly retaliatory conduct); Diadenko v. Folino, 890 F. Supp. 2d 975,
989–90 (N.D. Ill. 2012) (gap of two months was too speculative to support retaliation). Cf.
Kinney v. Anglin, 889 F. Supp. 2d 1101, 1118 (C.D. Ill. 2012) (plaintiff alleging that defendants
learned of protected speech five days before adverse employment action stated prima facie case
for First Amendment retaliation).
Plaintiff’s First Amendment retaliation claim in Count I must be dismissed because he
has failed to plausibly allege that his reporting of alleged misconduct to the OIG and other
authorities was at least a motivating factor for Defendants’ placing of Plaintiff on administrative
leave and their subsequent investigation of the traffic stop. Plaintiff alleges in his First Amended
Complaint that he made his reports of alleged misconduct from October 2013 through June 2014,
and that Defendants retaliated against him for these reports in March 2015 by placing him on

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leave and initiating a sham investigation. [26, ¶¶ 11, 15, 19–20.] The nine-month gap between
the speech and the alleged retaliation is too large under Seventh Circuit precedent to sufficiently
state, without more, a retaliation claim, even at the motion to dismiss stage. See Carlson v. CSX
Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014) (“[A] retaliation claim can indeed be so barebones that a lengthy time period between the protected activity and the alleged retaliation will
make any causal connection between the two implausible.”); see also Brownlee v. Catholic
Charities of the Archdiocese of Chi., 2017 WL 770997, at *7 (N.D. Ill. Feb. 28, 2017)
(dismissing Title VII retaliation claim because well-pleaded facts did not plausibly give rise to
the inference of a causal connection between employee’s grievance and the allegedly retaliatory
conduct); Ghiles, 2016 WL 561897, at *2 (no claim for First Amendment retaliation because
time gap, with no other evidence, was too large to plausibly support claim); Schlessinger v. Chi.
Housing Auth., 2012 WL 5520848, at *8 (N.D. Ill. Nov. 13, 2012) (dismissing First Amendment
retaliation claim because two-year time gap “defeats any inference that Defendants acted in
retaliation” for the plaintiff’s protected speech).
Plaintiff argues that, at the motion to dismiss stage, he merely needs to “give enough
details about the subject-matter of the case to present a story that holds together.” Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). And it is true that suspicious timing is not an
element that Plaintiff must prove, especially at this stage of the case. See Carlson, 758 F.3d at
828–29 (reversing dismissal of Title VII retaliation claim because plaintiff had plausibly alleged
an ongoing campaign of retaliation, sufficient to state a claim, despite five-month gap between
protected behavior and discharge); see also McCarragher v. Ditton, 2017 WL 2180436, at *8
(N.D. Ill. May 18, 2017) (refusing to dismiss First Amendment retaliation claim because
“without discovery, it is premature to conclude that the timing of [defendant’s] decisions was

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definitively benign”); Gracia v. SigmaTron Int’l, Inc., 244 F. Supp. 3d 762, 769 (N.D. Ill. 2017)
(denying motion to dismiss Title VII retaliation claim as premature because the timing
“support[ed] a plausible inference” of causation at that stage of the case).
But Plaintiff has not presented a story that “holds together” on his retaliation claim.
Plaintiff alleges that, at some point during the OIG investigation into his reports of misconduct,
Defendants “became aware” of these reports. [26, ¶ 15.] But there is nothing at all in Plaintiff’s
factual allegations that raises an inference that Defendants became aware of these reports “close
on the heels” of the traffic stop. Kidwell, 679 F.3d at 966. Plaintiff argues that the exact date on
which Defendants did learn of Plaintiff’s reporting will be revealed through discovery, and that it
is too early to determine the context surrounding Defendants’ actions to affirmatively say that
they were not suspicious. [37, at 4.] But Plaintiff only speculates as to when Defendants learned
of his misconduct reports to the authorities and whether it was close in time to the initiation of
the traffic stop investigation. And Plaintiff alleges no facts from which the Court can infer that
Defendants only learned of the speech in 2015, or that Defendants engaged in a pattern of
retaliation stretching back in time to when Plaintiff initially made these reports—the only
sustained pattern of potential retaliation alleged in the First Amended Complaint begins with the
sham investigation in March 2015, followed by the delays in the conclusion of that investigation.
Without any factual allegations to support this inference of causation, the Court cannot make it.3
See Brownlee, 2017 WL 770997, at *7; Ghiles, 2016 WL 561897, at *2 (“The six-month delay is
3

In their reply brief, Defendants make certain references to the timing of the OIG’s investigation, and the
report of that investigation, which they argue affirmatively demonstrate that Defendants learned of
Plaintiff’s reports in June 2014 at the latest. [42, at 3 n.2]. However, the report of the investigation is not
attached to or referenced in the First Amended Complaint (or to Defendants’ briefing). A Rule 12(b)(6)
motion must be decided only “based on the complaint, documents attached to the complaint, documents
that are critical to the complaint and referred to in it, and information that is subject to proper judicial
notice.” Santangelo v. Comcast Corp., 162 F. Supp. 3d 691, 702 (N.D. Ill. 2016) (internal quotation
marks and citation omitted). Because this report is not attached to, or referenced in, the First Amended
Complaint, the Court does not rely on Defendants’ representations in this opinion.

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too remote to link Ghiles’s unsuccessful campaign * * * and his alleged suspension[.]”); see also
Garner v. City of Country Club Hills, Ill., 2012 WL 3017966, at *2–3 (N.D. Ill. July 23, 2012)
(denying motion to dismiss retaliation claim where complaint pled facts beyond suspicious
circumstances and timing and, therefore, the “inference that Plaintiff asks the Court to draw is
reasonable at the motion to dismiss stage”).
Plaintiff also argues that his retaliation allegations are not limited to the suspicious timing
of his speech and the traffic stop investigation. [37, at 4.] As further support for his First
Amendment retaliation claim, Plaintiff points to his allegation that Defendant Garza threatened
him when he learned that an offender may have committed perjury. [26, ¶ 14.] But this
allegation does not support Plaintiff’s retaliation claim. Plaintiff does not allege that Garza made
this threat because of, or at all in relation to, Plaintiff’s reporting of misconduct; rather, Plaintiff
alleges that this threat is one example of the misconduct that Plaintiff was reporting to the OIG in
2013–2014. [Id.] The Court can discern no further allegations in the First Amended Complaint,
beyond the timing of Plaintiff’s reporting and the subsequent traffic stop investigation, that
plausibly support Plaintiff’s claim of retaliation.
Therefore, Count I of the First Amended Complaint is dismissed without prejudice.
3.

Violation of Due Process (Count II)

Count II alleges that Defendants violated Plaintiff’s right to due process of law. Plaintiff
specifically alleges that Defendants violated his right to due process under Illinois state law and
the Fourteenth Amendment by placing him on administrative leave in order to conduct a sham
investigation of the traffic stop to cover up their misconduct, and to retaliate against Plaintiff for
reporting that misconduct. [26, ¶¶ 59–63.]

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Procedural due process imposes constraints on government actions which deprive an
individual of “liberty” or “property” interests within the meaning of the Fourteenth
Amendment’s Due Process Clause. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To
state a claim for a violation of procedural due process, Plaintiff must allege (1) a cognizable
property interest; (2) a deprivation of that property interest; and (3) a denial of due process.
Price v. Bd. of Educ. of City of Chi., 755 F.3d 605, 607 (7th Cir. 2014) (quoting Khan v. Bland,
630 F.3d 519, 527 (7th Cir. 2010)); see also Michalowicz v. Vill. of Bedford Park, 528 F.3d 530,
534 (7th Cir. 2008) (plaintiff must allege “a deprivation of a protected interest” and “insufficient
procedural protections surrounding the deprivation”).
Plaintiff’s claim fails at the first step because he has not sufficiently identified a source
for the property interest he claims to have. Property interests are not created by the Constitution
but are instead derived from independent sources, such as state law. Johnson v. City of Fort
Wayne, Ind., 91 F.3d 922, 943 (7th Cir. 1996).

Plaintiff alleges that he was placed on

administrative leave in violation of his due process rights: at the broadest level, then, Plaintiff is
claiming to have a protectable property interest in his continued employment with the ISOS
Police. Because Plaintiff was employed in Illinois, the Court looks to Illinois law to determine
whether he had a protected property interest in his employment. Moss v. Martin, 473 F.3d 694,
700 (7th Cir. 2007). Under Illinois law, a person has a property interest in his job where he has a
legitimate expectation of continued employment based on a legitimate claim of entitlement.
Covell v. Menkis, 595 F.3d 673, 676 (7th Cir. 2010). “To show a legitimate expectation of
continued employment, a plaintiff must show a specific ordinance, state law, contract or
understanding limiting the ability of the state or state entity to discharge him.” Moss, 473 F.3d at
700 (citation and internal quotation marks omitted).

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To support his claim of a property interest in his position as an ISOS Police officer, the
only state law on which Plaintiff relies is the Illinois Uniform Peace Officers’ Disciplinary Act
(IUPODA), 50 Ill. Comp. Stat. 725/1 et seq. [See 26, ¶¶ 61–62.] The IUPODA lays out
procedures to be followed in conducting interrogations of Illinois peace officers. See 50 Ill.
Comp. Stat. 725/3.1–11. But a procedural statute such as the IUPODA does not establish
property interests that are protected under the Fourteenth Amendment’s Due Process Clause.
Miyler v. Vill. of E. Galesburg, 512 F.3d 896, 898 (7th Cir. 2008). In fact, the Seventh Circuit
has specifically held that the IUPODA does not create a property interest in continued
employment sufficient to invoke the protection of the Due Process Clause.4 Cain v. Larson, 879
F.2d 1424, 1426–27 (7th Cir. 1989); see also May v. Vill. of Glendale Heights, 2005 WL 327060,
at *5 (N.D. Ill. Feb. 7, 2005) (“[T]he only applicable [I]UPODA provisions are procedural in
nature, which plaintiff cannot rely upon to assert a constitutionally protected property interest.”);
Reyes v. Rockford Park Dist., 2003 WL 21698437, at *1 (N.D. Ill. July 18, 2003) (due process
claim dismissed where plaintiff’s only support for a property interest in continued employment
as a police officer was the IUPODA); Beres v. Vill. of Huntley, Ill., 1994 WL 97742, at *7 (N.D.
Ill. Mar. 25, 1994) (“[P]laintiff cannot rely on procedural guarantees in [the IUPODA] to assert a
constitutionally protected property interest.”). While there might be other provisions of Illinois
state law on which Plaintiff may rely in order to sufficiently allege a property interest in
continued employment, Plaintiff has not identified them. As such, Plaintiff’s due process claim

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The Seventh Circuit has noted that the IUPODA does contain one substantive provision that would
create such a property interest. See Cain v. Larson, 879 F.2d 1424, 1427 (7th Cir. 1989). This provision
provides that “[n]o officer shall be discharged, disciplined, demoted, denied promotion or seniority,
transferred, reassigned or otherwise discriminated against in regard to his or her employment * * * by
reason of his or her exercise of the rights granted by this Act.” 50 Ill. Comp. Stat. 725/7. Plaintiff has
neither cited to this provision nor claimed that he was placed on leave because he exercised his rights
under the IUPODA. Thus, this provision of the IUPODA does not apply to Plaintiff’s due process claim
in Count II.

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must be dismissed on that basis.5 See Bant v. Bd. of Trustees of Univ. of Ill., 2006 WL 91327, at
*3–4 (C.D. Ill. Jan. 12, 2006); Reyes, 2003 WL 21698437, at *1.
Moreover, even if Plaintiff had sufficiently pled a property interest in his continued
employment with the ISOS Police, Plaintiff has not sufficiently pled that he was deprived of that
interest. Plaintiff claims that he was placed on administrative leave in violation of his due
process rights. [See 26, ¶¶ 60–62.] But the only deprivation that he alleges in connection with
this administrative leave is the deprivation of his “law enforcement credentials,” his state-owned
supplies, and his “law enforcement authority.” [Id., ¶¶ 21, 27, 29–31, 36.] Plaintiff has no
property interest in the “purely dignitary or otherwise nonpecuniary dimensions of employment,”
the deprivation of which does not implicate due process concerns. Swick v. City of Chi., 11 F.3d
85, 87 (7th Cir. 1993) (no deprivation of a property interest where plaintiff police officer placed
on involuntary sick leave was required to turn in his badge and gun, and was forbidden from
exercising the powers of a police officer, but had alleged no loss of pecuniary benefits). Plaintiff
does not allege that he suffered any pecuniary losses during his administrative leave. Therefore,
Plaintiff’s allegations regarding his administrative leave do not implicate due process concerns.6

5

Plaintiff cites Velazquez v. Office of the Ill. Sec’y of State, 2011 WL 6257298, at *5 (N.D. Ill. Dec. 14,
2011), to support his claimed property interest in his position as an ISOS Police officer. [37, at 5.] But
Velazquez does not rely on or cite to the IUPODA as the basis for this property right, and instead
references a different statute. Velazquez, 2011 WL 6257298, at *5 (citing provision of the Secretary of
State Merit Employment Code). Plaintiff has not mentioned that statute, or any other statute besides the
IUPODA, in either his First Amended Complaint or in his briefing. Even if the Court were inclined to
simply rely on the same statute in Velazquez and assume that Plaintiff has a property interest in his
position based on it, it is ultimately irrelevant to the disposition of this motion. As further discussed,
Plaintiff has not alleged that he has been deprived of his position, even assuming he has a protected
property interest in it.

6

Although the First Amended Complaint does not address whether Plaintiff’s leave was paid or unpaid,
Defendants assert in their briefs that Plaintiff was paid throughout his administrative leave. [34, at 5 n.3.]
Plaintiff does not dispute this in his opposition. The Court need not consider this assertion though
because, as discussed above, Plaintiff’s First Amended Complaint does not allege that he suffered any
pecuniary losses from his administrative leave that would implicate the Due Process Clause. See Palka v.

15

Plaintiff’s First Amended Complaint also alleges that, once he returned to duty and
served his 18-day suspension, he was assigned to permanent desk duty and ordered not to take
any law enforcement actions except in emergencies. [26, ¶¶ 45–46.] These reductions in his
duties do not appear to be part of Plaintiff’s due process claim. [Id., ¶¶ 59–63.] To the extent
that Plaintiff is attempting to rely on these allegations in Count II, they only refer to the
“nonpecuniary” dimensions of his employment as an ISOS police officer and do not state a claim
for violation of due process. Swick, 11 F.3d at 87; see also Deen v. Darosa, 414 F.3d 731, 734
(7th Cir. 2005) (citations omitted) (“[A] job action that causes no pecuniary loss whatsoever does
not implicate the Constitution.”).
The First Amended Complaint further references Plaintiff’s 18-day suspension from the
ISOS Police, and that a grievance regarding this suspension is pending. [26, ¶ 44.] Count II
does not allege that Plaintiff’s suspension is a basis for Plaintiff’s due process claim, [see id.,
¶¶ 59–63], and therefore his allegations regarding this suspension also do not warrant a different
result on his due process claim. To the extent that Plaintiff alleges that his 18-day suspension
also violated his right to due process, this claim appears to be premature because the First
Amended Complaint states that a grievance is pending relating to this suspension. There are no
allegations regarding the procedures for this grievance that would form a basis for a due process
claim at this juncture. See Cushing v. City of Chi., 3 F.3d 1156, 1164 (7th Cir. 1993) (“[T]he
existence of a state remedy can play a role in determining whether an individual has stated a
claim for a deprivation of due process.”). If Plaintiff believes he has a basis to challenge his

Shelton, 623 F.3d 447, 452–53 (7th Cir. 2010) (due process claim dismissed where plaintiff had not
alleged any direct or indirect economic consequences of his suspension).

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suspension and/or the procedure to adjudicate his grievance, he may do so in an amended
complaint.7
Therefore, because Plaintiff has failed to state a claim for violation of due process, Count
II must be dismissed. This dismissal is without prejudice.
4.

Section 1983 Conspiracy (Count III)

In Count III, Plaintiff alleges that Defendants conspired to deprive him of his
constitutional rights by agreeing amongst themselves to develop a pretextual reason for placing
Plaintiff on administrative leave. [26, ¶¶ 64–70.] Conspiracy is not itself an independent basis
of liability under Section 1983. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); see also
Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982) (“Section 1983 does not * * * punish
conspiracy; an actual denial of a civil right is necessary before a cause of action arises.”). In
order to state a claim for conspiracy under Section 1983, Plaintiff must show that “(1) the
individuals reached an agreement to deprive him of his constitutional rights, and (2) overt acts in
furtherance actually deprived him of those rights.” Wilson v. Baptiste, 2016 WL 521000, at *9
(N.D. Ill. Feb. 10, 2016) (citing Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015)).
Where there is no underlying constitutional deprivation, there is no Section 1983 conspiracy
claim. Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000); see also Ellis v. City of
Chi., 2016 WL 212489, at *10 (N.D. Ill. Jan. 19, 2016) (dismissing Section 1983 conspiracy
claim where plaintiff had not sufficiently alleged any underlying constitutional violations); Hill
v. City of Chi., 2009 WL 174994, at *9 (N.D. Ill. Jan. 26, 2009) (“[I]f a plaintiff fails to prove an
underlying constitutional injury, any attendant conspiracy claim necessarily fails.”). Because
7

Defendants indicate in their reply brief that an arbitration regarding Plaintiff’s grievance has occurred
and argue that Plaintiff will not be able to amend his complaint to include allegations regarding this
procedure. [See 42, at 7–8.] As with Defendants’ other representations regarding the details of Plaintiff’s
leave, this arbitration is not referenced in the First Amended Complaint, and the Court therefore will not
address Defendants’ arguments on this issue.

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Plaintiff has not stated a claim for an underlying constitutional violation in Counts I or II, his
Section 1983 conspiracy claim must also be dismissed.8 This dismissal is without prejudice.
B.

State Law Claims

With the granting of Defendants’ motion to dismiss the three federal claims over which it
has original jurisdiction, the Court addresses whether to retain jurisdiction over the remaining
state law claims, Counts IV–VII. See 28 U.S.C. § 1367(c)(3). The Seventh Circuit consistently
has stated that “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.” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); Alonzi v. Budget
Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco Petroleum Additives Co., 6
F.3d 1176, 1182 (7th Cir. 1993).

Finding no justification for departing from that “usual

practice”9 in this case, Plaintiff’s state law claims are dismissed without prejudice. See In re
Repository Techs., Inc., 601 F.3d 710, 724–25 (7th Cir. 2010); 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.”).

8

Even if Plaintiff had sufficiently pled an underlying constitutional violation, all Defendants are public
employees amenable to suit under Section 1983 directly, “which means that a conspiracy claim has no
role to play.” Scott v. City of Chi., 619 F. App’x 548, 548 (7th Cir. 2015) (citing Fairley v. Andrews, 578
F.3d 518, 526 (7th Cir. 2009)).

9

In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251–53 (7th Cir. 1994), the Seventh Circuit noted that
there occasionally are “unusual cases in which the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point to a federal
decision of the state-law claims on the merits.” The first example that the Court discussed occurs “when
the statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state
court.” Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one
year from the dismissal on jurisdictional grounds of state law claims in federal court in which to re-file
those claims in state court. 735 Ill. Comp. Stat. 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th
Cir. 2008). Dismissal without prejudice also is appropriate here because substantial judicial resources
have not been committed to the state law counts of Plaintiff’s complaint. Wright, 29 F.3d at 1251.

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IV.

Conclusion
For the reasons explained above, Defendants’ motion [33] is granted. Counts I through

VII are dismissed without prejudice.

To the extent that Plaintiff brings claims against

Defendants in their official capacities for monetary damages, these claims are dismissed with
prejudice. Plaintiff is given until March 13, 2018 to file an amended complaint consistent with
this opinion, if Plaintiff believes that he can overcome the deficiencies identified below. This
case is set for further status hearing on March 20, 2018 at 9:00 a.m.

Date: February 13, 2018

____________________________
Robert M. Dow, Jr.
United States District Judge

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