Cannici v. Village of Melrose Park, Illinois et al

Filing 30

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/27/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN CANNICI,
Plaintiff,

v.

VILLAGE OF MELROSE PARK,
ILLINOIS, BOARD OF FIRE AND
POLICE COMMISSIONERS OF
MELROSE PARK, ILLINOIS,
MICHAEL CAPUTO, MARK RAUZI
and PASQUALE ESPOSITO,
Members of the Board of Fire
and Police Commissioners of
Melrose Park, RICHARD
BELTRAME, Melrose Park Fire
Chief, and RONALD SERPICO,
Mayor of Melrose Park,
individually and in their
official capacities,
Defendants.

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No. 16 C 9863

MEMORANDUM OPINION AND ORDER
Plaintiff John Cannici (“Cannici”) brings this suit
alleging that his employment as a firefighter for the Village of
Melrose Park (“the Village”) was improperly terminated for
violating the Village’s residency ordinance. In addition to the
Village, Cannici has sued the Village’s Board of Fire and Police
Commissioners (“the Board”); individual Board members Michael
Caputo, Mark Rauzi, and Pasquale Esposito (Caputo, Rauzi, and
Esposito together, “the Board Members”); the Village’s Fire

Chief, Richard Beltrame (“Beltrame”); and the Village’s Mayor,
Ronald Serpico (“Serpico”). Cannici’s complaint seeks review of
his termination under Illinois’ Administrative Review Act (“the
Act”), 735 ILCS 5/3-101 et seq. (Count I). He also asserts
claims under 42 U.S.C. § 1983, alleging violation of his right
to due process (Count II) and to equal protection (Count III).
Cannici originally filed suit in the Circuit Court of Cook
County, Illinois. The defendants removed the case to this court
and now have filed several separate motions to dismiss Counts II
and III of the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.1 For the reasons below, I grant
the defendants’ motions and remand the remaining claim for
administrative review to the Circuit Court of Cook County.2
I.
In deciding a 12(b)(6) motion, I take all allegations in
the complaint as true. See, e.g., Lavalais v. Village of Melrose
Park, 734 F.3d 629, 632 (7th Cir. 2013). Cannici’s complaint
alleges that he joined the Melrose Park Fire Department in 2000.
1

Joint motions to dismiss Counts II and III have been filed by
the Board and Board Members and by the Village and Beltrame.
Serpico has moved to dismiss only Count III, since that is the
only claim asserted against him. For purposes of this motion, it
is unnecessary to distinguish between the various defendants.
For simplicity, therefore, I use “defendants” to refer to them
collectively.
2

Cannici does not oppose remand of Count I if Counts II and III
are dismissed. See Pl.’s Resp. to Board and Commissioners’
Motion to Dismiss, at 2 n.2.
2

In 2008, he and his wife purchased a second home in Orland Park.
According to Cannici, they purchased the home so that their
oldest child could attend school in Orland Park, thereby making
it unnecessary for Cannici’s parents, who provided daycare for
the children, to commute between Orland Park and Melrose Park.
Cannici’s wife and children moved to the Orland Park home, but
Cannici continued to live in the Melrose Park residence. The
family spent time together on the weekends.
This arrangement remained in place until 2013, when Cannici
agreed to rent a portion of the Melrose Park home to a family
experiencing financial hardship. Although the family occupied
only part of the home, Cannici began staying at the Orland Park
house with his wife and children. He insists, however, that he
continued to treat the Melrose Park home as his residence (by,
among other things, continuing to pay taxes on the home, keeping
his personal property there, and receiving his mail there).
In May 2016, Cannici was “summoned to appear at an
interrogation concerning his residency.” Compl. ¶ 23. On
learning of this, the family living in the Melrose Park home
voluntarily moved out and Cannici moved back in. In June 2016,
Fire Chief Beltrame filed a “Statement of Charges” alleging that
Cannici had violated the Village’s residency ordinance and

3

requesting a hearing before the Board of Commissioners.3
According to Cannici, prior to the hearing, the Board’s counsel
engaged in ex parte communications with the prosecuting
attorney. Specifically, Cannici alleges that the Board’s counsel
notified the prosecuting attorney of a status hearing in the
case without giving notice to Cannici’s counsel. In addition,
Cannici asserts that the Board’s Counsel sent the prosecuting
attorney case law addressing issues relevant to Cannici’s case.
When Cannici became aware of the communications, he filed a
motion to disqualify the prosecuting attorney and to reappoint
the Board’s counsel. The motion was summarily denied.
The hearing on the charges against Cannici was held before
the Board on August 4, 2016. Cannici submitted a brief at the
hearing, arguing that since his residency in the Village had
previously been established, he was not required under Illinois
law to maintain a physical presence in Melrose Park, so long as
he had no intention of abandoning his residency. Cannici also
testified at the hearing, explaining the circumstances
3

The ordinance provides:
Each and every officer and employee of the village,
unless exempted by this chapter, must be a resident of
the village as that term has been defined herein. Each
and every officer must maintain resident status during
his or her term of office. Each and every employee
must maintain resident status during his or her period
of employment.

Village of Melrose Park Code of Ordinances § 2.52.020.
4

surrounding his decision to rent his home, and stating that he
never had any intention of abandoning his Melrose Park
residency. Neither party presented any other evidence at the
hearing.
On August 24, 2016, the Board issued an order on the
charges against Cannici. After reviewing the evidence in the
case, the order concluded that Cannici had violated the
residency ordinance and that his employment would be terminated.
Cannici maintains that the Board’s decision mischaracterized his
testimony, disregarded the evidence, and misapplied the law. In
addition, he contends that although several other Melrose Park
firefighters had living arrangements similar to his own, only he
was charged with violating the residency ordinance.
II.
“A motion to dismiss under Rule 12(b)(6) does not test the
merits of a claim; rather, it tests the sufficiency of the
complaint.” Galvin v. Illinois Republican Party, 130 F. Supp. 3d
1187, 1190 (N.D. Ill. 2015) (citing Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990)). I consider the defendants’
arguments for dismissal of Cannici’s § 1983 due process and
equal protection claims in turn.
A.

Due Process
To state a procedural due process claim under § 1983, “a

plaintiff must allege (1) deprivation of a protected interest,
5

and (2) insufficient procedural protections surrounding that
deprivation.” Michalowicz v. Vill. of Bedford Park, 528 F.3d
530, 534 (7th Cir. 2008). The defendants do not dispute that
Cannici has a protected interest in his employment. At issue is
only the sufficiency of the procedural protections surrounding
his termination.
Procedural due process claims are of two types: “(a) claims
based on established state procedures and (b) claims based on
random, unauthorized acts by state employees.” Leavell v.
Illinois Dep’t of Nat. Res., 600 F.3d 798, 804 (7th Cir. 2010)
(quotation marks omitted). Cannici does not allege that his due
process rights were violated by an established state procedure.
Rather, he claims that the defendants failed to implement or
abide by the procedures in a fair manner. Hence, Cannici’s due
process claim is based on the “random and unauthorized actions
of the state officials ... in failing to follow the requirements
of existing law.” Michalowicz, 528 F.3d at 535 (quotation marks
omitted).
Because random and unauthorized misconduct is “inherently
unpredictable, the state’s obligation under the Due Process
Clause [in such cases] is to provide sufficient remedies after
its occurrence, rather than to prevent it from happening.” Id.
Thus, “for a plaintiff alleging a procedural due process claim
based on random and unauthorized conduct of a state actor, the
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plaintiff must either avail herself of state post-deprivation
remedies or demonstrate that the available remedies are
inadequate.” Leavell, 600 F.3d at 805 (quotation marks omitted).
Here, Illinois’ Administrative Review Act provides Cannici
with a post-deprivation remedy. Cannici did not previously seek
review under the Act. (Rather, he seeks to do so in the instant
action). Nor has he alleged that review under the Act would be
an inadequate remedial measure. Courts have in fact repeatedly
held that the Administrative Review Act provides a remedy for
the sort of due process violations alleged here. See, e.g.,
Michalowicz, 528 F.3d at 536-37; Leavell, 600 F.3d at 806 (due
process claim failed because adequate review was available in
state court); Stachowski v. Town of Cicero, 425 F.3d 1075, 1078
(7th Cir. 2005) (“Stachowski could have sought administrative
review of the Board’s final decision under the Illinois
Administrative Review Act.... Stachowski’s failure to pursue the
procedures available to him does not give rise to a due process
claim.”).
Rather than addressing the state’s post-deprivation
remedies, Cannici contests the adequacy of the pre-deprivation
protections afforded him. He argues that based on the alleged ex
parte communications between the Board’s attorney and the
prosecuting attorney, together with what he characterizes as the
Board’s one-sided decision, he was denied a meaningful
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opportunity to be heard. It is firmly established, however, that
“when adequate post-termination protections exist, a
pretermination hearing need only provide an initial check
against mistaken decisions -- essentially, a determination of
whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action.”
Michalowicz, 528 F.3d at 536–37 (quotation marks omitted). These
requirements are satisfied here: prior to the termination
hearing, Cannici was notified of the charges against him and he
had an opportunity to file a motion challenging the alleged ex
parte communications between the prosecuting attorney and the
Board’s counsel. At the hearing, moreover, Cannici was
represented by counsel, he had an opportunity to testify, and he
submitted briefing on pertinent legal issues.
In short, because Cannici has neither availed himself of
post-deprivation remedies nor alleged the inadequacy of those
remedies, he has failed to state a procedural due process claim
under § 1983.
B.

Equal Protection
Cannici’s equal protection claim is based on the

defendants’ alleged selective enforcement of the Village’s
residency ordinance. He argues that several other members of the
Village’s fire department have not maintained residences in
Melrose Park but, unlike him, were never charged with violating
8

the ordinance. Cannici does not allege that he was treated
unequally as a result of his membership in a protected class.
Instead, his equal protection claim is based on a “class-of-one”
theory. To prevail on a class-of-one equal protection claim,
Cannici “must show that [he] was intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Black Earth
Meat Mkt., LLC v. Vill. of Black Earth, 834 F.3d 841, 851 (7th
Cir. 2016) (quotation marks omitted).
Cannici’s equal protection claim is foreclosed by the
Supreme Court’s decision in Engquist v. Oregon Department of
Agriculture, 553 U.S. 591 (2008), which expressly held that the
“class-of-one theory of equal protection has no place in the
public employment context.” Id. at 594 (quotation marks
omitted). The Court explained that the class-of-one theory
presupposes the “existence of a clear standard against which
departures, even for a single plaintiff, could be readily
assessed.” Id. at 602. As the Court pointed out, however,
decisions in the employment context “are quite often subjective
and individualized, resting on a wide array of factors that are
difficult to articulate and quantify.” Id. at 604. While the
Constitution forbids the government from treating citizens
differently based on subjective, individualized considerations
when it acts as legislator or regulator, the government is not
9

subject to the same constraints when acting as proprietor or
employer. Id. at 604. Without the ability to make these sorts of
distinctions, the Court observed, governmental entities would be
unable to carry about their functions. Id. at 607-08.
Because Cannici challenges his termination as a public
employee, his class-of-one equal protection claim is precluded
by Engquist. Cannici argues that Engquist’s holding is limited
to employment decisions that are highly individualized and
discretionary in nature. He contends that Engquist does not
apply in his case because the Board’s decision was confined to
the narrow question of whether he had violated the residency
ordinance. But the Seventh Circuit has made clear that “[u]nder
Engquist, the prohibition on class-of-one claims in the public
employment context is categorical.” Geinosky v. City of Chicago,
675 F.3d 743, 747 (7th Cir. 2012).4 Courts have consistently
rejected attempts to carve out exceptions to Engquist’s holding
in the employment context, see, e.g., Burge v. Rogers, No. 13 C

4

Cannici cites the court’s remark in Abcarian v. McDonald, 617
F.3d 931 (7th Cir. 2010), that Engquist “has limited
applicability when a decisionmaker’s discretion is circumscribed
by constitutional or statutory provisions.” Id. at 939. In that
passage, however, the court was referring to Engquist’s
application in settings other than employment. To illustrate its
point, Abcarian cited Hanes v. Zurick, 578 F.3d 491 (7th Cir.
2009), which involved a claim alleging that police officers had
violated the plaintiff’s equal protection rights by selectively
singling him out for arrest.

10

6399, 2014 WL 2118739, at *1 (N.D. Ill. May 21, 2014)
(“Plaintiffs argue that Engquist allowed the possibility that
public employees may bring class-of-one equal protection claims
under extraordinary circumstances, but that argument cannot be
reconciled with Geinosky.”), and have specifically rejected such
arguments based on selective enforcement of residency
requirements, see, e.g., Reiff v. Calumet City, No. 10 C 5486,
2014 WL 4460457, at *3 (N.D. Ill. Sept. 10, 2014); Langmead v.
Monroe Cty. Office of Sheriff, No. 11-CV-6003-CJS, 2013 WL
3759958, at *5 (W.D.N.Y. July 15, 2013).
In sum, Cannici’s class-of-one equal protection claim is
barred by Engquist. Accordingly, Count III of his complaint is
dismissed.5
III.
For the reasons discussed above, I dismiss Counts II and
III of Cannici’s complaint and remand his remaining claim for
administrative review to the Circuit Court of Cook County.

Elaine E. Bucklo
United States District Judge
Dated: January 27, 2017
5

The Board Members additionally argue that they are entitled to
quasi-judicial immunity. Because I conclude that Cannici’s
claims fail on the merits, I do not reach this issue.
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