Snedeker v. Girot

Filing 44

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 8/28/2017. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT SNEDEKER,
Plaintiff,
v.
RICH GIROT, individually and in his
official capacity as the Chief of Police of
the City of Braidwood, and the
CITY OF BRAIDWOOD,

Case No. 16-cv-10907
Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Snedeker ran for Mayor of the City of Braidwood in 2014.
Defendant Rich Girot, Braidwood’s Chief of Police at the time, reviewed Plaintiff’s
background using a law enforcement database and filed an objection to Plaintiff’s
candidacy in light of Plaintiff’s extensive (and uncontroverted) criminal history.
Plaintiff subsequently withdrew from the race.
Plaintiff now brings two claims pursuant to 42 U.S.C. § 1983 against both
Girot and the City: Count 1, for violation of his right to equal protection under the
Fourteenth Amendment, and Count 2, for impermissible retaliation in violation of
his First Amendment rights. See generally [18] at 1-9. Currently pending before
the Court are separate motions to dismiss filed by the City and Girot. [23], [27].
For the reasons explained below, those motions are granted in part, without
prejudice, and denied in part.

I.

Background 1
Plaintiff has a long criminal history, including a guilty plea for the

manufacture or delivery of narcotics and a conviction for domestic battery. [23] at
4. He has also “been a longtime advocate of open government” and a public critic of
“numerous actions of the Defendant City of Braidwood.” [18] at 2.
Undeterred by his status as a convicted felon, Plaintiff initiated a campaign
for Mayor of Braidwood in December 2014. Id. at 3. Two days later Girot, in his
capacity as the City’s Chief of Police, ran an inquiry on a law enforcement database
regarding Plaintiff, which uncovered Plaintiff’s prior convictions. Id. Girot then
lodged a formal complaint opposing Plaintiff’s candidacy. Id. Unidentified “agents
and employees” of the City, with Girot’s “knowledge and authorization,” also used
the results of the database inquiry to “degrade, humiliate and insult the Plaintiff in
an open city council meeting.” Id. Snedeker subsequently withdrew from the race
in January 2015. Id.
In February 2015, Snedeker filed a complaint with the Illinois State Police
(ISP) regarding Girot’s conduct. Id. In March 2015, the ISP sent Snedeker a letter
in response. Id. The ISP confirmed that a database “inquiry was made on [his]
identifiers by the Braidwood Police Department on the date in question.” [18-1] at
1. The ISP, per its “policy and procedure,” then “requested that [the] Braidwood
Police Department conduct an internal investigation to determine the reason for the

This section is premised upon both the allegations of Plaintiff’s Amended Complaint [18], which are
taken as true for the purposes of resolving the present motions, and matters in the public record that
are subject to judicial notice. See Fed. R. Evid. 201.
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inquiry. Their investigation revealed that the inquiry was made for a legitimate
criminal justice purpose and as part of their regular practices.” Id.
This “legitimate criminal justice purpose” remains unidentified in the limited
record before the Court. Plaintiff’s Amended Complaint implicitly assumes that
this refers to his interactions with the City of Braidwood Police Department in
November 2014, when Plaintiff called “to complain about harassing phone calls he
was receiving.” [18] at 3; see also id. at 5 (“At all relevant times, it was unheard of,
and remains unheard of, for any citizen of Defendant City of Braidwood who calls
the police, as the victim,” to have a database investigation about “them almost a
month after the fact.”).
Unsatisfied with the disposition of his complaint to the ISP, Plaintiff initiated
this lawsuit in November 2016. [1] at 1.
II.

Legal Standard
The present motions simultaneously contend that Plaintiff’s case must be

dismissed for lack of subject matter jurisdiction (pursuant to Federal Rule of Civil
Procedure 12(b)(1)) and for failure to state a claim for which relief can be granted
(pursuant to Federal Rule of Civil Procedure 12(b)(6)). Because the City’s “Rule
12(b)(1) motion to dismiss for lack of Article III standing accepts as true the facts
alleged” in the Amended Complaint, the standards governing both motions are
substantively identical. Halperin v. Int'l Web Servs., LLC, 70 F. Supp. 3d 893, 896
(N.D. Ill. 2014).

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In both instances, the Court must accept the Amended Complaint’s wellpleaded factual allegations as true, with all reasonable inferences drawn in the
Plaintiff’s favor. Id. The Court’s consideration is also limited to allegations set
forth in the Amended Complaint, documents that are attached to the Amended
Complaint or referred to in it, and “information that is properly subject to judicial
notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
III.

Analysis
A.

Plaintiff Has Alleged a Sufficiently Definite Injury

The City first argues that Plaintiff lacks standing, and therefore, this Court
must dismiss both of his claims. [23] at 2-5.
Since this argument involves a jurisdictional prerequisite, the Court
considers it first. Halperin, 70 F. Supp. 3d at 897. To show standing, Plaintiff must
“establish an ‘injury in fact’ caused by the defendant and redressable by the court.”
J.P. Morgan Chase Bank, N.A. v. McDonald, 760 F.3d 646, 650 (7th Cir. 2014); see
also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The injury-in-fact
“showing is not meant to be a difficult one, particularly at the pleading stage.”
McDonald, 760 F.3d at 650. Here, the City claims that Plaintiff did not suffer an
injury-in-fact because he, as a felon, was not eligible to hold municipal office under
Illinois law. See 65 ILCS 5/3.1-10-5(b); see also [23] at *5 (arguing that Plaintiff
lacks standing because his disqualification was “not caused by the Defendants’
conduct”).

Plaintiff’s claims, however, assert injuries beyond disqualification.

Specifically, Plaintiff has competently alleged that Girot: (1) impermissibly

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searched his name on the law enforcement database system; (2) orchestrated his
humiliation at a city council meeting; and (3) filed a formal objection to his
candidacy for mayor. [18] at 3. These are sufficiently definite injuries to establish
standing, especially “at the pleading stage.” McDonald, 760 F.3d at 650; see also
Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 925 (7th Cir. 2008)
(“[T]he injury-in-fact necessary for standing need not be large, an identifiable trifle
will suffice.”) (internal quotation marks omitted); Youth Alive v. Hauppauge Sch.
Dist., No. 08-cv-1068, 2012 WL 4891561, at *3 (E.D.N.Y. Oct. 15, 2012) (“Although
the injury-in-fact requirement is not as stringent in Equal Protection cases, a
plaintiff must still establish that she suffered some sort of identifiable harm . . . .”).
B.

Municipal Liability

The City also argues that Plaintiff’s claims fail pursuant to Monell v. New
York City Department of Social Services, 436 U.S. 658, 690 (1978). Monell allows a
party to bring a claim against a municipality for a federal civil rights violation
under 42 U.S.C. § 1983, which is precisely what Plaintiff has done here.
To succeed on such a claim, however, Plaintiff must show that an official
municipal policy caused his constitutional injury. See Lewis v. Cnty. of Cook, No.
10-cv-1313, 2011 WL 839753, at *13 (N.D. Ill. Feb. 24, 2011). An official policy may
be established via three different methods of proof: (1) an express policy; (2) a
widespread practice that is so entrenched and well-known that it carries the force of
policy; or (3) the actions of an individual who possesses the authority to make final

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policy decisions on behalf of the municipality. See Rice ex rel. Rice v. Corr. Med.
Servs., 675 F.3d 650, 675 (7th Cir. 2012).
Here, Plaintiff concedes that the first two methods are inapplicable, but
contends that Girot “was the final policymaker” at the City Police Department. [18]
at 2; see also [31] at 7 (“[I]n the case at bar where there exist[s] no widespread
policy and only a single action of deprivation occurring . . . .”). As such, this Court
focuses upon Monell’s third method of proof.
The City insists that Girot cannot be a final policymaker because his actions
were subject to review by the City Council. [23] at 8; see also City of Braidwood
Ordinance 50-37 (“The chief of the police department may make or prescribe such
rules and regulations for the conduct and guidance of the members of the
department as he shall deem advisable. Such rules, when approved by the council,
shall be binding on such members.”); City of Braidwood Ordinance 2-146 (generally
prohibiting political activity while on duty); 20 Ill. Adm. Code 1240.80 (“[Database
inquiries] shall not be used for personal purposes.”).
The City’s argument is premised upon Palka v. City of Chicago, which held
that because a municipal employee’s “decisions were subject to review and
implementation by a higher authority, he cannot be a final policymaker for
purposes of municipal § 1983 liability.” 662 F.3d 428, 435 (7th Cir. 2011). Palka,
however, is of limited utility here. As a preliminary matter, Palka concerned a
motion for summary judgment, not a motion to dismiss. Id. Also, the municipal

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employee in Palka was a supervisor at the Chicago Police Academy, not the Chief of
Police. Id. at 430.
Sailsbery v. Village of Sauk Village, No. 15-cv-10564, 2016 WL 4701446 (N.D.
Ill. Sept. 8, 2016), is more instructive. The plaintiff in Sailsbery alleged that the
local mayor and public safety director had retaliated against her and discriminated
against her in violation of Section 1983. Id. at *1-2. The defendants moved to
dismiss, arguing that since they “had to seek permission and review from
superiors,” they “could not have had final policymaking authority” for Monell
purposes. Id. at *9. The court rejected this contention, finding, among other things,
that defendant’s “position as Public Safety Director, with direct oversight of the
entire police department, plausibly suggest[s] that [he] could exercise final
policymaking authority” with respect to the alleged unconstitutional behavior. Id.
Ultimately, “summary judgment is a better stage to determine these questions”
regarding the “scope of [defendants’] delegated authority.” Id.
Given the facts in this case, Sailsbery controls. Whether Girot possessed the
requisite policymaking authority to extend Monell liability here is a question best
answered with the benefit of a full record. The Court accordingly rejects the City’s
Monell argument and turns to the substance of Plaintiff’s claims.
C.

Count 1: Equal Protection

Plaintiff has brought a “class of one” equal protection claim, which means he
must competently allege that: “(1) a state actor has intentionally treated him
differently than others similarly situated; and (2) there is no rational basis for the

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difference in treatment.” See Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860
F.3d 489, 492-93 (7th Cir. 2017).
1.

“Similarly Situated”

To qualify as “similarly situated,” Plaintiff “and his comparators (those
alleged to have been treated more favorably) must be identical or directly
comparable in all material respects.” Pinedo v. City of Chicago, No. 10-cv- 6370,
2011 WL 829305, at *2 (N.D. Ill. Mar. 4, 2011) (internal quotation marks omitted).
While this comparison is “usually” a question of fact, “dismissal at the pleading
stage is appropriate if the plaintiff fails to allege facts tending to show that [he] was
similarly situated to any of the comparators.”

Id. (internal quotation marks

omitted). The “similarly situated” requirement is particularly “critical to a class-ofone equal protection claim, since the purpose of entertaining such a claim is not to
constitutionalize all tort law.” Id. (internal quotation marks omitted).
Plaintiff has failed to clear this preliminary hurdle.
Plaintiff has not identified any specific comparators.

[23] at 5.

The general allusions to

comparators in the Amended Complaint are also facially deficient:
Plaintiff was similarly situated to other individuals
involved in interactions with DEFENDANT GIROT and
other
DEFENDANT
CITY
OF
BRAIDWOOD
agents/employees including, but not limited to, police
investigations,
seizures
and/or
arrests
wherein
DEFENDANT GIROT, with the approval and knowledge
of DEFENDANT CITY OF BRAIDWOOD did not
fabricate evidence or provide a false rationale against
those individuals . . . .
Over the past ten years, numerous individuals have run
for public office in the CITY OF BRAIDWOOD. In no

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In fact,

other case was a candidate for public office subjected to a
[database] inquiry by the Chief of Police.
[18] at 5-6. See Muczynski v. Lieblick, No. 10-cv-81, 2011 WL 613573, at *4-7 (N.D.
Ill. Feb.11, 2011) (dismissing “class of one” equal protection claim, as plaintiff’s
allegation that he was “similarly situated” to “other individuals with whom the
Defendant Officers had an investigatory basis to communicate who did not have
false evidence generated against them and were not arrested or prosecuted”
amounted to an insufficient, “conclusory” legal statement).
Given Plaintiff’s failure to identify a single comparator, Defendants’ motions
to dismiss are granted with respect to Count 1. This dismissal, however, is without
prejudice. The Court will permit Plaintiff a final opportunity to identify adequate
comparators, to the extent he can do so within the strictures of Rule 11.
2.

“Rational Basis”

The Court further notes that Count 1, as alleged, does not satisfy the more
searching “rational basis” inquiry in “class of one” equal protection claims. See D.B.
ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013) (To “get past a Rule
12(b)(6) motion to dismiss on a class of one equal protection claim, a plaintiff must
allege facts sufficient to overcome the presumption of rationality that applies to
government classifications.”) (internal quotation marks omitted); see also Miller v.
City of Monona, 784 F.3d 1113, 1121 (7th Cir. 2015) (“[E]ven at the pleadings stage,
all it takes to defeat a class-of-one claim is a conceivable rational basis for the
difference in treatment.”) (internal quotation marks omitted).

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The Court declines to resolve this question now, because Defendants did not
fully develop this argument in their briefs, and because this Court has already
dismissed Count 1 in light of Plaintiff’s inability to identify adequate comparators.
The Court nevertheless raises the issue here with the expectation that, should
Plaintiff elect to re-plead his equal protection claim, he must also address this
deficiency or face a potential dismissal with prejudice.
D.

Count 2: Retaliation

To plead a First Amendment retaliation claim, Plaintiff must competently
allege that: (1) his speech was constitutionally protected; (2) he suffered a
deprivation likely to deter free speech; and (3) his speech was at least a motivating
factor in Defendants’ actions. See Campbell v. City of Chicago, No. 16-cv-6000, 2017
WL 878730, at *2 (N.D. Ill. Mar. 6, 2017).
1.

Plaintiff’s Protected Speech

The City argues that Plaintiff “was not engaged in activity protected by the
First Amendment because he was not qualified to run for Mayor in light of his
criminal history.” [23] at 5. Plaintiff alleges, however, that as a longtime “advocate
of open government,” he “had been publicly critical of numerous actions” taken by
the City, and he had provided related “information to the local press.” [18] at 2-3.
These allegations, construed in the light most favorable to Plaintiff, suggest that
Plaintiff complained about the operation of his municipal government to the local
media. This is a paradigmatic example of protected speech, and the Court rejects
any suggestion to the contrary. See Wis. Right to Life State Political Action Comm.

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v. Barland, 664 F.3d 139, 152 (7th Cir. 2011) (“The free flow of political speech ‘is
central to the meaning and purpose of the First Amendment.”) (quoting Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 329 (2010)); Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 400 (2000) (“The Court’s opinion does not question the
constitutional importance of political speech or that its protection lies at the heart of
the First Amendment.

Nor does it question the need for particularly careful,

precise, and independent judicial review where, as here, that protection is at
issue.”).
2.

Plaintiff’s Deprivation

Finally, Girot claims that Count 2 fails because “Plaintiff did not suffer a
deprivation (removal from the ballot) due to the Defendant’s alleged acts but due to
his felony criminal record.” [37] at 6. This argument reflects an unduly narrow
reading of the Amended Complaint, as explained below.
To determine whether an alleged deprivation is sufficiently serious to support
a claim for retaliation, the Court asks whether the deprivation would deter “a
person of ordinary firmness” from exercising their First Amendment rights. Bridges
v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). This is not a high threshold—“[a]ny
deprivation under color of law that is likely to deter the exercise of free speech”
qualifies. See Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000). Indeed, “even
something as trivial as making fun of an employee for bringing a birthday cake to
the office to celebrate another employee’s birthday” could represent a sufficient
deprivation, so long as “the circumstances are such” that this behavior would serve

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as “an effective deterrent to the exercise of a fragile liberty.” Id. (internal citations
omitted).
Plaintiff contends that he made various public complaints about the City, and
in response, Girot ran a database search on Plaintiff, caused other City employees
to embarrass Plaintiff with those results at a city council meeting, and filed a
formal objection to Plaintiff’s candidacy. See supra at 2-3. At this early stage of the
proceedings, such alleged deprivations could “deter a person of ordinary firmness”
from exercising their First Amendment rights, and they are accordingly sufficient
for the purposes of stating a claim for retaliation.

This is true even if Girot’s

actions, had they been “taken for a different reason, might otherwise have been
proper.” Benson v. Allphin, 544 F. Supp. 464, 467 (N.D. Ill. 1982); see also Bridges,
557 F.3d at 552 (“Even though some of these allegations would likely not be
actionable in and of themselves, if the acts were taken in retaliation for the exercise
of a constitutionally protected right, then they are actionable under § 1983.”).

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IV.

Conclusion
Both the City of Braidwood’s Motion to Dismiss Plaintiff’s First Amended

Complaint [23] and Former Chief Rich Girot’s Motion to Dismiss Plaintiff’s First
Amended Complaint [27] are granted in part and denied in part.

Count 1,

Plaintiff’s “class of one” equal protection claim, is dismissed without prejudice.
Count 2, Plaintiff’s retaliation claim, remains pending against both defendants.
Date: August 28, 2017
ENTERED:

____________________________
John Robert Blakey
United States District Judge

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