Lavite v. Dunstan et al
Filing
110
ORDER, granting in part denying in part 61 MOTION to Dismiss for Failure to State a Claim filed by Madison County Illinois Sheriff's Department, John D Lakin, denying 62 MOTION to Dismiss filed by Thomas Gibbons, Alan J Dunstan, Madison County Illinois, Joseph D Parente, and denying 66 MOTION to Strike. The Court directs the Clerk of Court to terminate Madison County Sheriff's Department as a defendant. Signed by Judge David R. Herndon on 3/29/2018. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRADLEY A. LAVITE,
Plaintiff,
v.
ALAN J. DUNSTAN,
JOSEPH D. PARENTE,
JOHN D. LAKIN,
THE MADISON COUNTY SHERIFF’S DEPARTMENT,
THOMAS GIBBONS, AND
MADISON COUNTY, ILLINOIS,
Defendants.
No. 16-cv-00882-DRH-RJD
MEMORANDUM and ORDER
HERNDON, District Judge:
I.
Introduction
Before the Court are two motions to dismiss plaintiff Bradley Lavite’s
(“plaintiff” or “Lavite”) First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 56).
First, defendants John D. Lakin and the Madison County Sheriff’s
Department seek dismissal on the grounds that (1) the suit is duplicative, (2) the
suit is barred by the prohibition against claim splitting, (3) the Madison County
Sheriff’s Department is an improper party, (4) the suit fails to state a Section
1983 claim, and (5) the suit fails to plead plausible First Amendment retaliation
claims (Counts I and II) or Due Process violations (Counts VI and VII). (Doc. 61).
Page 1 of 24
Second, defendants Alan J. Dunstan, Joseph D. Parente, Thomas D.
Gibbons, and Madison County, Illinois seek dismissal on numerous grounds,
including that (1) the suit is duplicative, (2) the suit is barred by the prohibition
against claim splitting, (3) the suit is barred by the Rooker-Feldman doctrine, (4)
the suit fails to plead plausible First Amendment claims (Counts I, II, VI, and VII)
or Due Process violations (Count III) and fails to give the defendants fair notice of
the allegedly wrongful acts committed by each defendant, (5) the Court should
decline to exercise supplemental jurisdiction over the plaintiff’s sole state law
claim (Count VIII), and (6) the suit fails to plead Monell liability against
defendants Gibbons, Parente, and Dunstan in their official and individual
capacities. (Doc. 62).
Plaintiff filed a response opposing defendants’ motions to dismiss (Doc. 65)
and defendants Lakin and the Madison County Sheriff’s Department filed a Reply
(Doc. 69). For the reasons explained below, the Court GRANTS IN PART and
DENIES
IN
PART
defendants
Lakin
and
the
Madison
County
Sheriff
Department’s motion to dismiss (Doc. 61) and DENIES defendants Dunstan,
Parente, Gibbons, and Madison County’s motion to dismiss (Doc. 62). The Court
also DENIES plaintiff’s motion to strike (Doc. 66).
II.
Background
Plaintiff Bradley A. Lavite is a decorated U.S. military veteran who has
served as superintendent of the Veterans’ Assistance Commission of Madison
County, Illinois (“VAC”) since 2009 (Doc. 56, ¶¶ 17–18). Prior to 2009, Lavite was
Page 2 of 24
deployed abroad where he was “exposed to multiple detonations of improvised
explosive devices (IEDs) and engagements with enemy forces, and suffered serious
injuries in combat” (Id. at ¶ 18). Since his release from active duty in 2004, Lavite
has been under the care of the OEF/OIF PTSD Clinical Team at the St. Louis
Veterans Administration Medical Center at Jefferson Barracks (“VA Medical
Center”) and has been “compliant” and “actively involved in all recommended
treatments” (Id. at ¶¶ 18, 25).
In 2010, Lavite helped create the first veterans’ alternative treatment court
(“alternative treatment court”) in the state of Illinois and in August of the same
year, Lavite joined the board of the Friends of McAtac Foundation (the “McAtac
Foundation”), a non-profit formed “with the stated purpose of raising money for”
the alternative treatment court (Id. at ¶¶ 20, 23). Between 2010 and 2013, Lavite
and the McAtac Foundation participated in fundraising initiatives that raised
approximately $30,000 (Id. at ¶¶ 19–20).
From the inception of the alternative treatment court in 2009 through mid2010, the VAC was solely responsible for developing and implementing screening
procedures to determine eligibility for the program (Id. at ¶ 21). In June 2010,
Illinois enacted the Veterans and Servicemembers Court Treatment Act which
Lavite claims excluded the VAC (Id.). In response, Lavite began to withdraw VAC
support for the alternative treatment court, which shifted the burden of
performing eligibility screenings from the VAC to Madison County (Id.).
Page 3 of 24
In 2012, amidst ongoing budget cuts, defendant Joseph Parente, the
Administrator of Madison County, along with an employee from the Madison
County Probation Department, approached Lavite in his capacity as VAC
superintendent and requested that funds from the VAC’s budget be used to pay
the salary of a probation department employee whose position was at risk of
elimination (Id. at ¶ 22). Lavite declined Parente’s request (Id.).
In early 2013, the board of the McAtac Foundation met, at Lavite’s request,
to discuss the expenditure of the funds raised by the foundation. (Id. at ¶ 23). At
this meeting, one or more unspecified individuals proposed that a portion of the
$30,000 raised by the foundation be used to send several Madison County judges
and probation department employees to an alternative treatment court conference
in California (Id.). Lavite opposed this proposal and suggested instead that each
Madison County department should pay for its own personnel to attend the
conference (Id.).
At this meeting, Lavite also stated that, under his interpretation of the
Illinois Veterans and Servicemembers Court Treatment Act, the Madison County
VAC was not required to participate in the alternative treatment court (Id. at ¶
24). Lavite claims that the Madison County Public Defender 1 “vehemently
opposed” Lavite’s statements and interpretation of the statute and “snatched” the
copy of the statute that Lavite was holding (Id.). The board postponed the vote on
the issue of fund expenditure until a later meeting, at which all board members
would have an opportunity to weigh in and discuss the issue (Id.). Lavite then
1
Public Defender John Rakowski is not a party to this lawsuit.
Page 4 of 24
drafted and circulated to the board his own proposal recommending the best use
of the money, but he received no response (Id.). Subsequent McAtac Foundation
annual filings no longer listed Lavite as a board member, although he was never
notified of his removal from the board (Id.). Lavite was not notified of any other
McAtac Foundation board meetings and does not know whether the board ever
decided how to use the funds raised by the McAtac Foundation (Id. at ¶¶ 23–24). 2
In March 2014, Lavite suffered a “PTSD incident,” which he describes as a
“manic episode or highly agitated state,” triggered by a broken and infected tooth
(Id. at ¶ 25). After some confusion and delay in his treatment, 3 Lavite had oral
surgery to remove the infected tooth and thereafter resumed his “normal working
duties and family life” (Id.) This was Lavite’s first such incident since his release
from active military service in 2004 (Id.). Lavite claims that, during his absence
from the VAC office in 2014, a social worker from the VA Medical Center
discussed Lavite’s medical condition with a VAC employee without Lavite’s
consent (Id. at ¶ 26).
On or about March 5, 2015, Lavite experienced another PTSD incident at
his residence in Wood River, Illinois, when his family recognized that he was in a
“highly agitated state” and called the police (Id. at ¶ 29). Lavite’s family asked the
first responders to transport him via ambulance to the VA Medical Center, but
they instead placed Lavite in a police car and took him to a holding cell (Id.). After
2
The following year, several Madison County circuit judges and Probation Department employees
and one VAC employee attended the 20th annual training conference of the National Association of
Drug Court Professionals in Anaheim, California (Id. at ¶ 28).
3
Lavite was initially transported to the local mental health facility where he was involuntarily
admitted and his infected tooth remained untreated for several days (Id. at ¶ 25).
Page 5 of 24
continuing to exhibit PTSD-related symptoms, Lavite was placed in the back of a
police car bound for the local mental health facility where he had been
involuntarily admitted for several days the year before (Id.). While in the police
car, Lavite “screamed at the driver and eventually kicked out the rear windows” of
the car (Id.). He was subsequently transported to a nearby emergency room and
then to the VA Medical Center (Id.). Lavite’s psychiatrist at the VA Medical Center
eventually cleared Lavite to return to work without limitations on March 23, 2015
(Id. at ¶ 31, Ex. B).
On March 6, 2015, County Administrator Parente sent a letter to the
President of the VAC Executive Board that referenced, “[w]ithout specifics,”
complaints Parente and other county personnel had received from VAC employees
related to Lavite’s conduct in the VAC office (Id. at ¶ 30). In the letter, Parente
“attempted to convince” the VAC Executive Board that it was subject to, and
required to follow, Madison County Personnel Policies (Id.).
On March 20, 2015, Parente issued a “standing order” that Lavite was
prohibited from entering his VAC office in the Madison County Administration
Building, and that he would be arrested for trespassing if he defied the order (Id.
at ¶ 32). On or about March 20, 2015, Parente telephoned the VAC Board
President and “demanded that Lavite be fired from his position.”
On May 4, 2015, Lavite’s attorney spoke with Lt. Darin Trent, a member of
the courthouse security division of the Madison County Sheriff’s Department (Id.
at ¶ 36). Lavite’s attorney stated that Lavite would be returning to his office in the
Page 6 of 24
county building later that day (Id.). Lt. Trent responded that because Parente’s
“standing order” was still in effect, Lavite would be asked to leave if he tried to
enter the building, and thereafter arrested for trespassing if he refused to leave
(Id.). Lavite was forced to work remotely during the time he was denied access to
his office (Id. at ¶ 32).
On June 12, 2016, Lavite filed a complaint for mandamus in Illinois state
court against defendants Dunstan, Parente, Madison County Board, and Lakin,
seeking to reverse Parente’s “standing order” prohibiting Lavite from accessing his
office on Madison County property, compel the Madison County Board to pay his
salary, and compel the Board to pay the VAC’s attorneys’ fees associated with the
lawsuit (Doc 62-1).
On August 5, 2016, Lavite initiated this federal action, and on May 8, 2017,
he filed the operative First Amended Complaint, alleging that the defendants
violated his First Amendment right to peaceably assemble on Madison County
property (Count I), violated his First Amendment right to free speech by
retaliating against him (Count II), and violated his Fourteenth Amendment due
process rights by failing to refer an investigation of Lavite’s conduct to law
enforcement (Count III). Lavite also claims that Sheriff Lakin violated his
Fourteenth Amendment due process rights either by failing to assure the existence
of adequate rules and procedures to conduct an investigation (Count IV), or,
alternatively, by failing to implement or follow such rules and procedures that the
Sheriff’s Department had in place (Count V). Lavite further alleges that Madison
Page 7 of 24
County State’s Attorney Thomas Gibbons violated his Fourteenth Amendment due
process rights when Gibbons, with reckless disregard for Lavite’s constitutional
rights, advised defendants Dunstan and Parente that it was legal to ban Lavite
from Madison County property (Count VI), or, alternatively, that Gibbons violated
his Fourteenth Amendment due process rights when Gibbons, with knowledge of
the “standing order” banning Lavite from county property, failed to advise
Dunstan and Parente that the ban was illegal and would violate Lavite’s
constitutional rights (Count VII). Finally, Lavite seeks accounting and recovery on
the grounds that Dunstan, Parente, or another Madison County agent wrongfully
assumed control over and withdrew funds from a VAC “special fund” without the
knowledge or consent of the VAC (Count VIII).
III.
FEDERAL RULE
OF
Motion to Dismiss
CIVIL PROCEDURE 12(b)(6) permits a motion to dismiss a
complaint for failure to state a claim upon which relief can be granted. Hallinan v.
Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
The Supreme Court explained in Bell Atlantic Corp. v. Twombly that Rule 12(b)(6)
dismissal is warranted if the complaint fails to set forth “enough facts to state a
claim to relief that is plausible on its face.” 550 U.S. 544, 570 (2007). Although
federal pleading standards were retooled by Twombly and Ashcroft v. Iqbal, 556
U.S. 662 (2009), notice pleading remains all that is required in a complaint.
Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (“A plaintiff still
must provide only ‘enough detail to give the defendant fair notice of what the
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claim is and the grounds upon which it rests, and, through his allegations, show
that it is plausible, rather than merely speculative, that he is entitled to relief.’”).
In determining whether the allegations in the plaintiff’s complaint are sufficient “to
raise a right to relief above a speculative level,” Twombly, 550 U.S. at 555, the
Court assumes the truth of all well-pleaded factual allegations and draws all
reasonable inferences in the plaintiff’s favor. See Virnich v. Vorwald, 664 F.3d
206, 212 (7th Cir. 2011); Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009).
With these principles in mind, the Court now turns to address merits of the
defendants’ motions to dismiss.
IV.
Analysis
A. Lavite’s Complaint Is Not Duplicative Of Or Parallel To His State Case
The defendants urge the Court to dismiss Lavite’s federal suit because it is
either duplicative of, or parallel to, his pending state proceeding (Doc. 61, pp. 5–
6; Doc. 62, pp. 5–6). Defendants Lakin and the Madison County Sheriff’s
Department rely on Serlin v. Arthur Andersen & Co, 3. F.3d 221 (7th Cir. 1993),
while defendants Dunstan, Parente, Gibbons, and Madison County cite Calvert
Fire Ins. Co. v. American Mut. Reinsurance Co., 600 F.2d 1228 for support. The
Court addresses the arguments of both groups of defendants on this ground
together because they are closely related and ultimately fail for the same reasons.
In
situations
involving
“the
contemporaneous
exercise
of
concurrent
jurisdictions, either by federal courts or by state and federal courts,” the Supreme
Court has recognized that “principles of wise judicial administration” may justify
Page 9 of 24
the dismissal of a federal suit where it is duplicative of or parallel to a suit
pending in another forum. Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817, (1976). However, the standard for determining
whether dismissal of a federal suit is warranted depends on whether the allegedly
duplicative or parallel suit is pending in federal or state court. Id.
Where both actions are pending in federal court, “the general principle is to
avoid duplicative proceedings.” Id. District courts are accorded “a great deal of
latitude and discretion” in determining whether one federal suit is duplicative of
another, and “an abuse of discretion is established only where no reasonable man
could agree with the district court.” Id. at 223–24; see Serlin, 3 F.3d at 223.
On the other hand, where, as here, the allegedly parallel cases implicate statefederal concurrent jurisdiction, the general rule is that “the pendency of an action
in the state court is no bar to proceedings concerning the same matter in the
Federal court having jurisdiction.” Colorado River, 424 U.S. at 817. The
difference in approach between wholly federal concurrent jurisdiction and statefederal concurrent jurisdiction “stems from the virtually unflagging obligation of
the federal courts to exercise the jurisdiction given them.” Id. Although there may
be “exceptional” circumstances permitting the dismissal of a federal suit due to
the existence of a parallel state proceeding, “[o]nly the clearest justifications will
warrant dismissal.” Id. at 818–19.
A federal suit is parallel to a pending state case “when substantially the same
parties are contemporaneously litigating substantially the same issues in another
Page 10 of 24
forum, thus making it likely that judgment in one suit will have a res judicata
effect in the other suit.” Calvert Fire Ins. Co. v. American Mut. Reinsurance Co.,
600 F.2d 1228, 1229 n.1 (7th Cir. 1979). Here, res judicata principles of Illinois
law would apply to any judgment in Lavite’s state case because federal courts are
bound by the Full Faith and Credit Act, 28 U.S.C. § 1738, to give a state judgment
“the same res judicata effect in federal court that it would be given in the court of
the rendering state.” LaSalle Nat. Bank of Chicago v. City of DuPage, 856 F.2d
925, 930 (7th Cir. 1988) (quoting Torres v. Rebarchak, 814 F.2d 1219, 1222 (7th
Cir. 1987)). Under Illinois law, “separate claims will be considered the same
cause of action for purposes of res judicata if they arise from a single group of
operative facts, regardless of whether they assert different theories of relief.”
Chicago Title Land Tr. Co. v. Potash Corp. of Saskatchewan Sales, 664 F.3d
1075, 1080 (7th Cir. 2011) (quoting River Park, Inc. v. City of Highland Park, 184
Ill.2d 290, 311 (1998)). The Court must therefore determine whether this suit and
Lavite’s state case arise from a single group of operative facts such that judgment
in the state case would likely have a res judicata effect in this case.
At this stage of the proceedings, the Court is not convinced that this suit is
parallel to Lavite’s state case for purposes of Colorado River abstention. Assuming
the truth of Lavite’s well-pleaded factual allegations and drawing all reasonable
inferences in his favor, this case does not arise from the same group of operative
facts as Lavite’s state case, such that a judgment in the state case would likely
have a res judicata effect on this case.
Page 11 of 24
Lavite’s state complaint for mandamus arose solely from the directive issued
by Parente or another individual, which prohibited Lavite from accessing his
office in the Madison County Administration Building (Doc 62–1). Lavite argued
that he needed to access his VAC office to perform his duties, and asked the state
court to lift the directive banning Lavite from his office, compel the Madison
County Board to pay his salary, and compel the Board to pay the VAC’s attorneys’
fees (Doc 62-1).
On the other hand, Lavite alleges here that the defendants violated his First
Amendment rights to freedom of speech and assembly by retaliating against him
for his dissenting speech. Lavite points to 2012, when he refused Parente’s
request for the VAC to pay the salary of a county probation department employee,
and to the 2013 McAtac Foundation board meeting, at which he voiced his
objection to using funds raised by the foundation to send Madison County officials
to an alternative treatment court conference (Doc. 56 at ¶ 23; Doc. 65 at p. 3).
Lavite claims that the retaliatory acts included, among other things, unauthorized
access to his medical records by a VAC employee in 2014, Parente’s March 6,
2015 letter to the VAC, Parente’s March 20, 2015 directive banning Lavite from
his VAC office, and Parente’s March 20, 2015 phone call “demanding” that Lavite
be fired (Doc. 56 at ¶¶ 30, 32, 36; Doc. 65 at p. 3). Lavite’s First Amendment
claims thus arise from a significantly broader set of facts than the state case.
Lavite also contends that defendants Lakin and the Madison County Sheriff’s
Department violated his Fourteenth Amendment due process rights by failing to
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either implement or enforce “rules and procedures” for investigating certain
workplace incidents, as required by the Madison County Personnel Policy
Handbook (Doc. 56 at ¶¶ 53–55, 58–60). Again, while Lavite’s state complaint
arose solely from Parente’s March 20, 2015 directive banning him from his VAC
office, Lavite’s due process claims arise from defendants Lakin and the Sheriff
Department’s alleged inaction in the face of a purported duty to establish and
follow certain procedures.
Without more, the Court cannot say that Lavite’s federal claims arise from the
same group of operative facts as his state claims. Accordingly, the motions to
dismiss Lavite’s claim on this basis are DENIED.
B. Lavite’s Claims Are Not Barred By The Doctrine Of Claim Splitting
Both groups of defendants also argue that the doctrine of claim splitting bars
this suit. Claim splitting is a form of res judicata that prohibits a plaintiff from
“splitting” a claim by “suing for part of a claim in one action and then suing for
the remainder in another action.” Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d
779, 785 (7th Cir. 2016) (per curiam). Like traditional claim preclusion, the claim
splitting doctrine forbids a party from bringing a duplicative lawsuit arising from
the same transaction or events underlying a previous suit simply by changing the
legal theory. See Carr v. Tillery, 591 F.3d 909, 913–14 (7th Cir. 2010). Unlike
traditional claim preclusion, however, the doctrine of claim splitting may be
applied before either action reaches a final judgment on the merits. Fleming v.
Page 13 of 24
City of E. St. Louis, No. 15-CV-548-DRH-DGW, 2015 WL 6871131, at *2 (S.D. Ill.
Nov. 9, 2015) (Herndon, J.).
For the reasons discussed above, the Court is not presently convinced that
Lavite’s two suits arise from the same transaction or events. Accordingly, the
motions to dismiss Lavite’s claim on this basis are DENIED.
C. Lavite’s Claims Are Not Barred By The R ooker–Feldman Doctrine
Defendants Dunstan, Parente, Gibbons, and Madison County argue that this
suit is also barred by the Rooker–Feldman doctrine. The Rooker–Feldman
doctrine “precludes lower federal court jurisdiction over claims seeking review of
state court judgments . . . [because] no matter how erroneous or unconstitutional
the state court judgment may be, the Supreme Court of the United States is the
only federal court that could have jurisdiction to review a state court judgment.”
Taylor v. Fed. Nat. Mortg. Ass'n, 374 F.3d 529, 532 (7th Cir. 2004) (quoting
Brokaw v. Weaver, 305 F.3d 60, 664 (7th Cir. 2002)). “Thus, if a claim is barred
by the Rooker–Feldman doctrine, a federal court lacks subject matter jurisdiction
over the case.” Brokaw, 305 F.3d at 664 (citing Remer v. Burlington Area Sch.
Dist., 205 F.3d 990, 996 (7th Cir. 2000)).
Although
“[i]n
its
most
straight-forward
presentment,
the Rooker–
Feldman doctrine bars federal jurisdiction when the federal plaintiff alleges that
her injury was caused by a state court judgment,” the doctrine also precludes
federal jurisdiction over claims that are “inextricably intertwined” with a state
court judgment. Remer, 205 F.3d at 996. Although it is difficult to determine
Page 14 of 24
which federal claims are “inextricably intertwined with a state judgment,” the
“pivotal inquiry in applying the doctrine is whether the federal plaintiff seeks to
set aside a state court judgment or whether he is, in fact, presenting an
independent claim.” Id.
Here, Lavite is not attempting to challenge or set aside a state court judgment.
In fact, the defendants have argued that Lavite’s federal claims impermissibly
duplicate his state claims, not challenge them. Lavite’s state complaint for
mandamus arose out of the March 20, 2015 “standing order” that prevented him
from accessing his VAC office and was limited to the immediate objectives of
regaining access to his VAC office, obtaining payment of his salary, and
compelling the Madison County Board to pay VAC attorneys’ fees. On the other
hand, Lavite’s federal suit arises out of events that occurred years before the
events underlying the state case. Specifically, Lavite alleges that the defendants
violated his federal constitutional rights when they retaliated against him in
response to his refusal in 2012 to pay a Madison County probation department
employee’s salary from VAC funds, as well as his reluctance in 2013 to spend
McAtac Foundation funds on certain county employees. He also argues that
defendants violated his constitutional rights by failing to either enact or follow
rules in the face of a duty to do so.
Because Lavite is not attempting to challenge or set aside a state court
judgment, the defendants’ motion to dismiss on this ground is DENIED.
Page 15 of 24
D. Lavite’s Complaint States Plausible Claims To Relief Under Rule
12(b)(6)
a. First Amendment Retaliation (Counts I, II, VI, and VII)
The defendants argue that Lavite’s complaint fails to state plausible First
Amendment retaliation claims. Counts I, VI, and VII allege that the “standing
order” issued by Parente, endorsed by Gibbons, and enforced by the Sheriff’s
Department violated Lavite’s First Amendment right to peaceably assemble on
public property. Count II alleges that Parente’s “demand” for Lavite’s termination
and the above-referenced “standing order” violated Lavite’s First Amendment right
to free speech.
To state a First Amendment retaliation claim, Lavite must plausibly allege
“that (1) he engaged in activity protected by the First Amendment, (2) he suffered
an adverse action that would likely deter future First Amendment activity, and (3)
the First Amendment activity was ‘at least a motivating factor’ in the defendants'
decision to retaliate.” Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 622 (7th
Cir. 2012) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).
Assuming the truth of the complaint’s factual allegations, the Court finds
that Counts I, II, VI, and VII state plausible claims to relief. Based on the
pleadings, it is plausible that (1) Lavite was engaged in protected speech or
assembly activities property when he denied Parente’s request to pay a Madison
County probation officer’s salary with VAC funds or when he dissented at the
McAtac Foundation board meeting; (2) Lavite suffered an adverse action that
would likely deter future First Amendment activity when, on March 20, 2015,
Page 16 of 24
Parente “demand[ed]” Lavite’s termination as VAC superintendent and issued the
“standing order” to indefinitely prohibit Lavite from accessing his workplace on
Madison County property; and (3) that Lavite’s protected speech or assembly
activities were a motivating factor in the defendants’ decision to retaliate against
him.
Because Lavite has stated plausible claims to relief based on the First
Amendment that are sufficient to put the defendants on notice of their allegedly
wrongful conduct, the defendants’ motion to dismiss on this ground is DENIED.
b. Fourteenth Amendment Due Process (Counts III, IV, and V)
The defendants also argue that Lavite’s complaint fails to state plausible
Fourteenth Amendment due process violations. Lavite’s due process claims are
based on certain provisions of the Madison County Personnel Policy that allegedly
required the defendants to establish, implement, and follow certain procedures
(see, e.g., Doc. 56 ¶ 48).
Under some circumstances, a public employer’s employee handbook or
personnel policy may give rise to a cognizable property interest in public
employment or a similar “benefit” for purposes of the Fourteenth Amendment.
See, e.g., Perry v. Sindermann, 408 U.S. 593, 600–02 (1972); Miller v. Crystal
Lake Park Dist., 47 F.3d 865, 867–68 (7th Cir. 1995) (Easterbrook, J.).
“’[P]roperty’ denotes a broad range of interests that are secured by ‘existing rules
or understandings.’” Sindermann, 408 U.S. at 601 (quoting Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972)). Furthermore, “[a] person's
Page 17 of 24
interest in a benefit is a ‘property’ interest for due process purposes if there are
such rules or mutually explicit understandings that support his claim of
entitlement to the benefit and that he may invoke at a hearing.” Id. (citing Roth,
408 U.S. at 577); see also Miller, 47 F.3d at 868 (“an employment handbook may
establish a legitimate claim of entitlement if it satisfies Sindermann's essential
requirement, which we took to be the existence of a ‘mutually explicit
understanding.’”) (quoting Lawshe v. Simpson, 16 F.3d 1475, 1482 (7th Cir.
1994)). Thus, if an employee handbook or other applicable personnel policy
creates an express or implied contract between a public employer and its
employees, covered employees may have a legitimate claim of entitlement to the
benefits promised therein. See Miller, 47 F.3d at 867–68 (analyzing whether
Illinois municipal employer’s personnel manual constituted binding contract). 4
On the face of the pleadings, which quote from, but do not include, the
Madison County Personnel Policy, the Court finds it plausible, at this stage, that
the Policy could have given rise to legally binding obligations under Illinois law
sufficient to require defendants to implement or adhere to certain investigative
procedures. The Court therefore finds it plausible that Lavite could have a legally
cognizable interest in the benefit of certain procedures sufficient to sustain his
4
Illinois law would govern the question of whether the Madison County Personnel Policy could
give rise to binding contractual obligations. See Sindermann, 408 U.S. at 602 n.7 (“Property
interests are not created by the Constitution. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state
law.”); Miller, 47 F.3d at 867–68 (applying Illinois law to determine whether municipal employer’s
personnel manual could give rise to binding contract sufficient to support Fourteenth Amendment
due process claim).
Page 18 of 24
Fourteenth Amendment due process claims. For these reasons, the defendants’
motions to dismiss on this ground are DENIED.
E. Lavite’s Complaint Adequately Pleads Municipal Liability Under 42
U.S.C. § 1983 and Monell
To state a § 1983 claim against a municipality, the complaint must allege that
“an official policy or custom not only caused the constitutional violation, but was
‘the moving force’ behind it.” Sims, 506 F.3d at 514 (citing City of Canton, Ohio v.
Harris, 489 U.S. 378, 389 (1989). Further, under such a theory, “there is no
respondeat superior liability… [as] the Supreme Court ‘distinguish[es] acts of the
municipality from acts of employees of the municipality.’” Milestone v. City of
Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original) (internal citations
omitted)); See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n. 58 (1978).
In so doing, it limits liability to “action for which the municipality is actually
responsible.” Pembaur, 475 U.S. at 479. Thus, plaintiff must eventually prove the
constitutional violation was caused by one of the following: “(1) an express
municipal policy; (2) a widespread, though unwritten, custom or practice; or (3) a
decision by a municipal agent with ‘final policymaking authority.’” Milestone, 665
F.3d at 780 (quoting Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th
Cir. 2009)).
The question of “whether an entity has final policymaking authority is a
question of state or local law.” Id. (citing Jett v. Dallas Indep. Sch. Dist., 492 U.S.
701, 737 (1989)); See also Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 737 (7th
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Cir. 1999); Darchak, 580 F.3d at 630. However, “not every municipal official with
discretion is a final policymaker,” as “authority to make final policy in a given
area requires more than mere discretion to act.” Id. (citing Darchak, 580 F.3d at
630 and Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 469 (7th
Cir. 2001)). The relevant question is whether the official’s “decisions are subject
to review by a higher official or other authority.” Id. (citing Gernetzke, 274 F.3d at
469).
Thus, the situations in which municipal liability is proper under this theory
are limited to when “the official who commits the alleged violation . . . has
authority that is final in the special sense that there is no higher authority.”
Gernetzke, 274 F.3d at 469. The official “must possess ‘responsibility for making
law or setting policy,’ i.e. ’authority to adopt rules for the conduct of government,’”
rather than “the mere authority to implement pre-existing rules….” Killinger v.
Johnson, 389 F.3d 765, 771 (7th Cir. 2004) (citing Rasche v. Village of Beecher,
336 F.3d 588, 599, 601 (7th Cir. 2003) (internal citations omitted); See also
Auriemma v. Rice, 957 F.2d 397, 400–01 (7th Cir. 1992)). Such authority “may
be granted directly by a legislative enactment or may be delegated by an official
who possesses such authority….” Rasche, 336 F.3d at 600; See also Pembaur,
475 U.S. at 483; Eversole v. Steele, 59 F.3d 710, 716–17 (7th Cir. 1995). If the
power is delegated, however, then the “person or entity with final policymaking
authority must delegate the power to make policy, not simply the power to make
decisions.” Darchak, 580 F.3d at 630; see also Kujawski, 183 F.3d at 739.
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The Seventh Circuit has also held that a single decision attributable to a
municipality can create a cause of action under § 1983 if “the evidence that the
municipality had acted and that the plaintiff had suffered a deprivation of federal
rights also proved fault and causation.” Board of County Com’rs of Bryan County,
Okl. v. Brown, 520 U.S. 397, 405 (1997). This is true even where “a final decision
maker’s adoption of a course of action [is] ‘tailored to a particular situation and
not intended to control decisions in later situations,’” because that adopted course
of action by authorized decision makers “surely represents an act of official
government ‘policy’ as that term is commonly understood.” Id. at 406 (quoting
Pembaur, 475 U.S. at 481); Pembaur, 475 U.S. at 481. “Where action is taken by
those who establish governmental policy, the municipality is equally responsible
whether that action is to be taken only once or to be taken repeatedly.” Pembaur,
475 U.S. at 481.
Defendants argue that Counts I through VII should be dismissed because
they fail to plead municipal liability. Specifically, the defendants argue that Lavite
has failed to plausibly allege that an express municipal policy or a decision by a
municipal agent with final policymaking authority violated his constitutional
rights (see Doc. 61, pp. 9–14; Doc. 62, pp. 15–16).
Here, the Court finds that Lavite has stated a plausible claim for municipal
liability under 42 U.S.C. § 1983 and Monell. Counts I through VII, taken together,
allege that the directive prohibiting Lavite from accessing his VAC office was
issued by Parente, the Madison County Administrator (who acts pursuant to the
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direction of Dunstan, the Madison County Board Chairman), endorsed either
explicitly or implicitly by Gibbons, the State’s Attorney of Madison County, and
enforced by Sheriff Lakin and the Madison County Sheriff’s Department. Lavite
further alleges that this directive, among other actions, violated his constitutional
rights.
If these allegations are proven to be supported by adequate evidence, they
could plausibly support Monell liability on the theory that Parente, Dunstan,
Gibbons, Lakin, or another Madison County agent with final decision-making
authority adopted a course of action that was “tailored to a particular situation,”
because that course of action could “represent[ ] an act of official government
‘policy’ as that term is commonly understood.” See Brown, 520 U.S. at 405;
Pembaur, 475 U.S. at 481. Furthermore, if there is evidence to support such a
theory, evidence that Madison County acted and that Lavite thereby suffered a
deprivation of federal rights could also prove fault and causation. See Brown, 520
U.S. at 405.
Therefore, because Lavite has plausibly stated claims for municipal liability
under 42 U.S.C. § 1983 and Monell, defendants’ motions to dismiss on this
ground are DENIED.
F. The Madison County Sheriff’s Department Is An Improper Party
Finally, Defendant Madison County Sheriff’s Department (the “Department”)
contends that it should be dismissed from this action because it cannot be sued
separately from the Madison County government (Doc. 61, pp. 8–9). According to
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Federal Rule of Civil Procedure 17(b)(3), state law determines whether an entity
has the capacity to be sued in federal court. Fed. R. Civ. P. 17(b)(3). Under Illinois
state law, a party must have a legal existence, either natural or artificial, to be
sued. Jackson v. Vill. of Rosemont, 180 Ill. App. 3d 932, 937 (1988).
Departments within a governing body have no legal existence separate from the
governing
body
and
cannot
be
sued
under
42
U.S.C.
§1983. Whiting v. Marathon Cty. Sheriff’s Dep't, 382 F.3d 700, 704 (7th Cir.
2004) (finding that the “[c]ounty Sheriff’s Department is not a legal entity
separable from the county government which it serves and is therefore, not
subject to suit”); Wagner v. Washington Cty., 493 F.3d 833, 835 (7th Cir. 2007)
(sheriff’s department is a division of the county and not a justiciable entity); see
also Schollmeyer v. Lind, No. 17-CV-407-JPG-RJD, 2018 WL 770499, at *2 (S.D.
Ill. Jan. 16, 2018), report and recommendation adopted, No. 17-CV-00407-JPGRJD, 2018 WL 747506 (S.D. Ill. Feb. 7, 2018) (Gilbert, J.) (dismissing Madison
County Sheriff’s Department as defendant due to lack of capacity to be sued as
separate legal entity).
Accordingly, because the Madison County Sheriff’s Department does not have
an independent legal existence, it cannot be sued separately from the Madison
County government.
V.
Conclusion
For the reasons stated above, defendants Lakin and the Madison County
Sheriff’s Department’s motion to dismiss (Doc. 61) is GRANTED IN PART AND
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DENIED IN PART. The Court DIRECTS the Clerk of Court to terminate the
Madison County Sheriff’s Department as a defendant in this case.
Furthermore,
defendants
Dunstan, Parente, Gibbons, and
Madison
County’s motion to dismiss (Doc. 62) is also DENIED.
Finally, plaintiff’s motion to strike (Doc. 66) is DENIED.
IT IS SO ORDERED.
Judge Herndon
2018.03.29 16:16:34
-05'00'
United States District Judge
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