Thompson v. Illinois Dept. of Prof. Regulation

• Decision Date: 07 August 2002
• Docket Number: No. 01-4074.,01-4074.
• Citation: 300 F.3d 750
• Parties: Mark E. THOMPSON, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Leonard A. Sherman, individually and as Director of the Illinois Department of Professional Regulation, Bob Dudycz, Walter Dudycz, and William Darr, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 750

300 F.3d 750

Mark E. THOMPSON, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Leonard A. Sherman, individually and as Director of the Illinois Department of Professional Regulation, Bob Dudycz, Walter Dudycz, and William Darr, Defendants-Appellees.

No. 01-4074.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2002.

Decided August 7, 2002.

Ronald A. Stearney, Jr. (argued), Bellows & Bellows, Chicago, IL, for plaintiff-appellant.

Jeffrey D. Colman (argued), Jenner & Block, Thaddeus S. Gauza (argued), Mitchell B. Goldberg, Blau & Bonavich, Samuel J. Ruffolo, Baum, Ruffolo & Marzal, Chicago, IL, for defendants-appellees.

Before: FLAUM, Chief Judge, BAUER and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

This case deals with the long-running saga of political patronage hiring and firing in Illinois. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion); Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996); see also Shakman v. Democratic Org. of Cook County, 569 F.Supp. 177 (N.D.Ill.1983).

The plaintiff, Mark E. Thompson, an elected Maine Township Supervisor, sued the Illinois Department of Professional Regulation (IDPR) and others, claiming he was demoted and transferred from his position as Chief Administrative Law Judge (Chief ALJ) for exercising his First Amendment rights of political belief and association. The district court dismissed the suit, finding the position was a policymaking one based on the document describing the position attached to Thompson's complaint. Thompson appeals, arguing the position is not a policymaking one, and that the district court misused and misconstrued the attached document. Finding that Thompson pled himself out of court, we affirm.

BACKGROUND

Mark E. Thompson was an elected Maine Township Supervisor from 1993 to 2001. In 1999 he was appointed, on a probationary basis, Deputy Chief Counsel for the IDPR.¹ Thompson later accepted a voluntary transfer to the position of Chief ALJ of the IDPR in April 2000.²

In October 2000, Thompson fired a Maine Township Code Enforcement Officer, citing the employee for failing to come to work and spending most of his time at home (a.k.a. ghost pay rolling). According to Thompson, the fired employee was a friend of defendants Bob Dudycz and William Darr. Bob Dudycz challenged Thompson for the position of Maine Township Supervisor in 2001,³ William Darr was the Maine Township Republican Committeeman,⁴ and Walter Dudycz was an elected State Senator. (Bob Dudycz and Walter Dudycz are brothers).

Tensions began to mount between Thompson and Dudycz and Darr. As a result, Thompson was not "slated" as a candidate for Maine Township Supervisor on the Republican ticket. Then, in January 2001, Thompson, a Republican, began openly supporting several Democratic candidates for Maine Township offices. Thompson alleges that thereafter Bob Dudycz, Walter Dudycz, and William Darr conspired with other Illinois State elected officials, including the Governor, to demote and transfer him in retaliation for his actions as Township Supervisor and his political associations.

Thompson, a resident of Des Plaines, was later temporarily transferred to Springfield to occupy the position of IDPR's Chief of Enforcement Administration. Finally, Thompson was transferred back to his original position as IDPR's Deputy Chief Counsel, assigned to work in Chicago.

Thompson filed a two count complaint in district court on August 7, 2001. He amended the complaint, adding an additional count, on September 20, 2001. Count I of the amended complaint alleged that Thompson was transferred and later removed from his position as Chief ALJ in retaliation for exercising his First Amendment free speech rights in violation of 42 U.S.C. § 1983. The employment actions were purported to be politically motivated. Count II was a state law breach of contract claim. Count III was a claim for denial of due process and equal protection for the transfer and removal. Thompson attached the official job description of the Chief ALJ to the amended complaint.

The defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), and the district court granted the motion, finding, as a matter of law, that the ALJ position occupied by the plaintiff was a policymaking position, hence he could be removed for political reasons. In reaching that conclusion, the district court relied wholly upon the job description of the Chief ALJ provided by Thompson. The court also found Director Sherman was entitled to qualified immunity. Thompson appeals the dismissal of Counts I and III, and the denial of his motion for leave to file a third amended complaint.

ANALYSIS

A. Standard of Review

We review the district court's grant of a motion to dismiss de novo, looking only at the pleadings, taking all the facts pled as true and construing all inferences in favor of the plaintiff. Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Pleva v. Norquist, 195 F.3d 905, 911 (7th Cir.1999). The consideration of a 12(b)(6) motion is restricted solely to the pleadings, which consist generally of the complaint, any exhibits attached thereto, and supporting briefs. See Beam, 838 F.2d at 244; FED.R.CIV.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."). Any further pleadings would turn the motion into a 12(c) motion for judgment on the pleadings, or if additional evidence was relied upon or introduced, the motion would be converted into a 56(c) motion for summary judgment. See Beam, 838 F.2d at 244; Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 835-36 (7th Cir.1994).

B. Pleading Requirements

All that Federal Rule of Civil Procedure 8 requires is a short and plain statement showing the plaintiff is entitled to relief, the purpose of which is to give the defendant notice of the claims and the grounds they rest upon. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). If the plaintiff chooses to provide additional facts, beyond the short and plain statement requirement, the plaintiff cannot prevent the defense from suggesting that those same facts demonstrate the plaintiff is not entitled to relief. See Jefferson v. Ambroz, 90 F.3d 1291, 1296 (7th Cir.1996) ("[I]f a plaintiff chooses to `plead particulars, and they show he has no claim, then he is out of luck — he has pleaded himself out of court.'") (quoting Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir.1994)); cf. R.J.R. Serv., Inc. v. Aetna Cas. and Sur. Co., 895 F.2d 279, 280 (7th Cir.1989) (holding a court is "not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or assign any weight to unsupported conclusions of law."). Likewise, Thompson cannot attach a description of the duties of the Chief ALJ, affirming that those were his duties, and later, after realizing the consequences, attempt to retract the exhibit.

Thompson asserts he is entitled to rebut the statements in the exhibit, and that the 12(b)(6) motion should have been converted into a Rule 56(c) motion.⁵ Thompson's argument might have some validity if any of the defendants had introduced the document; the problem is that it was Thompson who introduced the exhibit which harmed, instead of helping his case. Rule 56(c) is not a savior for plaintiffs whose pleadings essentially build the defendant's case. The district court properly considered this as a motion to dismiss by relying only on the pleadings and not considering any documents outside the pleadings.

C. Documents Attached to the Complaint as Evidence

Thompson cites Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449 (7th Cir.1998), in support of his argument that when attachments and allegations in a complaint are in conflict, the court should resolve the differences in favor of the plaintiff. NIGOS reaffirmed the "well-settled rule that when a written instrument contradicts allegations in a complaint to which it is attached, the exhibit trumps the allegations." Id. at 454 (emphasis added); see also In the Matter of Wade, 969 F.2d 241, 249 (7th Cir.1992) ("A plaintiff may plead himself out of court by attaching documents to the complaint that indicate that he or she is not entitled to judgment."); Graue Mill Dev. Corp. v. Colonial Bank & Trust Co. of Chi., 927 F.2d 988, 991 (7th Cir.1991). NIGOS' specific holding dealt only with exhibits which are not the "subject of the claim". 163 F.3d at 455. NIGOS applied a more flexible approach because the attached exhibit was not at issue in the litigation. Id. The fact remains that where a plaintiff attaches documents and relies upon the documents to form the basis for a claim or part of a claim, dismissal is appropriate if the document negates the claim.

In his second amended complaint, which is twelve pages long, Thompson did not provide a single direct reference to the duties of the Chief ALJ. The only statement which even refers to the Chief ALJ's duties is in Count II, the breach of contract claim, and states: "That the position of Chief Administrative Law Judge is a civil service title of Senior Public Administrator. (Job description is attached as Exhibit C)". The lack of contradictory facts in the complaint distinguishes the instant case from NIGOS and from cases in which the facts of the complaint are in conflict with facts in an exhibit attached to the complaint. Rather than making allegations in the complaint, Thompson attached the job description as proof that he was demoted when he was transferred. (In order to show that he was demoted and transferred, Thompson needed to establish that the duties of the two positions were different, which is...