McGrath v. Gillis

• Citation: 44 F.3d 567
• Decision Date: 06 January 1995
• Docket Number: No. 94-2443,94-2443
• Parties: Michael McGRATH, Plaintiff-Appellee, v. Kenneth GILLIS, Ex-First Assistant State's Attorney, and Steven Rissman, Former Assistant State's Attorney, in their individual capacities, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 567

44 F.3d 567

Michael McGRATH, Plaintiff-Appellee, v. Kenneth GILLIS, Ex-First Assistant State's Attorney, and Steven Rissman, Former Assistant State's Attorney in their individual capacities Defendants-Appellants.

No. 94-2443.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1994.

Decided Jan. 6, 1995.

Michael L. McGrath, Blue Island, IL (argued), for plaintiff-appellee.

Nancy A. Berte, Office of State's Atty., (argued), Jeremy C. Schwartz, Office of State's Atty., Federal Litigation Div., John J. Murphy, Office of the State's Atty., Labor & Employment Div., Chicago, IL, for defendants-appellants.

Before RIPPLE and MANION, Circuit Judges, and SKINNER, District Judge. ^*

SKINNER, District Judge.

Plaintiff/appellee Michael McGrath was discharged on November 15, 1991 from his position as an Assistant State's Attorney in the Child Support Enforcement Division of the State's Attorney's Office of Cook County. McGrath then filed a three-count complaint pursuant to 42 U.S.C. Sec. 1983 against State's Attorney Jack O'Malley, ex-First Assistant State's Attorney Kenneth Gillis, Former Assistant State's Attorney Steven Rissman, and Assistant State's Attorney Obrietta Scott, each individually and in his or her official capacity, as well as the State of Illinois, County of Cook and Cook County State's Attorney's Office, alleging the deprivation of a property interest in continued employment without due process of law under the Fourteenth Amendment, breach of an employment contract, and intentional infliction of emotional distress. All defendants except for Gillis and Rissman in their individual capacities were eventually dismissed from the action.

Defendants Gillis and Rissman brought a Motion for Summary Judgment before the district court arguing that McGrath possessed no property interest in continued employment, that they were not liable in their individual capacities because McGrath failed to show any personal involvement on defendants' part, and that they were entitled to qualified immunity because their alleged misconduct in terminating McGrath did not violate any clearly established constitutional rights. Their motion was denied. Gillis and Rissman have filed an interlocutory appeal from the denial of qualified immunity.

1. Jurisdiction

In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), the Supreme Court held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." This court has jurisdiction to review a denial of qualified immunity when the lower court's decision is based on a legal determination that the conduct alleged violated a clearly established protected right, but this court has no jurisdiction to review appeals from decisions based on factual conclusions. Marshall v. Allen, 984 F.2d 787, 792 (7th Cir.1993).

Here, the district judge denied defendants' claim of qualified immunity on legal rather than factual grounds, finding that in terminating the plaintiff's employment the defendants violated a clearly established constitutional right. The judge elected to treat defendants' Motion for Summary Judgment as a Motion for Reconsideration of her prior denial of defendants' earlier Motion to Dismiss. In ruling on the Motion for Summary Judgment, she explained that, "Accepting the facts alleged in the complaint as true, the court found [in its earlier denial of Defendants' Rule 12(b)(6) Motion to Dismiss] that 'there can be no doubt that a reasonable person in the defendants' position would have been aware that his conduct violated McGrath's right to due process." In ruling on defendants' Motion for Summary Judgment, the judge found that defendants did not present any new facts beyond those accepted as true in the earlier Motion to Dismiss. Accordingly, in both the Motion to Dismiss and the Motion for Summary Judgment, she did not weigh or adjudicate the facts but rather construed all evidence in favor of McGrath and denied defendants qualified immunity on the basis of a legal conclusion.

2. Standard

Having jurisdiction, we "review[ ] de novo a district court's summary judgment determination on qualified immunity." Marshall v. Allen, 984 F.2d at 793, citing Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). While all inferences from the facts must be drawn in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986), summary judgment should be granted if the plaintiff cannot "present a version of the facts that is supported by the evidence and under which defendants would not be entitled to qualified immunity." Marshall, 984 F.2d at 793 (citing Hall v. Ryan, 957 F.2d 402, 404 (7th Cir.1992)). Plaintiff cannot rest on allegations but must "come forward with evidence that would reasonably permit the finder of fact to find in [plaintiff's] favor on a material question," otherwise the "court must enter summary judgment against [the plaintiff]." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994).

The doctrine of qualified immunity provides that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known." Baxter v. Vigo County School Corp., 26 F.3d 728, 737 (7th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). The Supreme Court fashioned the qualified immunity doctrine "in such a way as to 'permit the resolution of many insubstantial claims on summary judgment' and to avoid 'subject[ing] government officials either to the costs of trial or to the burdens of broad-reaching discovery' in cases where the legal norms the officials are alleged to have violated were not clearly established at the time." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (quoting Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2738). "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Id.

In order to defeat a claim of qualified immunity, a plaintiff must allege a cognizable violation of a constitutional right clearly established at the time of the alleged misconduct. Marshall, 984 F.2d at 793-94, accord Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Whether a right is clearly established is a question of law for the court to decide, Id. at 793, and plaintiff "bears the burden of establishing the existence of a clearly established constitutional right." Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988).

Clearly established rights are those which are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Marshall, 984 F.2d at 794 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). The law at the time of the conduct in question must have been "clear in relation to the specific facts confronting the public official when he acted." Id. (quoting Rakovich, 850 F.2d at 1209). "[U]ntil a particular constitutional right has been stated so that reasonably competent officers would agree on its application to a given set of facts, it has not been clearly established." Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1578, 118 L.Ed.2d 220 (1992).

This court should "look to whatever decisional law is available to ascertain whether the law has been clearly established." Rakovich, 850 F.2d at 1209. A " 'sufficient consensus based on all relevant case law, indicating that the officials' conduct was unlawful' is required." Henderson, 940 F.2d at 1058-59 (quoting Landstrom v. Illinois Dept. of Children & Family Serv., 892 F.2d 670, 676 (7th Cir.1990)). Further, even if the law is clearly established, an official is afforded the protection of qualified immunity if at the time of the challenged actions his belief that his actions were lawful is "objectively reasonable." Anderson, 483 U.S. at 641, 107 S.Ct. at 3040.

3. Analysis

In denying the defendants' Motion for Summary Judgment and concluding that the defendants are not entitled to qualified immunity, the district court found that "a clear precedent that a local ordinance granting employees substantive procedural protections creates a protected property interest in continued employment" was violated by defendants in terminating plaintiff's employment. The district court ruled and the plaintiff argues on appeal that as an Assistant Cook County State's Attorney he was a Cook County employee and therefore subject to the Cook County Rules Governing Employee Conduct ("Cook County Rules") which guaranteed to plaintiff certain procedural protections, including the right to be disciplined only for "just cause" and which gave him a property interest in continued employment. See Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1263 (7th Cir.1985) ("[P]ublic employees who cannot be dismissed except for cause have a property interest in their positions.").

The defendants contend that the plaintiff cannot state a due process claim because he had no property interest in continued employment. Specifically, the defendants argue that Assistant Cook County State's Attorneys are not employees of Cook County and therefore are not covered by the Cook County Rules. Since he was not covered by the Cook...