O'DONNELL v. Village of Downers Grove

• Decision Date: 23 March 1987
• Docket Number: No. 86 C 6529.,86 C 6529.
• Citation: 656 F. Supp. 562
• Parties: Mark O'DONNELL, Plaintiff, v. VILLAGE OF DOWNERS GROVE, George P. Graves, and Roger Compton, Defendants.
• Court: U.S. District Court — Northern District of Illinois

656 F. Supp. 562

Mark O'DONNELL, Plaintiff, v. VILLAGE OF DOWNERS GROVE, George P. Graves, and Roger Compton, Defendants.

No. 86 C 6529.

United States District Court, N.D. Illinois, E.D.

March 23, 1987.

COPYRIGHT MATERIAL OMITTED

Lonny Ben Ogus, Carl M. Walsh, Chicago, Ill., for plaintiff.

Peter M. Rosenthal, Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago, Ill., for defendants.

MEMORANDUM ORDER

BUA, District Judge.

Plaintiff brought this action against multiple defendants. Plaintiff alleges that defendants deprived him of various constitutional rights. Plaintiff seeks relief under 42 U.S.C. § 1983 and a pendent common law claim.

Presently before this court is defendants' motion to dismiss plaintiff's 42 U.S.C. § 1983 claim for failure to state a claim upon which relief can be granted pursuant to Federal Rule 12(b)(6). The complaint is based on alleged violations of and conspiracy to violate the Fifth, Ninth, Tenth, and Fourteenth Amendments. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. For the reasons stated below, this court grants defendants' motion to dismiss plaintiff's claim.

FACTS

All well-pled facts are considered true for purposes of this motion.

Plaintiff was previously employed as a Village of Downers Grove probationary police officer. On March 1, 1986, plaintiff conferred with Police Officer Compton. During the conference, Compton accused plaintiff of writing a false police report. Compton ordered plaintiff to change his report or face termination. Plaintiff refused to alter his report. Subsequently, Compton told plaintiff's former employer that plaintiff had made false police reports. On May 5, 1986, plaintiff was terminated from his employment with the Village of Downers Grove because he allegedly wrote a false police report.

DISCUSSION

Count I — 42 U.S.C. § 1983

A. Village of Downers Grove

The Village of Downers Grove argues that the complaint fails to state a 42 U.S.C. § 1983 claim against it. The Village contends that the complaint insufficiently alleges that the plaintiff was deprived of a right guaranteed by the United States Constitution or by federal law as a result of a municipal officer acting in accordance with a custom or policy of the Village of Downers Grove. Moreover, defendant maintains that the single act of unconstitutional employment termination is insufficient to establish a municipal "policy." This court finds defendant's argument persuasive.

Several requirements must be met to state a claim for municipal liability pursuant to 42 U.S.C. § 1983. First, the complaint must allege that the plaintiff was deprived of a right secured by the Constitution or federal law. Second, the plaintiff must plead that the deprivation of this right was caused by a government official acting in accordance with a municipal policy or custom. Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In addition, boilerplate allegations of municipal policy, without sufficient factual allegations to support those assertions, do not state a § 1983 claim against a municipality. Rogers v. Lincoln Towing Services, Inc., 771 F.2d 194, 202 (7th Cir.1985). Finally, alleging a specific incident of constitutional deprivation and generally alleging that the deprivation resulted from a custom or policy does not constitute adequate pleadings; typically, a plaintiff must set forth a specific pattern or series of incidents that support the general allegation. Hossman v. Blunk, 784 F.2d 793 (7th Cir.1986).

In the instant case, plaintiff clearly satisfied the first pleading requirement when he alleged he was deprived of his constitutional rights. However, plaintiff failed to sufficiently plead the second requirement. Plaintiff does not satisfy the Monell "policy" requirement. The complaint does not allege that plaintiff's constitutional rights were deprived as a result of police officers acting in accordance with any municipal policy, custom, or practice. Moreover, plaintiff does not set forth a series of constitutional deprivations; plaintiff does not allege that the Village of Downers Grove previously deprived plaintiff or others of their constitutional rights. Plaintiff's complaint does not even present a boilerplate assertion of custom and policy.

Section 1983 liability may attach to a single incident of constitutional deprivation where a municipal officer implements a mandated course of action that was deliberately chosen from various alternatives by officers responsible for establishing final policy with respect to the subject matter in question. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Monell "policy" requirement is satisfied when enforcement of a direct command given by a municipal policymaker results in a constitutional deprivation. Count I contains no allegation that plaintiff's employment was terminated by an official who was responsible for establishing final policy with respect to employment termination.

The complaint generally states that plaintiff had been deprived of his constitutional rights, but does not mention who deprived him of these rights and whether he was deprived of these rights as a result of a direct command. In sum, plaintiff failed to allege his constitutional deprivation resulted from a municipal official acting in accordance with a municipal policy. Accordingly, this court dismisses the Village of Downers Grove from Count I.

B. Individual Defendants in their Official Capacity

Plaintiff chose to sue Chief of Police Graves and Police Officer Compton in their official capacities. Both defendants move to dismiss plaintiff's claim against them in their official capacities.

Actions for damages against a party in his official capacity are, in essence, actions against the municipality of which the officer is an agent. Monell v. New York City Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978). Thus, damages may be awarded against a defendant in his official capacity only if such damages would be available against the municipality itself. Brunken v. Lance, 799 F.2d 337, 340 (7th Cir.1986). A damage award must be satisfied by looking to the entity itself, rather than the official individually. The official cannot assert any personal immunity defense. Id. Defendants Graves and Compton cannot be liable in their official capacities since the complaint failed to allege that the constitutional deprivations emanated from the execution of any policy or custom established by the Village of Downers Grove. For these reasons, this court grants defendants Graves and Compton's motion to dismiss them in their official capacities from Count I.

C. Individual Defendants in their Personal Capacities

Plaintiff is required to satisfy two requirements to state a § 1983 claim against an individual. First, the complaint must allege that plaintiff was deprived of a federally protected right. Second, the plaintiff must allege that the person who deprived him of the federally protected right acted under the color of state law. Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 1922, 64 L.Ed.2d 572 (1980).

Neither party disputes that defendants acted under the color of state law. The central issue is whether plaintiff was deprived of a federally protected right.

Plaintiff argues that the defendants deprived him of his Fourteenth Amendment due process right. Plaintiff maintains a constitutionally protected liberty interest in his employment. Plaintiff asserts he had never been given any hearing to contest certain stigmatizing remarks made against him.

A Fourteenth Amendment due process claim would satisfy the second requirement of § 1983, that plaintiff was deprived of a federally protected right. Procedural due process guarantees apply to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of hearing is paramount. Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Plaintiff's liberty and property interests will be discussed separately.

A plaintiff is entitled to procedural due process guarantees of notice and hearing if that plaintiff is able to demonstrate that he has a property interest in continued employment. A property interest is not created by the Constitution. Rather, it is created by an independent source such as state laws, local ordinances or mutually explicit understandings. Id. at 577, 92 S.Ct. at 2709. To have a property interest in a benefit, a person clearly must have more than a unilateral expectation of it. A plaintiff must, instead, have a legitimate enforceable claim of entitlement to it. Roth at 577, 92 S.Ct. at 2709.

In the employment context, an employee has a due process property interest in a job where there are restrictions on how the employee can be terminated. For example, an employee has a property interest in continued employment if he cannot be terminated absent a showing of sufficient cause for discharge. However, a plaintiff has the burden of proving a legitimate enforceable claim of entitlement to his continued employment. Corbitt v. President & Board of Trustees, 103 Ill.App.3d 818, 59 Ill.Dec. 470, 431 N.E.2d 1227 (1981).

In the instant case, plaintiff makes an unsupported assertion that he had a "constitutionally protected liberty interest in his employment." This bald assertion is insufficient to entitle him to procedural due process guarantees of notice and hearing before termination of his employment. Plaintiff failed to allege properly his property interest in continued employment. Plaintiff does not allege that there were restrictions on how he could have been terminated. Plaintiff fails to identify any independent source that creates a property interest in his...