Simmons v. Gillespie
| Decision Date | 14 May 2012 |
| Docket Number | Case No. 11-cv-1384 |
| Parties | GREGORY SIMMONS, Plaintiff, v. TIMOTHY GILLESPIE, in his official capacity as Chief of Police for the City of Pekin, Illinois; JAMES WALLINGER, MICHAEL FRANKS, and DENNIS SHORT, in their official capacities as Commissioners for the Pekin Police and Fire Commission; THE CITY OF PEKIN; and THE PEKIN POLICE AND FIRE COMMISSION, Defendants. |
| Court | U.S. District Court — Central District of Illinois |
This matter is before the Court on Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 9). Plaintiff has responded in opposition to the Motion, and it is now ready for disposition. (Docs. 11 & 12). Defendant has also filed a Motion for leave to file a Reply brief, which the Court denies; no Reply is necessary for the Court to properly interpret the parties' arguments. (Doc. 13). For the reasons stated below, the Motion to Dismiss is granted in part.
"In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party." In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo v. Blagojevich,526 F.3d 1074, 1081 (7th Cir.2008)). To survive a motion to dismiss under 12(b)(6), a plaintiff's complaint must "plead some facts that suggest a right to relief that is beyond the 'speculative level.'" EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63 (2007)). Though detailed factual allegations are not needed, a "formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 547. "The complaint must contain 'enough facts to state a claim to relief that is plausible on its face.'" Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 602 (7th Cir. 2009) (quoting Twombly, 550 U.S. at 557; Tamayo, 526 F.3d at 1084).
On the other hand, "complaints need not anticipate and attempt to plead around defenses." U.S. v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (citing Gomez v. Toledo, 446 U.S. 635 (1980); United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003)). Dismissal on statute of limitations grounds should only be granted where the "plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint's tardiness." Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559 F.3d 671, 674-75 (7th Cir. 2009) ().
Plaintiff's Complaint alleges that he, a Pekin Police officer, was removed from duty by Defendant Gillespie on March 23, 2006, and returned him to workSeptember 15, 2008. Plaintiff lost wages and benefits while off-duty during this period.
On March 23, 2007, Defendant Gillespie proffered charges of misconduct relating to incidents in 2006 and 2007 against Plaintiff to the Defendant Pekin Police and Fire Commission, and seeking his termination. The Defendant Commission held a hearing on these charges between July 18 and 25, 2007. On November 21, 2007, the Defendant Commission issued its decision. Defendants Wallinger, Franks, and Short, acting as Commissioners for the Defendant Commission, imposed a 20-day suspension on Plaintiff, apparently as a result of these charges, but did not decide the issue of Plaintiff's mental fitness to return to work, and so Plaintiff could not return to work. Plaintiff appealed the Commission's decision, and the Illinois Appellate Court ruled in Plaintiff's favor on October 13, 2009, vacating the 20-day suspension.
On October 2, 2007, Defendant Gillespie ordered Plaintiff to undergo a psychological evaluation. Defendant Gillespie proffered a second set of charges against Plaintiff to the Defendant Commission on October 19, 2007, again alleging misconduct and seeking Plaintiff's termination. The Defendant Commission found in Plaintiff's favor on the second set of charges on February 6, 2008; this decision was affirmed on administrative review, and Defendant Gillespie did not appeal to the Appellate Court. On February 6, 2008, the Defendant Commission declined to allow Plaintiff to return to work. Defendant Gillespie rescinded his order of suspension on September 15, 2008, and allowed Plaintiff to return to work.
Plaintiff's Complaint alleges that, between March 24, 2006 and September 15, 2008, Defendants denied him his protected liberty and property interests in his employment without due process of law in violation of 42 U.S.C. § 1983, and that they conspired to so deprive him in violation of 42 U.S.C. § 1985. In addition, because Illinois law states that if charges against a police officer are not sustained the officer is to be reimbursed for all wages withheld,1 and because Plaintiff alleges that he has never been reimbursed for the wages, Plaintiff appears to claim, under 42 U.S.C. § 1983, an unconstitutional deprivation of his protected property interest in reimbursement. He also appears to claim that Defendants conspired to commit this violation of Plaintiff's right to reimbursement in violation of 42 U.S.C. § 1985. Finally, Plaintiff appears to raise contractual and personal injury claims relating to his suspension from duty.
Defendants assert that Plaintiff's Complaint should be dismissed on two grounds: it is barred by the statute of limitations, and it otherwise fails to state a claim upon which relief can be granted.
As noted above, ordinarily, the statute of limitations presents an affirmative defense that the plaintiff's complaint need not anticipate and defeat. However, where the complaint itself reveals that the statute of limitations bars the suit, dismissal prior to discovery is appropriate. Cancer Foundation, 559 F.3d at 674-75.Defendant asserts that even the most recent of Plaintiff's claims alleges violations that occurred in September 2008, more than three years before his October 13, 2011 Complaint, and that some of the claims are based on events over five years prior to the initiation of this suit. Plaintiff counters with the argument that, because he was required to exhaust his administrative remedies before filing suit, his claim did not accrue until at least October 13, 2011.
First, the Court must determine what statute of limitations applies. Both § 1983 and § 1985 suits "borrow" a comparable statute of limitations from the law of the state in which the district court sits. See Wilson v. Geisen, 956 F.2d 738, 741 fn. 4 (7th Cir. 1992) (citations omitted). The parties dispute whether the Court should look to Illinois' one-year statute of limitations applicable to suits against local governmental entities, or its two-year statute of limitations applicable to other personal injury suits, for some of the claims. Defendants assert that since Plaintiff's claims are only against the individual Defendants in their "official capacities" and against two local governmental entities, the Illinois limitations period of one year for local governmental entity suits established by the Illinois Local Governmental and Governmental Employees Tort Immunity Act is applicable. (Doc. 10 at 4-5 (citing 745 ILCS 10/8-101)). Plaintiff claims that this is a "municipal tort immunity statute," which cannot constitute a defense to a civil rights suit. (Doc. 12 at 2 (quoting Weiss v. Village of Downers Grove, 588 N.E.2d 435, 469-70 (Ill. App. Ct. 1992)). In Palmer v. Board of Educ. Of Community Unit School Dist. 201-U, Will County, Ill., the Seventh Circuit cited Weiss in confirming that 46 F.3d 682, 684 (7th Cir. 1995) (citing Dixon v. Chrans, 986 F.2d 201 (7th Cir. 1993)). Therefore, the Court applies the Illinois' general two-year statute of limitations.
Insofar as Plaintiff asserts claims to relief arising from Defendants' decisions to keep him off-duty, the most recent of which was in September 2008, Plaintiff's claims must be dismissed as barred by the statute of limitations, as his suit was not filed until October 2011, well beyond even the two-year statute of limitations. Plaintiff's Complaint and his Response to the Motion to Dismiss seem to show that he wishes to pursue claims against Defendants for "wrongfully depriv[ing him] of his right to work" prior to October 2009. (Doc. 12 at 6-7 (quoting McCoy v. Kamradt, 483 N.E.2d 544, 550 (Ill. App. Ct. 1985)); (Doc. 1 at 5). The Court takes these allegations as a due process claim or claims against Defendants for their decisions that imposed and sustained his suspension from work, as well as their actions relating to the charges of misconduct against him, all occurring "between March 24, 2006 and September 15, 2008." (Doc. 1 at 5).
Plaintiff asserts that this claim did not accrue until the Appellate Court's October 13, 2009 decision in his favor. The Court does not agree, and Plaintiff's cited authority does not support his argument on this point. If Defendants' actions or decisions unconstitutionally denied him of due process, that claim accrued as soon as Plaintiff knew of them; Plaintiff does not allege any delay in his learning ofthe decisions. See Wilson, 956 F.2d at 740 (citing Delaware State College v. Ricks, 449 U.S. 250 (1980); Barrett v. United States, 689 F.2d 324 (2d Cir. 1982); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.1971)) ("Civil rights claims...accrue when the plaintiff knows or...
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