IV of the second amended complaint. Therefore, Count IV is
dismissed, with prejudice.
The defendants Blue Island Fire Department, Civil Service
Commission, and Fire Chief Schultz move to dismiss this count
for failure to state a claim. Fed.R.Civ.P., Rule 12(b)(6).
This is a state law claim, requesting the issuance of an order
to reinstate the plaintiff with back pay. The court's
ancillary jurisdiction is invoked.
Under the plaintiff's theory, his discharge violated the
rules of the Civil Service Commission, ¶ 4, Art. 6, because the
Commission did not make the required "investigation" of Chief
Schultz's reasons for discharging plaintiff. Klupt contends
that the Commission did not therefore "consent" to the
plaintiff's discharge within the meaning of Ill.Rev.Stat. ch.
24, § 10-1-14 (1977). Simply put, the Blue Island Civil Service
Commission did not make an "independent" inquiry into the facts
surrounding Klupt's discharge; rather, it relied on Schultz's
The defendants argue persuasively that there was no
procedural irregularity involving the Civil Service
Commission's approval of Schultz's decision to terminate the
plaintiff.*fn4 That being so, it is contended, the moving
defendants' conduct was properly authorized under Illinois law
and Count V of the complaint must be dismissed for failure to
state a claim. Alternatively, the defendants contend that this
court lacks jurisdiction to issue a writ of mandamus because
the sole forum for review of the Civil Service's determination
is the Administrative Review Act. Ill.Rev.Stat. ch. 110, § 264
et seq. Hence, defendants argue that plaintiff's failure to
file for review in the state circuit court within the requisite
time period bars suit in this court.
Because this court finds that Count V fails to state a claim
upon which relief can be granted, it is unnecessary to
determine whether Klupt's failure to seek administrative
review bars this mandamus petition.*fn5
Mandamus is an extraordinary remedy meant to compel the
performance of a public official's nondiscretionary
ministerial duty where the petitioner has established a clear
and indisputable right to issuance of the writ. See Will v.
United States, 389 U.S. 90, 103-04, 88 S.Ct. 269, 278, 19
L.Ed.2d 305 (1967). No new rights can be acquired in a mandamus
action, the purpose of which is to enforce rights already
vested in the plaintiff. Kramer v. City of Chicago, 58 Ill. App.3d 592,
16 Ill. Dec. 157, 374 N.E.2d 932 (1st Dist. 1978).
Consequently, mandamus is improper where the right of the
petitioner first must be established or the duty of an official
sought to be coerced must first be determined. Aiken v. Will
County, 321 Ill. App. 171, 52 N.E. 607 (2d Dist. 1943). Nor is
mandamus a substitute for judicial appeal. Kramer v. City of
This circuit has summarized three elements used to test the
propriety of issuing a writ of mandamus:
(1) the petitioner's clear right to the relief
(2) a plainly defined and preemptory duty on the
part of the respondent to do the act in
(3) the unavailability of other adequate
remedies. Holmes v. United States Board of
Parole, 541 F.2d 1343 (7th Cir. 1976).
The allegations of Count V, accepted as true for the
purposes of this motion, fail to state a claim because the
above elements are missing. The complaint alleges that Klupt's
discharge was an illegal violation of the Civil Service
Commission rules and Ill.Rev.Stat. ch. 24, § 10-1-14 (1977).
Yet, even assuming the plaintiff's theory is correct, it does
not follow automatically that the remedy for the alleged
violations is Klupt's reinstatement with back pay. Klupt's
right to this relief is not at all clear. Similarly, the issue
of the Commission's alleged duty to reinstate Klupt with back
pay is not appropriately considered on a petition for a writ of
mandamus unless performance of the act is clearly ministerial
and nondiscretionary. There are undoubtedly important policy
reasons for allowing the Commission to rely on Chief Schultz's
opinion of Klupt's fitness for permanent appointment to the
classified service. Illinois cases have held that matters of
promotion and discipline of police are within the discretionary
powers of supervisory officials and are not subject to mandamus
review. Piller v. Village of Beecher, 64 Ill. App.3d 887, 21
Ill.Dec. 665, 381 N.E.2d 1209 (3d Dist. 1978) and that a police
officer's mandamus action challenging public official's merit
selection procedures is inappropriate because of the
discretionary nature of the procedures. Lenert v. Wilson,
56 Ill. App.2d 325, 206 N.E.2d 294 (1st Dist. 1955). In the
instant case, the mere allegation that the Commission failed to
investigate the reasons for the discharge and thus gave an
uninformed consent to that discharge is an insufficient basis
for establishing the "plainly defined and preemptory duty"
required for mandamus.
Apparently, the plaintiff did not seek administrative review
of the Commission's alleged failure to adequately investigate
his discharge. As has been stated, mandamus is not a
substitute for appeal. Kramer v. City of Chicago, supra. It
should be noted, however, that if Klupt prevails on the merits
of his Title VII claim, he may be entitled to reinstatement and
back pay. See 42 U.S.C. § 2000e-5(g). Under the theory
presented in Count V, however, Klupt has not alleged a
cognizable claim for relief.
For the above reasons, the defendants' motion to dismiss
Count V is granted.
In summary, Count II of Klupt's second amended complaint is
dismissed with respect to defendant Helwig only, but denied
with respect to all other defendants named therein. Counts IV
and V are dismissed in their entirety, with prejudice.
It is so ordered.