The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiffs, William, Lorraine, Mark and Jerrald Benson brought
this action under 42 U.S.C. § 1983 against defendants Robert
Allphin, Robert Whitler, Daniel Lenckos, George Rummel, John
Gallagher, Philip Mitchel, Michael Berry, Robert Motta, George
Diaz, William Troller and various unknown others, all former
officials or employees of the Illinois Department of Revenue.
William Benson, a former Investigator for the Department of
Revenue, alleges in Count I of his complaint in 77 C 3712 that
following his discharge from employment with the Department,
defendants conspired to harass him in retaliation for his
exercise of First Amendment rights in connection with his
disclosure of particular improprieties in the collection of
cigarette taxes by Department of Revenue officials. Lorraine,
Mark and Jerrald Benson allege that they were also victimized
by overt acts carried out by Diaz and Troller and various
unknown defendants. Plaintiffs seek declaratory relief and
$14,000,000 in punitive damages. William Benson alleges in
Count II of his complaint in 77 C 3713 that he was fired from
his position with the Department of Revenue without due process
of law and in retaliation for his disclosures to other law
enforcement agencies and the news media. Benson seeks
declaratory relief, reinstatement, restitution and punitive
damages in Count II.
Presently before the Court are defendants' motions to strike
certain allegations contained in Count I and for summary
judgment on the balance of Count I. Defendants have also moved
for summary judgment on Count II of the complaint. For the
reasons discussed below, defendants' motion to strike and their
motion for summary judgment on Count II will be denied.
Defendants' motion for summary judgment on Count I will be
granted in part and denied in part.
I. Defendants' Motion to Strike Certain Allegations of Count
I in 77 C 3713
Defendants first seek to strike plaintiffs' allegations that
Allphin, Motta, Mitchel, Berry, Rummel, Gallagher, Diaz and
Troller conspired to harass and punish William Benson for his
disclosures concerning the Department of Revenue's alleged
improprieties by falsely stigmatizing him publicly as a
"confidential informant."*fn1 Defendants' motion is
predicated on the general principle, established by the Supreme
Court in Paul v. Davis, 424 U.S. 693,708-710, 96 S.Ct. 1155,
L.Ed.2d 405 (1976), that defamation by a state official does
not constitute an actionable claim under § 1983 unless it
occurs in conjunction with the plaintiff's termination of
employment. In the present case, defendants argue that the
defamation could not have occurred in conjunction with the
termination of William Benson's employment because the
defamation occurred several months after the termination.
Accordingly, defendants contend, these allegations must be
stricken as insufficient to state a claim for relief under §
Defendants' argument is misconceived for several reasons.
First, the Supreme Court's decision in Paul v. Davis does
not, as defendants suggest, establish that defamation rises to
the level of an actionable claim under § 1983 only when
accompanied by a termination of plaintiff's employment.*fn2
Rather, Paul established that because individuals do not
normally enjoy a constitutionally cognizable liberty or
property interest in their good name or reputation, 424 U.S. at
712, 96 S.Ct. at 1165, defamation by a state official acting
under color of law does not, standing alone, rise to the level
of a constitutional deprivation for purposes of § 1983. The
stigma resulting from official defamation must itself result in
a further deprivation of a right otherwise protected by the
Bill of Rights or state law. 424 U.S. at 710-712, 96 S.Ct. at
1164-1165. Accordingly, this Circuit and others have devised a
"stigma-plus" standard against which to measure the sufficiency
of a plaintiff's defamation claim under § 1983. Moore v.
Otero, 557 F.2d 435, 437 (5th Cir. 1977); Sullivan v. Brown,
544 F.2d 279, 283-84 (6th Cir. 1976); Colaizzi v. Walker,
542 F.2d 969, 973-74 (7th Cir. 1976), cert. denied, 430 U.S. 960,
97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); Stretten v. Wadsworth
Veterans Hospital, 537 F.2d 361, 365-66 (9th Cir. 1976). The
"plus" required under this standard typically includes, but is
not limited to, the termination of plaintiff's employment.
In the present case, the "plus" associated with defendants'
allegedly stigmatizing charge is the deprivation of William
Benson's First Amendment right to disclose the improprieties of
the Illinois Department of Revenue. The deprivation alleged in
the complaint results from defendants' retaliation against
William Benson for the exercise of his First Amendment rights
in the past as well as the continuing threat of future
retaliations for future disclosures. An official act in
retaliation for the exercise of a constitutionally protected
right is actionable under § 1983, even if the act, when taken
for a different reason, might otherwise have been proper.
Mount Healthy Board of Education v. Doyle, 429 U.S. 274, 283,
97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Buise v. Hudkins,
584 F.2d 223, 229-30 (7th Cir. 1978), cert. denied,
440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979).
II. Defendants' Motion for Summary Judgment on Count I in 77
Defendants seek summary judgment on those portions of Count I
allege that the conspiracy to harass plaintiffs was carried
out, in part, by "unknown defendants" who committed various
hostile acts against William, Jerrald, Mark and Lorraine
Benson.*fn3 Although this case was filed five years ago and
extensive discovery has taken place since that time, plaintiffs
have failed to produce any evidence concerning either the
identity of these unknown defendants or their connection to the
named defendants.*fn4 While the nonmoving party plaintiffs
are entitled to all reasonable inferences in their favor on a
motion for summary judgment, plaintiffs cannot create an issue
of material fact through conjecture or speculation as to what
evidence might be adduced at trial or what might be turned up
by still further discovery. Abiodun v. Martin Oil Service,
Inc., 475 F.2d 142, 144 (7th Cir.), cert. denied,
414 U.S. 866, 94 S.Ct. 57, 38 L.Ed.2d 86 (1973); Automotive Wholesalers
of Illinois v. National Union Fire Insurance Company of
Pittsburgh, 501 F. Supp. 1205, 1211-12 (N.D.Ill. 1980). See
generally Fed.R.Civ.P. 56(e). Without any evidence connecting
these overt acts to either the named defendants or to the
conspiracy alleged in the complaint, the mere occurrence of
hostile acts against the Bensons does not support the finding
of a conspiracy involving the named defendants.*fn5 Cf.
Hickey v. New Castle County, 428 F. Supp. 606, 611 (D.Del.
1977). Accordingly, the Court will grant summary judgment to
the named defendants as to their liability under plaintiff's
conspiracy allegations for acts perpetrated
against the Bensons by unknown defendants.*fn6
Defendants also seek summary judgment on those portions of
Count I which allege that defendants Diaz and Troller conducted
surveillance of the Bensons including, presumably, Jerrald,
Mark and Lorraine Benson as well as William Benson; assaulted
Mark and Lorraine Benson; drew a service revolver and used vile
language against Mark Benson; and issued and prosecuted a
traffic citation against Mark Benson in bad faith. Amended and
Supplemental Complaint, ¶ 19, g, h, i, j, k, l, n, o, p.
Defendants argue that Jerrald, Mark and Lorraine Benson, even
if the victims of defendants' conspiracy to harass William
Benson, lack standing to sue derivatively for the alleged
deprivation of William Benson's First Amendment rights.
Plaintiffs contend, on the other hand, that Diaz and Troller's
conduct deprived Jerrald, Mark and Lorraine Benson of their own
constitutional rights, independent of these rights allegedly
deprived William Benson. Specifically, Jerrald, Mark and
Lorraine Benson allege that defendants' conduct deprived them
of the "right to be free in their persons, house, papers, and
effects from unreasonable searches and seizures."*fn7
Amended and Supplemental Complaint, ¶ 20.
Plaintiffs' conclusory allegations concerning the nature of
their personal deprivation are not sufficient to state a claim
upon which relief can be granted under § 1983.*fn8 Jerrald,
Mark and Lorraine Benson do not explain how their Fourth
Amendment rights were threatened by defendants' conduct.
Indeed, as described in the complaint, the overt acts taken by
Diaz and Troller against these plaintiffs do not constitute
either a search or a seizure. Moreover, much of the conduct
alleged, although possibly tortious under state law, does not
rise to the level of a constitutional deprivation actionable
under § 1983 when considered independently of William Benson's
First Amendment claim. Cf. Sheffey v. Greer, 391 F. Supp. 1044,
1046 (E.D.Ill. 1975). Finally, as defendants correctly
point out, plaintiffs' complaint seeks relief only for the
deprivation of William Benson's First Amendment rights, not the
Fourth Amendment rights of Jerrald, Mark and Lorraine Benson.
Accordingly, the Court will dismiss Jerrald, Mark and
Lorraine's claims against the defendants.*fn9
III. Defendants' Motion for Summary Judgment on Count II in
77 C 3713
The principle is well established that summary judgment is
generally inappropriate in cases involving questions of motive
or intent. Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 919
(7th Cir. 1974). Disposition by summary judgment is
particularly inappropriate where, as here, the complaint
involves delicate constitutional rights, complex fact
situations, disputed testimony and questionable credibilities.
Porter v. Califano, 592 F.2d 770, 778 (5th Cir. 1979).
Because the motive behind Allphin's decision to terminate
Benson is critical to resolution of this case, Mount Healthy
City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct.
568, 576, 50 L.Ed.2d 471 (1977), and because the affidavits
submitted by each side are directly contradictory on the extent
of Benson's ...