United States District Court, Northern District of Illinois, E.D
January 13, 1983
SAMUEL COLEMAN, PLAINTIFF,
RICHARD BALLENTINE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Samuel Coleman ("Coleman") has sued the Village of Robbins
("Robbins"), three Robbins officials and Cook County Deputy
Sheriff Al Fiorenzo ("Fiorenzo") under 42 U.S.C. § 1983
("Section 1983").*fn1 Coleman alleges various violations of
his constitutional rights in connection with his termination as
a Robbins Special Investigator. Robbins and its three officials
(solely for convenience termed "defendants," even though
Fiorenzo has not joined in the motion) have moved to dismiss.
For the reasons stated in this memorandum opinion and order,
defendants' motion is granted in part and denied in part.
Coleman became a Robbins police officer in 1948 and served
for many years thereafter. Beginning sometime in 1970 and
until December 1, 1977 he was employed on a part-time basis
for special police projects. Throughout the entire period
Coleman had the duties and powers of a sworn police officer.
On December 1, 1977 Robbins' Board of Trustees (the "Board")
appointed Coleman Special Investigator to probe for corruption
in the Robbins police force. Coleman found evidence of
widespread police corruption and implications of the
involvement of Robbins Mayor Marion Smith ("Smith"). In April
1978 Coleman reported his findings to the Board and to the
Cook County State's Attorney.
In an effort to suppress the investigation, Smith fired
Coleman and abolished the Robbins police force, calling on the
Cook County Sheriff's police to patrol Robbins. Smith acted
without Board approval or authority.
Despite Smith's actions Coleman continued to perform his
duties. In November 1978 the Board renewed Coleman's
appointment, but Smith unlawfully refused to sign
the renewal ordinance or the official permit identifying
Coleman as a police officer and authorizing him to carry a
weapon. At about that time Smith and unknown Robbins Trustees
began destroying documents relating to Coleman's appointment
and activities as Special Investigator.
Sometime in 1979 Robbins police officers who had been
discharged by Smith were reinstated with back pay, but Coleman
has repeatedly been refused back pay. Coleman continued his
activities as Special Investigator through spring 1979.
On April 3, 1979 Coleman responded to a local businessman's
report that Robbins Chief of Police Gordon Frierson
("Frierson") had attempted to obtain free services for Robbins
police officers. Coleman investigated the matter and reported
to the Board, which reprimanded Frierson. Before becoming
Robbins police chief, Frierson had been the Cook County
Sheriff's Deputy charged with patrolling Robbins in place of
the disbanded Robbins police force.
Smith, Frierson and Fiorenzo and unknown others then
conspired to harass and discredit Coleman. Pursuant to that
conspiracy, on June 22, 1979 Fiorenzo arrested Coleman in his
home without a warrant and caused him to be charged with
wrongfully impersonating a police officer. In July 1979 a Cook
County Circuit Court judge dismissed the charges against
Coleman's Section 1983 Claims
True, Coleman's Complaint is none too clear in setting forth
his Section 1983 contentions.*fn3 Nevertheless claims along
these lines can be inferred:
1. Smith terminated Coleman's employment as
Special Investigator in retaliation for Coleman's
exercise of his First Amendment*fn4 right to
report to the proper authorities the illegal
activities he had discovered.
2. Frierson retaliated against Coleman for
reporting Frierson's improprieties, by conspiring
with Smith and Fiorenzo to arrest Coleman
3. Fiorenzo unlawfully arrested Coleman
pursuant to that conspiracy with Smith and
4. Smith and Frierson acted in accordance with
Robbins policy and customs.
5. Robbins, Smith and Robbins Mayor Richard
Ballentine*fn5 denied Coleman's due process
rights by failing to provide him with a hearing
either before termination or in connection with
his repeated requests for reinstatement and back
Coleman asks $1 million in compensatory and $1 million in
punitive damages, plus an award of attorneys' fees. Joint and
several liability is asserted against Robbins and the
1. Retaliatory Termination
Coleman says Smith fired him in retaliation for his
investigation into and his reporting of corruption in Robbins'
police force and in Smith's own office. That asserts:
(1) loss of a position to which Coleman was
legally appointed,*fn6 not merely the
loss of reputation; cf. Paul v. Davis,
424 U.S. 693, 710-12, 96 S.Ct. 1155, 1164-66, 47 L.Ed.2d 405
(1976) (holding defamation by a state official,
standing alone, does not rise to the level of a
constitutional deprivation under Section 1983); and
(2) loss of that position in violation of
Coleman's First Amendment right to report the
improprieties of public officials.*fn7
Even if Coleman's termination might not have implicated
federal rights if ordered for another reason,*fn8
allegations state an actionable Section 1983 claim against
Smith. See Benson v. Allphin, 544 F. Supp. 464
, 467 (N.D.Ill.
2. Conspiracy and Retaliatory Unlawful Arrest
"Conspiracy" alone does not trigger Section 1983 liability.
As Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982)
recently put it:
Section 1983 does not, however, punish
conspiracy; an actual denial of a civil right is
necessary before a cause of action arises.
But here Coleman has alleged actual unlawful arrest pursuant
to a conspiracy among Smith, Frierson and Fiorenzo.*fn9
involves infringement of Fourth Amendment rights and thereby
states a Section 1983 claim. See Zurek v. Woodbury, 446 F. Supp. 1149,
1151 (N.D.Ill. 1978), citing Joseph v. Rowlen,
402 F.2d 367
(7th Cir. 1968). Moreover, the earlier analysis suggests
Frierson's retaliation for Coleman's report on him (the latter
an exercise of First Amendment rights) is also actionable under
3. Robbins Policy or Custom
Monell v. Department of Social Services, 436 U.S. 658, 691,
694, 98 S.Ct. 2018, 2036, 2037, 56 L.Ed.2d 611 (1978) teaches a
municipality can be liable for unconstitutional actions of its
employees that implement an official custom or policy.
Complaint ¶¶ 38-39 recite the magic words, and this Court might
ordinarily regard them as sufficient to tar Robbins with the
brush of Smith's and Frierson's retaliatory actions. See
Thompson v. Village of Evergreen Park, 503 F. Supp. 251, 252
Here, however, the formula recital is specifically negated
by Complaint ¶¶ 14, 16-17 and 21, which dissociate Smith's and
Frierson's actions from those of the Board.*fn10 Accordingly
the Complaint fails to state a Section 1983 claim against
Robbins for Smith's and Frierson's retaliatory actions, the
termination or the unlawful arrest.
4. Due Process Hearings
Complaint ¶¶ 42-44 claim Robbins, Smith and Ballentine
violated Coleman's rights to a hearing before his termination
and in connection with his quest for reinstatement. That claim
against Robbins does not have to charge a municipal policy, for
it depends on a direct due process violation
by Robbins. Nevertheless the claim fails not only against
Robbins but against Smith and Ballentine as well.
Under Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077,
48 L.Ed.2d 684 (1976) state law determines whether a person has
a cognizable "property" interest in public employment. Coleman
does not allege the state law source of his authority as
Special Investigator or any state law protection of his
employment in that position. See Def. R. Mem. [3-5]. In fact,
Complaint ¶¶ 8-10 suggest Coleman had an ad hoc appointment by
the Board after December 1, 1977, without any guaranty of
continued employment and without any restriction on his
removal. Clearly Coleman's allegations do not meet the pleading
requirements implicit in Bishop.*fn11
It follows a fortiori Coleman has not alleged facts showing
any cognizable right to a hearing on his request for
reinstatement and on his other grievances. And because all the
allegations (Complaint ¶¶ 37, 44) as to Ballentine's acts are
bound up in Coleman's quest for reinstatement, the Complaint
fails to state any actionable claim against Ballentine at all.
Defendants' motion to dismiss is granted as to all claims
against Robbins and Ballentine. Both state claims (the
Complaint's Second and Third Claims) are also dismissed.
Defendants' motion is denied as to claims (1) against Smith
for retaliatory termination and unlawful arrest and (2)
against Frierson for unlawful arrest. Coleman's claims against
Fiorenzo for unlawful arrest have not been challenged here and
also stand. Defendants are ordered to answer those remaining
claims on or before January 27, 1983.