United States District Court, Northern District of Illinois, E.D
October 18, 1983
THOMAS J. ALBAMONTE, PLAINTIFF,
JAMES BICKLEY, CHIEF OF POLICE OF THE VILLAGE OF FRANKLIN PARK, AND BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF FRANKLIN PARK, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendants' motion to dismiss the Amended
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. For the reasons stated herein, defendants'
motion to dismiss is granted.
I. Procedural History
On February 11, 1980, Thomas Albamonte filed this action
against his former employers, James Bickley, Chief of the
Franklin Park Police Department, and the Board of Fire and
Police Commissioners of the Village of Franklin Park ("the
Board"). On June 4, 1980, the Court, upon defendants' motion,
dismissed Albamonte's complaint with prejudice for failure to
state a claim. In an unpublished opinion dated October 7, 1982,
the Court of Appeals for the Seventh Circuit reversed this
Court's June 4, 1980 decision and remanded the case for further
proceedings. Although not disagreeing with this Court's ruling
that Albamonte's original complaint failed to state an
actionable claim, the Court of Appeals held that it was error
to deny Albamonte an opportunity to amend his complaint
pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
Accordingly, the case was remanded to permit Albamonte to amend
his complaint in an attempt to plead a cognizable cause of
Since remand, Albamonte filed an Amended Complaint on February
18, 1983. After defendants filed a motion to dismiss the
Amended Complaint, Albamonte filed a motion for leave to file a
Second Amended Complaint. Albamonte withdrew his motion on
August 4, 1983. On August 18, 1983, Albamonte filed
"amendments" to the Amended Complaint. The Amended Complaint,
filed February 18, 1983, and as "amended" August 18, 1983, is
now before the Court on defendants' renewed motion to dismiss.
The following facts are alleged in the Amended Complaint
(including "amendments" filed August 18, 1983). For purposes of
this motion, the Court assumes they are true. City of
Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976).
Prior to November 7, 1979, Albamonte was employed as a
patrolman for the Village of Franklin Park Police Department.
His status on the force was probationary. On October 17, 1979,
while off duty, Albamonte's vehicle was struck by a hit-and-run
driver. During Albamonte's pursuit of the driver, his gun
accidentally discharged. The bullet struck the ground.
On October 25, 1979, Albamonte was contacted by his supervisors
in conjunction with Albamonte's failure to report the discharge
to his superiors. Although Albamonte initially denied that his
weapon had discharged, on October 26, 1983, he admitted to his
superiors that the incident occurred. On November 7, 1983,
Bickley advised Albamonte that the Board, at a closed meeting,
had decided to terminate Albamonte's employment. Bickley then
informed Albamonte that Albamonte had the choice of resigning
or being fired. Albamonte chose resignation and signed a
resignation letter that was prepared by Bickley. Although
Albamonte later attempted to revoke his resignation, Bickley
did not honor his request.*fn1
After his termination, Albamonte applied for unemployment
compensation benefits from the Illinois Department of Labor. On
November 19, 1979, the Village of Franklin Park, through its
attorney, filed an objection to Albamonte's claim. In its
two-page letter to the Illinois Department of Labor, the
Village falsely stated that Albamonte was discharged from his
job because of
criminal conduct.*fn2 After the Department of Labor issued
its decision, the Village filed an appeal on December 9, 1979.
The appeal constituted a three-page letter addressed to the
Department of Labor. In that letter, the Village falsely
accused Albamonte of
failing to file reports, misstating and prevaricating about
occurrences under investigation, using obscene and abusive
language, and brandishing and discharging his service revolver
in a manner likely to cause death or great bodily injury
without legal justification.
Amended Complaint, filed August 18, 1983, Exhibit D, at 2. On
January 10, 1980, the Department of Labor ruled that Albamonte
was discharged from the police force due to misconduct on the
job and therefore not eligible for benefits from November 4,
1979, through December 15, 1979.
Albamonte now seeks the following relief: (1) a "name clearing
hearing" for the purpose of correcting his personnel and
unemployment compensation records; (2) a declaratory judgment
that defendants' conduct deprived Albamonte of a liberty
interest in violation of the Fifth and Fourteenth Amendments;
(3) an order rescinding Albamonte's resignation and (4) an
award of costs and attorneys' fees.
The Fourteenth Amendment prohibits a state from depriving a
person of life, liberty or property without due process of law.
In addressing Albamonte's procedural due process claim, the
Court must undertake a two-step analysis. First, it must be
determined whether Albamonte's interest rises to the level of a
constitutionally protected "liberty" or "property" interest. If
either interest is implicated, the Court must then weigh the
competing interests of the individual and the state in order to
determine "what process is due." Larry v. Lawler,
605 F.2d 954, 957 (7th Cir. 1978).
Albamonte correctly makes no claim that he was denied a
protected property interest without due process of law. As this
Court held in its June 4, 1980 opinion, and as the Court of
Appeals agreed, Albamonte, as a probationary police officer,
was subject to summary dismissal without cause. See Romanik v.
Board of Fire and Police Commissioners of East St. Louis,
61 Ill.2d 422, 338 N.E.2d 397 (1975).
To state a claim for deprivation of a liberty interest,
Albamonte must satisfy the "stigma plus" test as articulated in
Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1971) and Paul v. Davis, 424 U.S. 693, 96 S.Ct.
1155, 47 L.Ed.2d 405 (1976). That test has two parts. First,
the plaintiff must be stigmatized by the State's conduct. Such
"stigma" must amount to a charge that is likely to seriously
damage the plaintiff's "good name, reputation, honor, or
integrity" in the eyes of the community. Roth, 408 U.S. at
573, 92 S.Ct. at 2707 (quoting Wisconsin v. Constantineau,
400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1970)).
Second, in addition to the infliction of stigma, a plaintiff
must suffer tangible loss in conjunction with the infliction of
the "stigma." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct.
1155, 1160, 47 L.Ed.2d 405 (1975).
Albamonte argues that the two letters drafted by the attorney
for the Village of Franklin Park and sent to the Illinois
Department of Labor "stigmatized" him in the eyes of the
community. Falsely accusing someone of criminal conduct is
sufficient to satisfy the first part of the Roth "stigma
plus" test. See Margoles v. Tormey, 643 F.2d 1292, 1299 (7th
Cir. 1981). In addition, although not articulated by Albamonte,
the Court infers three possible "tangible losses" suffered in
conjunction with the defendants' stigmatizing statements.
First, Albamonte may have been fired as a probationary
patrolman in conjunction with the defendants' defamatory
statements. Second, Albamonte may have been denied unemployment
benefits in conjunction with the defendants' defamatory
statements. Finally, Albamonte may have been denied future
employment opportunities in conjunction with the defendants'
defamatory statements. Each possible theory is addressed below.
A. Albamonte's Loss of Employment As A Probationary
Relying upon Roth and Paul, supra, the Seventh Circuit has
stated that stigma to reputation "in conjunction with"
dismissal from state employment is sufficient to state a claim
under the Roth "stigma plus" test. Margoles v. Tormey,
643 F.2d 1292, 1298 (7th Cir. 1981); Colaizzi v. Walker,
542 F.2d 969, 973 (7th Cir. 1976). Therefore, if Albamonte is able to
allege that his discharge from the Franklin Park Police
Department was done "in conjunction with" the defendants'
stigmatizing statements, he has stated a claim under the
In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d
684 (1975), the plaintiff was discharged as a probationary
policeman and asserted that his employer had denied him a
liberty interest under the Roth "stigma plus" test.
Specifically, the plaintiff charged that his superiors made
false statements concerning the plaintiff's reputation on two
occasions. First, the defendants made false statements directly
to the plaintiff at the time of his discharge and second, the
defendants made false statements after the discharge in their
answers to interrogatories. The Court held that neither
communication was actionable. First, the statements made
directly to the plaintiff, according to the Court, were not
public and therefore "cannot properly form the basis for a
claim that petitioner's interest in his `good name, reputation,
honor, or integrity' was thereby impaired." Id. at 348, 96
S.Ct. at 2079 (quoting Wisconsin v. Constantineau,
400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). Second, the
defendants' statements made in their answers to interrogatories
after the plaintiff's discharge were not actionable because
they "did not cause the discharge." Id. 426 U.S. at 349, 96
S.Ct. at 2079. The Court concluded that, "[a] contrary
evaluation . . . would enable every discharged employee to
assert a constitutional claim merely by alleging that his
former supervisor made a mistake." Id.
Bishop is controlling in the instant case. Like the
defendants' answers to interrogatories, the two letters sent to
the Department of Labor were sent after Albamonte's
discharge. Accordingly, it is impossible that any statements
made in these letters contributed to Albamonte's discharge.
Therefore, defendants' allegedly stigmatizing statements were
not made "in conjunction with" Albamonte's loss of employment
as a probationary policeman for the Village of Franklin
B. Albamonte's Loss of Unemployment Compensation Benefits
The second possible theory for Albamonte is that defendants'
defamatory statements were made "in conjunction with"
Albamonte's loss of unemployment benefits. Albamonte relies
upon Larry v. Lawler, 605 F.2d 954 (7th Cir. 1978), and
argues that "[t]he actions of the defendants, by sending false
information to the Illinois Unemployment Compensation Board
concerning the plaintiff's discharge, stigmatized the
plaintiff, in that he was wrongfully deprived of these benefits
without a due process hearing." Plaintiff's Memorandum, at 2.
Larry, however, is not dispositive of the issue. In Larry,
the plaintiff sued the Civil Service Commission because it had
published false statements regarding the plaintiff's use of
beverages. In addition to publishing the false statements, the
Commission rated Larry "ineligible" for federal employment. The
Commissioner's determination barred Larry from all federal
employment for three years. Id. at 956. Based on these facts,
the Court held that Larry had stated an actionable claim under
the Roth "stigma plus" test. Id. at 959.
Unlike Larry, the defendants in the instant case have not
deprived Albamonte of a tangible loss such as unemployment
compensation benefits. Margoles v. Tormey, 643 F.2d 1292 (7th
Cir. 1981) is more closely analogous than Larry. In
Margoles, the plaintiff, a physician, alleged that the
Wisconsin Board of Medical Examiners forwarded false
information concerning the plaintiff to the Illinois medical
licensing board which resulted in the plaintiff being denied an
Illinois license. The Court held that such allegations were
insufficient to state a claim under the "stigma plus" test
because the Wisconsin defendants were "not connected with any
denial of a government benefit or privilege, i.e., licensure."
Id. at 1299. The Court concluded that, absent allegations of
a conspiracy, Illinois' decision to deny the plaintiff a
license was "separate and distinct from any defamatory
statements made by these Wisconsin officials." Id.
In the instant case, the Illinois Department of Labor denied
Albamonte unemployment benefits. No conspiracy has been alleged
between the present defendants and the Department of Labor. In
fact, the Department of Labor is not a party to this case. As
in Margoles, supra, Albamonte's claim is reduced to a claim
for defamation. However, "defamatory statements by public
officials, standing alone, are insufficient to state a claim
under § 1983." Margoles, 643 F.2d at 1299. See also Bishop
v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976);
Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405
C. Albamonte's Denial of Future Employment Opportunities
Albamonte's third possible theory merits little discussion.
Without supporting facts, Albamonte alleges that the
defendants' stigmatizing reports "are in the plaintiff's
permanent personnel file thereby foreclosing future employment
opportunities." Amended Complaint, as amended August 18, 1983,
¶ 32. Even assuming Albamonte could amend his complaint to aver
facts supporting this allegation, such an allegation would
nevertheless fail to state an actionable claim. Albamonte's
failure to obtain future employment is the result of an
independent decision by someone other than these defendants.
Absent allegations of conspiracy, merely pleading defendants'
defamatory statements and another party's decision not to hire
Albamonte is not actionable under § 1983. See Paul v. Davis,
424 U.S. 693, 704, 96 S.Ct. 1155, 1162, 47 L.Ed.2d 405 (1975);
Margoles v. Tormey, 643 F.2d 1292, 1299 (7th Cir. 1981);
Adams v. Walker, 492 F.2d 1003, 1008-09 (7th Cir. 1974).
For the reasons stated herein, defendants renewed motion to
dismiss the Amended Complaint is granted. Accordingly,
plaintiff Albamonte's Amended Complaint, as amended August 18,
1983 is ordered dismissed.
IT IS SO ORDERED.