to dismiss Count II of plaintiff's complaint is granted.
3. Violation of Due Process Liberty Interest
Plaintiff alleges that denial of light duty assignments and
discontinuation from the sergeant's promotional procedure
constitute deprivation of a liberty interest under due process
because these deprivations occurred in retaliation for the
exercise of his First Amendment rights. Defendant counters that
no liberty interest can be involved because plaintiff is still
employed by defendant and he is free to seek alternative
The Supreme Court has held that even the loss of one's job does
not amount to a deprivation of "liberty," as long as one remains
free to obtain alternative employment. Paul v. Davis,
424 U.S. 693, 709-10, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976), reh.
denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976);
Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701,
2707, 33 L.Ed.2d 548 (1972). In Webster v. Redmond,
599 F.2d 793 (7th Cir. 1979), cert. denied, 444 U.S. 1039, 100 S.Ct.
712, 62 L.Ed.2d 674 (1980), the Seventh Circuit Court of Appeals
has held that no liberty interest is implicated where a plaintiff
is denied a promotion, since he remains free to seek alternate
employment if dissatisfied with his job. Id. at 798.
In the present case, plaintiff's allegations of a liberty
interest in light duty assignments and the sergeant's promotional
procedure standing alone are foreclosed by Webster v. Redmond,
supra. Plaintiff's allegation of deprivation of these interests
based on First Amendment rights being violated might be
actionable. However, the Court has already found that plaintiff's
speech does not involve First Amendment rights. Therefore, the
alleged liberty interests cannot survive based on an alleged
violation of First Amendment rights.
Plaintiff also relies on DiIulio v. City of Northlake,
682 F.2d 666 (7th Cir.) cert. denied, 459 U.S. 1038, 103 S.Ct. 451,
74 L.Ed.2d 605 (1982), for the proposition that he has a liberty
interest in a fair promotional system. However, DiIulio is
distinguishable from the present case. In DiIulio, the court
held that the plaintiffs had a liberty interest in not being
subjected to an arbitrary system of promoting personnel. The
interest in DiIulio involved substantive due process because
plaintiff's interest was in not being subjected to an arbitrary
system — a substantive constitutional right. Begg v. Moffitt,
555 F. Supp. 1344, 1347 n. 7 (N.D.Ill. 1983).
In the present case, as in Moffitt, plaintiff does not allege
that the scheme used by defendants was an arbitrary one; he
attacks only the decisions made in his case, not the overall
system. Id. Therefore, in this situation, DiIulio is
distinguishable and Webster controls to defeat plaintiff's
liberty interest claim. Accordingly, defendant's motion to
dismiss Count III of plaintiff's complaint is granted.
4. Violation of Equal Protection
Plaintiff alleges a violation of equal protection because he
was not given light duty assignments for off-duty injury. He
alleges that he was treated differently from others who were
granted light duty assignments. However, plaintiff identifies no
officers who received light duty assignments nor any positions
available involving light duty assignments. Defendant argues that
plaintiff's equal protection claim is based on his First
A mere inconsistency in the way the state treats persons is not
the basis for an equal protection claim unless it is caused by
the defendants' purposeful and intentional discrimination.
Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir. 1982).
Where, as here, the only purpose or intent alleged in the
complaint is an intent to retaliate against plaintiff for his
comments on personnel policy, plaintiff's equal protection claim
is indistinguishable from his First Amendment claim. Begg v.
Moffitt, supra, 555 F. Supp. at 1353 n. 32. Therefore, in the
present case, since the plaintiff alleged no basis for purposeful
or intentional discrimination other than retaliation for his
comments regarding personnel policy,
the Court finds that his equal protection claim is
indistinguishable from his First Amendment claim and likewise
should be dismissed. Accordingly, defendant's motion to dismiss
Count IV of plaintiff's complaint is granted.
Defendant's motion to dismiss all four counts of plaintiff's
complaint is granted.
IT IS SO ORDERED.
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