The opinion of the court was delivered by: Grady, District Judge.
This is a civil rights action under 42 U.S.C. § 1983, for
defamation, illegal arrest, conspiracy and unlawful surveillance.
Discovery was completed as of April 15, 1984. Defendants have now
moved for summary judgment, and for attorneys' fees under
42 U.S.C. § 1988.
Plaintiff Duane A. Bootz is a resident of the City of
DesPlaines, Illinois, and was formerly employed as a short-order
cook at Denny's Restaurant in DesPlaines. Defendants are
DesPlaines police officers Richard C. Childs, K. Randolph, J.
Stephens, Richard Rozkuszka, and J. Slonina, DesPlaines police
chief Leroy Alfano, and the City of DesPlaines.
Plaintiff alleges that defendants have maliciously conspired
and engaged in a course of conduct designed to embarrass, harass
and discredit plaintiff, and get him fired from his job at
Denny's. Specifically, plaintiff alleges that defendant Childs
and other DesPlaines police officers harassed him at his place of
employment by complaining about his cooking and refusing to eat
food cooked by him. In particular, plaintiff cites an incident
during the early morning hours of June 30, 1983, when defendant
Childs insisted that someone other than plaintiff cook his food
because plaintiff had previously put something in Childs' food.
Later that day, at approximately 11:00 p.m., plaintiff was riding
his bicycle home from work*fn1 and saw defendant Childs parked
in a squad car, apparently watching plaintiff's home. Plaintiff
waved hello, and then proceeded into his house. At midnight, as
plaintiff was waiting outside his house for a ride to go on a
camping trip, Childs arrested plaintiff for riding his bicycle
without a headlight and for failing to stop at a stop sign while
on a bicycle. Plaintiff was held at the DesPlaines police station
for an hour before he was allowed to speak with his attorney (who
is also plaintiff's father) and post bond. After leaving the
police station, plaintiff got into a car to go home, and was
followed by defendant Rozkuszka to a shopping center parking lot
where plaintiff and his family confronted Rozkuszka and asked him
for identification. Defendant refused to identify himself, but
did tell plaintiff that he had received orders to follow
Plaintiff also alleges that defendant police officers
maliciously informed plaintiff's employer, friends and neighbors
of plaintiff's prior criminal arrests and convictions in order to
embarrass and discredit him. Plaintiff admits that he has a
criminal record, although the exact nature of that record is
unclear. Plaintiff's Memorandum in Opposition to Defendant's
Memorandum in Support of Their Motion for Summary Judgment,
Transcript of Dep. of Duane A. Bootz, at 91-93. In addition,
plaintiff claims that defendant Slonina cited plaintiff for
parking his motor home at his residence in violation of a
DesPlaines city ordinance regulating taxis.
Defendants have moved for summary judgment on plaintiff's
defamation claims, arguing that the police officers' statements
concerning plaintiff were not defamatory because they were true,
and to the extent that any statements were defamatory, they did
not deprive plaintiff of any constitutional rights.
It is axiomatic that in order for a statement to be defamatory,
it must be false. See Zaret v. Joliet Park District,
91 Ill. App.3d 225, 227, 47 Ill.Dec. 654, 415 N.E.2d 659, 660 (3d
Dist. 1980). Plaintiff has not specified the content of
defendants' statements, other than to allege that Childs and
other DesPlaines police officers informed plaintiff's employer,
friends and neighbors about his past criminal record, nor has any
evidence been presented as to the exact nature of plaintiff's
record. We are therefore unable to determine at this time whether
all of defendants' statements were truthful and not defamatory.
Regardless of this factual question, however, we find that
summary judgment for defendants is appropriate on plaintiff's
defamation claims since it is clear that plaintiff has not
suffered a constitutional injury. Defamatory statements by state
officials that damage an individual's reputation alone are
clearly not cognizable under 42 U.S.C. § 1983 as a civil rights
violation, even though a state tort claim for defamation may
exist. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405
(1976). Under the "stigma plus" test, the stigma caused by the
defamation must occur in conjunction with, or "plus," the loss of
some right or governmental benefit, or a change in plaintiff's
legal status, without due process of law. Id.; Hadley v. County
of DuPage, 715 F.2d 1238, 1246-47 (7th Cir. 1983), cert. denied,
465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984); see also
Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27
L.Ed.2d 515 (1971) (defamatory action of "posting" that an
individual is an alcoholic, thereby depriving the individual of
the right to purchase liquor, is unconstitutional).
Plaintiff's claims that defendants' statements concerning his
criminal record embarrassed and discredited him therefore clearly
do not state a cause of action under § 1983. Plaintiff also
alleges that defendants' statements to his employer were made
with the intent of causing plaintiff to lose his job. Plaintiff's
employment as a short-order cook at a privately-owned restaurant,
however, is not a governmental right or benefit, nor has
plaintiff alleged that the defamation caused a change in
plaintiff's legal status.*fn2 Moreover, defendants have
submitted the deposition testimony of plaintiff's supervisor at
Denny's Restaurant, who stated that plaintiff was not fired but
instead voluntarily left Denny's to take a higher paying job at
a factory. Defendants' Memorandum in Support of Their
Motion for Summary Judgment, Transcript of Dep. of Meta Wade, at
24-27. Plaintiff has not refuted Wade's testimony, and in fact,
his amended complaint does not actually allege that defendants'
defamatory actions led to his loss of employment but simply
claims that defendants maliciously intended to "jeopardize[ ]"
his job. Amended Complaint, ¶¶ 8c, 15, 16.
There is no deprivation of liberty if an employee is not fired.
Lawson v. Sheriff, 725 F.2d at 1139. Plaintiff has thus not
suffered any injury due to the alleged defamation other than
stigma to his reputation, which is not sufficient to sustain a
cause of action under § 1983. Summary judgment is accordingly
granted for ...