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AURIEMMA v. CITY OF CHICAGO

August 31, 1990

JOHN AURIEMMA et al., Plaintiffs,
v.
CITY OF CHICAGO, Defendant


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 On August 20, 1990 a divided en banc Seventh Circuit affirmed this court's ruling that Superintendent of Police Fred Rice was not entitled to qualified immunity from suit with regard to the claims presented by plaintiffs in Counts III and V of the Second Amended Complaint. *fn1" Auriemma et al. v. Fred Rice and City of Chicago, 910 F.2d 1449, (1990 U.S. App. LEXIS 14525) (7th Cir. Aug. 20, 1990). The parties agree that the stay entered when Mr. Rice appealed this court's ruling on the qualified immunity issue should no longer preclude this court from ruling on the pending motion filed by the City of Chicago (the "City") for summary judgment on all remaining counts against it. For the reasons stated herein, the City's motion will be granted.

 BACKGROUND FACTS

 After the late Mayor Harold Washington appointed him as Superintendent of the Chicago Police Department in August of 1983, Fred Rice proceeded to reorganize the exempt rank positions of the department. *fn2" As part of the reorganization of these top management positions, Superintendent Rice reassigned or demoted twenty-five white officers from the exempt ranks. He did not demote any black officers. He promoted thirteen black officers to the exempt ranks. Plaintiffs are some of the white police officers who were demoted on December 2, 1983. See Auriemma, supra, slip op. at 2-3. Plaintiffs filed their original complaint in this action on February 8, 1984, challenging the constitutionality of Superintendent Rice's actions. *fn3" Plaintiffs' remaining claims against the City, as set forth in the Second Amended Complaint, are described below.

 Count II: Political Discrimination

 Count II of the Second Amended Complaint alleges, in relevant part, that:

 
Defendant Rice was appointed Superintendent of the Chicago Police Department by defendant Harold Washington subsequent to his election as Mayor of the City of Chicago. Defendant Rice was and is a political supporter of Washington and he conferred with Washington and his aides concerning plaintiffs' demotions.
 
Defendant Rice at defendant Washington's insistence and direction ordered all of plaintiffs' demotions.
 
Plaintiffs had supported candidates for Mayor other than defendant Washington and failed to provide any support for Washington during either his primary campaign or his campaign for Mayor. Plaintiffs' demotions from their positions within the upper ranks of the Chicago Police Department were ordered by defendants Washington and Rice to punish them for their failure to support Washington in his campaign for Mayor and to make room for appointments of Washington supporters into those positions.

 (Second Amended Complaint, Count II, paras. 48-51.) Plaintiffs seek relief pursuant to 42 U.S.C. § 1983 for the alleged violation of their First Amendment rights. (Id., P 52.)

 After the City moved to strike Count II on the ground that the plaintiffs had ignored this court's order to provide defendants with a more definite statement concerning the policy or practice at issue in Count II, plaintiffs filed a statement under Fed. R. Civ. P. 12(e) ("Rule 12 Statement"). Paragraph one of plaintiffs' Rule 12 Statement alleges:

 
It is the policy of the City of Chicago that the Superintendent of the Chicago Police Department have full discretionary authority to appoint, remove, and reassign officers to and from exempt ranked positions, with or without cause, at will, and that the Superintendent's decisions not be subject to review by municipal authority even where such decisions, acts or policies may violate the constitutional and civil rights of the affected officers, and that it is the policy, custom and practice of the City of Chicago that the Superintendent by Municipal Ordinance be the official with the final policy making authority with respect to all employment decisions respecting exempt rank positions in the Police Department and that there be no restraints imposed by the City to prevent the Superintendent from basing his decisions, policies and actions on an officer's race or constitutionally protected exercise of political rights, and finally that the policies, acts and decisions of the Superintendent in this area be binding upon the City of Chicago as its policies, acts an[d] decisions.

 (Plaintiffs' Rule 12 Statement, pp. 1-2.) *fn4"

 Count III: Race Discrimination

 
The above knowing and intentional patterns and series of acts of discrimination by defendants Washington and Rice represent the custom and policy of the City of Chicago as implemented by its Chief Executive Officer, Harold Washington, and the highest ranking officer in the Chicago Police Department, Fred Rice, of harassing and demoting white officers who held supervisory command positions in order to make these positions available to black officers.

 (Id., P 58.)

 Count III seeks relief under 42 U.S.C. §§ 1981 and 1983.

 Count IV: Civil Rights Conspiracy

 Count IV alleges that the defendants violated 42 U.S.C. § 1985(3) by conspiring to violate plaintiffs' civil rights. Counsel for plaintiffs has asserted that the City is a named defendant to Count IV. (See Transcript of Proceedings of 3/6/89, pp. 5-6, submitted as Supplement to Plaintiffs' Response to Motion for Summary Judgment.)

 Count V: Retaliation

 Finally, Count V alleges that since the plaintiffs filed their original complaint in this case, the defendants have subjected them to a "pattern of harassment and retaliatory treatment" in violation of 42 U.S.C. § 1983. (Second Amended Complaint, Count V, para. 65.) Among other things, the pleading alleges, Mr. Rice and the City have failed to consider plaintiffs for promotions or transfers to better assignments since they filed suit in February of 1984 and "have launched a campaign to harass and embarrass plaintiffs and to disrupt their careers as police officers . . . ." (Id., P 70.)

 Count V alleges that Mr. Rice's retaliatory actions were taken as an agent of the City of Chicago. (Id., P 71.) Count V also asserts municipal liability on the following basis:

 
The above knowing and intentional pattern of acts and discrimination by defendants Rice and Washington represent the custom and policy of the City of Chicago as implemented by its chief executive officer, Harold Washington, and the highest ranking officer in the Chicago Police Department, Fred Rice, of harassing and retaliating against police officers who have filed federal lawsuits against them.

 (Second Amended Complaint, Count V, para. 73.)

 DISCUSSION

 I. Counts II and III: Political Discrimination and Race Discrimination.

 Relying primarily upon the Supreme Court's decision in City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988), the City argues that plaintiffs have been unable to allege, let alone establish, a municipal policy that would subject the City to liability under Counts II or III. *fn5" Furthermore, the City contends, plaintiffs have been unable to establish municipal liability based upon a widespread practice "'so permanent and well settled as to constitute "a custom or usage" with the force of law.'" Praprotnik, 108 S. Ct. at 925-26, quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168, 90 S. Ct. 1598, 1613-14, 26 L. Ed. 2d 142 (1970). To the contrary, the City argues that municipal employment policy -- as established by ...


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