interrogation, in violation of a direct order.
Only those Board charges filed against Officers D'Acquisto and Deseno were based upon underlying allegations of wrongdoing rather than their refusal to cooperate with a departmental investigation (def. Iris aff.).
Indicted by a federal grand jury on January 15, 1985, on charges of accepting bribes in exchange for altering the result of hit-and-run accident investigations, they were suspended by the Superintendent under emergency procedures the next day. Upon the filing of charges with the Police Board seeking their separation, their suspensions were continued for the duration of the proceedings (pl. exh. 2). Although Officer D'Acquisto's Board hearing was initially scheduled for February 28, 1985, it was not held until May 14 of that year, following a series of continuances (pl. exh. 13). Officer Deseno's Board hearing was similarly delayed from March 4, 1985 to September 17 of that year (pl. exh. 12). Because of the initial emergency basis for their suspensions, they received no opportunity to be heard on the underlying allegations or the merits of their suspensions until their full Board hearings. The Police Board found Officer Deseno guilty and discharged him from the Department on October 28, 1985 (def. Oct. 1987 reply mem. exh. E). The charges against Officer D'Acquisto were dismissed on May 14, 1985 (def. Oct. 1987 reply mem. exh. F).
I. Preliminary Issues
As a threshold issue, this court must determine whether plaintiffs' claims are moot. Defendants contend that this action must be dismissed because the underlying disputes between plaintiffs and the Department have been resolved, with all but Officer Deseno being restored with full back pay and seniority. A case must present a live controversy not only at its inception but at each point in the course of litigation. Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). Nonetheless, dismissal for mootness is inappropriate in those cases that are "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911)).
Plaintiffs' claim falls within this exception. Despite their eventual restoration to service, the named plaintiffs were deprived for a time of their property interest in their jobs. D'Acquisto, 640 F. Supp. at 607. In order to determine whether plaintiffs were accorded due process, this court must consider the nature and quality of the procedures accompanying that deprivation as they were applied to plaintiffs -- from pre-deprivation interrogation to post-deprivation evidentiary hearing. To hold that the claims of plaintiffs and those similarly situated were mooted by completion of the procedures they challenge would effectively eliminate the possibility of any "as applied" challenge to those procedures. Dismissal of this action on grounds of mootness would be inappropriate under the circumstances.
B. Which Plaintiffs are Properly before the Court ?
As noted previously, more than one set of officers has prosecuted this class action, rendering the procedural posture of this case "a bit bewildering." The passage of time seems only to have added to the confusion. Defendants contend that although Officers D'Acquisto and Deseno were named plaintiffs in the original complaint filed in this case, they no longer may properly be considered parties to the action and no evidence concerning their suspensions may be used to demonstrate the existence of a genuine issue of material fact. Plaintiffs, understandably, vehemently dispute this contention.
The relevant procedural history may be summarized as follows. Officers D'Acquisto and Deseno filed both the initial complaint and an amended complaint as two of three named plaintiffs.
Subsequently, however, a second amended complaint was filed with Officers Vivirito and Filas, who never sought leave to intervene, as named Plaintiffs. This second amended complaint failed to name Officers D'Acquisto and Deseno as parties, contained no allegations relating to their suspensions, and incorporated none of their prior pleadings. Defendants made their motion to dismiss at this point. Under the circumstances as they existed at the time, this court found it appropriate to treat Officers D'Acquisto, Deseno, Vivirito and Filas as named plaintiffs for purposes of defendants' motion. In the wake of our ruling denying the motion, Officers Vivirito and Filas filed a third amended complaint expressly incorporating their second amended complaint and adding Officer McGrath as a named plaintiff. Like the second amended complaint, however, the third amended complaint made no allegation of fact concerning Officers D'Acquisto and Deseno. By virtue of the parties' stipulation, Officers Armata and Boddie became additional named plaintiffs.
Plaintiffs deny any intention to dismiss or withdraw Officers D'Acquisto and Deseno as parties.
Nonetheless, it is well settled within this circuit that "an amended complaint in itself and making no reference to nor adopting any portion of a prior complaint renders the latter functus officio." Lubin v. Chicago Title and Trust Co., 260 F.2d 411 (7th Cir. 1958); see Tasner v. Billera, 379 F. Supp. 815 (N.D. Ill. 1974); Heckart v. Pate, 52 F.R.D. 224 (N.D. Ill. 1971). Having filed two amended complaints making no reference to nor incorporating any portion of the initial complaints filed by Officers D'Acquisto and Deseno, plaintiffs effectively have removed all allegations relating to the suspensions of those officers from the scope of their case. While the summary judgment evidence concerning these two officers may be useful from a purely illustrative perspective, this court will not consider it in determining whether plaintiffs have successfully demonstrated the existence of a genuine issue of material fact.
II. Procedural Due Process Claim
A. Summary Judgment Standards
In considering defendants' motion for summary judgment, this court must determine whether the pleadings, affidavits, and other materials provided by the parties demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering whether the summary judgment evidence presents a triable issue, we draw all reasonable inferences in favor of the nonmoving party. Cameron v. Frances Slocum Bank & Trust Co., 824 F.2d 570, 573 (7th Cir. 1987).
An issue of fact is material "when 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Puckett v. Soo Line L. R. Co., 897 F.2d 1423, 1425 (7th Cir. 1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
B. Procedural Due Process
1. Pre-Deprivation Opportunity to be Heard
As already noted, plaintiffs held a property interest in their employment relationship with the Department. D'Acquisto, 640 F. Supp. at 607. Inasmuch as "any suspension without pay is a deprivation" from a constitutional perspective, regardless of whether the suspension leads to termination, id. at 610, this court has held as well that plaintiffs were entitled to "some kind of hearing" either immediately before or promptly following imposition of their suspension. D'Acquisto, 640 F. Supp. at 612-14.
The remaining issue thus becomes whether the procedures that accompanied plaintiffs' suspensions were constitutionally adequate in light of the particular circumstances. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). At the very least, plaintiffs were entitled to notice of the charges against them, an explanation of the Department's evidence, and an opportunity to respond thereto. In light of the fact that Departmental procedures guaranteed, and plaintiffs received, a post-deprivation, full evidentiary hearing before the Police Board, the required pre-termination "hearing" need not have been elaborate. D'Acquisto, 640 F. Supp. at 615; Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 545, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Nor is it necessary that it have
definitively resolve[d] the propriety of the discharge [or suspension]. It should be an initial check against mistaken decisions -- essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.