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YOUKER v. SCHOENENBERGER

April 19, 1991

CHRISTOPHER R. YOUKER, Plaintiff,
v.
EDWARD E. SCHOENENBERGER and TOWN OF MILTON, Defendants


Suzanne B. Conlon, United States District Judge.


The opinion of the court was delivered by: CONLON

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE

 Plaintiff Christopher Youker ("Youker") sues defendants Edward Schoenenberger ("Schoenenberger") and the Town of Milton ("Milton") (collectively, "defendants") for violation of his first amendment rights under 42 U.S.C. § 1983 (Count I), and for retaliatory discharge under Illinois law (Count II). Defendants move to dismiss the complaint for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6).

 BACKGROUND

 The facts of this dispute are uncomplicated. Youker was employed as a deputy tax assessor for Milton. Complaint para. 4. *fn1" At the time, Milton employed Schoenenberger as a tax assessor for certain townships in DuPage County, Illinois. Id. at para. 3. On July 26, 1990, Schoenenberger discharged Youker, allegedly in retaliation for notifying tax assessors in neighboring townships that a number of real estate owners claimed illegal homestead exemptions. Id. at para. 6. These exemptions were improper because they were duplicative of homestead exemptions declared by the same owners on real estate in Milton. Id. Youker alleges that duplicative homestead exemptions are illegal under state and federal law. Id.

 DISCUSSION

 The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990), quoting Triad Assocs., Inc. v. Chicago Hous. Authority, 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). The court must construe pleadings liberally; vagueness or lack of detail are insufficient grounds to dismiss. Fed.R.Civ.P. 8; Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). However, the court need not ignore facts set forth in the complaint that undermine its claims, nor is the court required to accept legal conclusions. American Nurses' Ass'n v. Illinois, 783 F.2d 716, 724 (7th Cir. 1986); Capalbo v. PaineWebber, Inc., 694 F. Supp. 1315, 1318 (N.D.Ill. 1988).

 Generally, the federal system of notice pleading does not favor dismissal for failure to state a claim. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988). However, dismissal is proper if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to the requested relief. Illinois Health Care Ass'n v. Illinois Dep't of Public Health, 879 F.2d 286, 288 (7th Cir. 1989), citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In addition, if the complaint fails to allege a necessary element required to obtain relief, dismissal is in order. R.J.R. Services, Inc. v. Aetna Casualty and Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). Defendants bear the burden of establishing the legal insufficiency of the complaint. Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990).

 I. Proposed Amended Complaint

 Youker concedes that defendants raise several meritorious objections to his complaint. In his response, Youker attaches a proposed amended complaint, and asks the court to consider the proposed complaint in ruling on defendants' motion to dismiss. However, Youker did not seek leave to file his amended complaint as required by Fed.R.Civ.P. 15(a). Thus, the proposed amended complaint is not properly before the court. The defendants' motion to dismiss is directed solely at Youker's original complaint, and it is on that basis that the court will rule. Youker may file an amended complaint by May 9, 1991.

 II. Count I

 In Count I, Youker alleges that his discharge constitutes a violation of his first amendment right of free expression. Count I is against Milton and Schoenenberger for compensatory and punitive damages. Youker also seeks equitable relief. Defendants assert that the claims in Count I for equitable relief and for punitive damages against Milton are improper. Youker concedes these points in his response to defendants' motion. Accordingly, the motion to dismiss the claim for equitable relief and the claim for punitive damages against Milton is granted. *fn2"

 III. Count II

 Count II is a state law claim for retaliatory discharge. Defendants submit that Youker has failed ...


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