The opinion of the court was delivered by: CHARLES R. NORGLE
Before the court is the defendants' motion to dismiss the plaintiff's complaint. For the following reasons, the motion is granted in part and denied in part.
Plaintiff Cory D. Chan ("Chan") has been a Chicago police officer since 1973.
In July 1984, he was assigned to the Intelligence Section of the Chicago Police Department, Organized Crime Division, Bureau of Investigative Services ("Intelligence Section"). The following March, Chan began serving on the newly formed Chicago Terrorist Task Force ("Task Force"), a multi-agency group including the Intelligence Section, the Federal Bureau of Investigation, the U.S. Secret Service, and the Illinois State Police. Chan remained on the Task Force until he was transferred on August 14, 1989, at which time he was receiving $ 500 monthly in Authorized Uncontrollable Overtime and had use of an FBI-supplied car as a Task Force member. The only Chicago police officers eligible for the Task Force were in the Intelligence Section.
Chan alleges that he was transferred from the Task Force for asserting his Fifth Amendment right against self-incrimination before a federal grand jury on August 9, 1989. During his appearance before the grand jury, Chan was told that his testimony was sought in connection with alleged gambling activities in Chinatown. The federal gambling investigation bore no relation to Chan's duties with the Intelligence Section or the Task Force. Chan promptly reported to his police department superiors, as is required by police regulations, both his receipt of a grand jury subpoena in July 1989, and following his grand jury appearance, his assertion of Fifth Amendment privilege. Chan also reported that the grand jury investigation was unrelated to his police duties. On April 11, 1990, Chan testified under a grant of immunity before the same federal grand jury before which he had earlier asserted the Fifth Amendment.
Chan was transferred from the Intelligence Section on August 14, 1989, and the next day was reassigned as a patrol officer in the 9th District working afternoon and night watches, which were inconsistent with his seniority and experience. Chan's FBI security clearance, required for Task Force members, was revoked on August 16, 1989.
A grievance pursuant to the collective bargaining agreement covering Chicago police officers was filed on Chan's behalf on August 16, 1989 by the Fraternal Order of Police. The collective bargaining agreement provided in part that "No officer covered by this Agreement shall be suspended, relieved from duty or disciplined in any manner without just cause." (Sec. 8.1) The agreement also barred discrimination in transfers or assignments based on race or national origin, among other factors. (Sec. 10.2) An arbitrator ruled in Chan's favor on August 20, 1990, ordering reinstatement of Chan to the Intelligence Section and payment of benefits lost as a result of his transfer from that section. The arbitrator, however, found he lacked the power to order Chan's reinstatement to the Task Force. Based on the arbitration ruling, Chan was immediately transferred back to the Intelligence Section but has not been paid for any lost benefits.
Chan brought this lawsuit on July 24, 1991. Count One of the complaint claims that the removal of Chan from the Intelligence Section and the Task Force for asserting his Fifth Amendment privilege violated his due process rights under the Fifth and 14th Amendments and 42 U.S.C. § 1983. Count Two alternatively claims that if the questions asked him by the grand jury were related to performance of his official police duties, his assertion of Fifth Amendment privilege was due to the ineffective assistance of his attorney, and therefore his removal from the Intelligence Section and Task Force violated his due process rights. Count Three alleges that Chan, being of Chinese ancestry, was treated differently from police officers not of Chinese ancestry who asserted their Fifth Amendment rights before the same federal grand jury, in violation of Chan's equal protection rights under the Fifth and 14th Amendments and § 1983.
Count Four claims that Chan was not provided with a hearing or opportunity to be heard prior to his allegedly punitive transfer in violation of his equal protection rights. Count Five, apparently under Illinois common law, asserts that Chan's transfer based on accusations of his untrustworthiness stigmatized him and damaged his reputation. Count Six claims that Chan's transfer was without due cause and therefore violated his rights under the collective bargaining agreement. Count Seven seeks punitive damages against the defendants for their alleged willful, unlawful, malicious and wanton disregard of Chan's rights and feelings.
The defendants' motion to dismiss contends that the entire complaint is defective because, among other reasons, it fails to allege any violation of a federal constitutional right as is required to state a claim under § 1983, that even if such a right were alleged, the individual defendants are entitled to qualified immunity, and the City of Chicago cannot be held liable because Chan does not adequately allege that a city policy or custom caused his alleged constitutional injury.
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The court, however, need not strain to find inferences favorable to the plaintiff which are not apparent on the face of the complaint. Coates v. Illinois St. Bd. of Educ., 559 F.2d 445, 447 (7th Cir. 1977). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transp. Servs., Inc., 795 F.2d 591, 594 (7th Cir. 1986).
Counts One through Four of Chan's complaint allege constitutional violations under 42 U.S.C. § 1983. In support of these claims, Chan must show (1) an action taken under color of state law, (2) which caused a deprivation of a constitutionally protected right. Brown v. City of Lake Geneva, 919 F.2d 1299, 1301 (7th Cir. 1990) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). Additionally, to establish municipal liability under § 1983, Chan must show that the City of Chicago caused the deprivation through operation of an unconstitutional city policy or custom, Woods v. Michigan City, 940 F.2d 275, 277 (7th Cir. 1991) (citing Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978)), or as a result of inadequate training or supervision which amounted to deliberate indifference toward constitutional protections. Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1100-01 (7th Cir. 1990) (citing City of Canton v. Harris, 489 U.S. 378, 388-92, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)). The same requirements apply to ...