The opinion of the court was delivered by: JAMES B. MORAN
In considering defendants' motion to dismiss, we accept plaintiff's allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), and view them, along with any reasonable inferences to be drawn from them, in a light most favorable to the plaintiff. Doe, on behalf of Doe, v. St. Joseph's Hosp., 788 F.2d 411, 414 (7th Cir. 1986). Using this standard, the following facts reflect plaintiff's version of the events in question.
On April 11, 1990, the Chicago Police Department notified plaintiff in writing of allegations of misconduct against him.
Sgt. Rojek investigated the allegations and recommended a 15-day suspension without pay. In mid-June, plaintiff requested and received a complaint review panel hearing.
Apparently, the complaint review panel agreed with Sgt. Rojek's recommendation of a 15-day suspension. Following the hearing, however, Supt. Martin authorized a reduced suspension of three days without pay. Plaintiff was suspended from May 29 to May 31, 1991, without pay.
Plaintiff's suspension was not submitted to the Police Board for review, nor did plaintiff receive a hearing before the Board. On December 27, 1990, a personnel order was issued announcing plaintiff's suspension for violation of Police Department Rules 1, 2, 4, 6 and 14.
Plaintiff alleges that his suspension and the process he received were improper for numerous reasons.
Consequently, plaintiff claims he was denied equal protection and was deprived of both property and liberty interests without due process of law.
Defendants contend that the City and Supt. Martin, in his official capacity, must be dismissed because plaintiff has not alleged that defendants' actions were taken pursuant to an unlawful municipal policy, as required in order to state a § 1983 claim. Also, if Supt. Martin is being sued in his individual capacity, defendants assert that he is entitled to qualified immunity. Moreover, defendants deny that plaintiff was deprived of liberty or property interests, and they assert that he received all process due in any event. Finally, defendants contend that plaintiff has failed to state an equal protection claim.
Plaintiff asserts his constitutional claim under 42 U.S.C. § 1983. In order to sue a municipality (or a public official acting in an official capacity) under § 1983, plaintiff must allege that his injury was the result of an official policy, custom or practice. Monell v. Dept. of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiff claims he was denied due process because he was denied Police Board review of his suspension, which he claims he is entitled to under Illinois law, Ill.Rev. Stat. ch. 24, para. 10-1-18.1, as interpreted by the Supreme Court of Illinois in Kro pel v. Conlisk, 60 Ill. 2d 17, 322 N.E.2d 793 (1975). Defendants, however, claim the contrary, that the procedures followed do not violate either Illinois law or the federal Constitution.
Because defendants assert that plaintiff's suspension was not improper under police rules and regulations, Illinois law or the federal Constitution, then any resulting constitutional injury (should there be one) is the direct result of an official policy, custom or practice. See D'Acquisto v. Washington, 640 F.Supp. 594, 605-606 n.3 (N.D. Ill. 1986) ("Further, the superintendent and the Police Board function as municipal officers with authority to establish official policy, so their acts are municipal policy for which the City may be held liable.").
Therefore, neither the City nor Supt. Martin, in his official capacity, will be dismissed on this basis.
Defendants argue that the complaint against defendant Martin, in his individual capacity,
should be dismissed because Martin is entitled to qualified immunity. This is so, they claim, because plaintiff had no clearly-established right to Police Board review prior to his suspension. Should this be the case, however, Supt. Martin would only be entitled to qualified immunity on damages. Davis v. Scherer, 468 U.S. 183, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984). Because such immunity is only relevant to a damage claim against Martin, and not to the injunctive relief sought by plaintiff, Martin will not be dismissed on the basis of qualified immunity.
II. Deprivation of Property Without Due Process
Plaintiff claims his suspension denied him of a property interest in continued employment. Defendants admit that there "is no dispute that, as a career service CPD police officer, plaintiff has a property interest in continued employment" (defs. mem. p.2). However, defendants do maintain that plaintiff has not been deprived of a property interest. According to defendants, we must reach this conclusion because plaintiff has not based his claim on an interest in continued employment, i.e., plaintiff has not alleged that defendants deprived him of his job, but merely that they suspended him for three days.
To determine whether an employee has a property interest in continued employment under the Fourteenth Amendment, one must look to sources outside of the Constitution, such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Ill.Rev.Stat. ch. 24 para. 10-1-18.1, gives non-probationary Chicago police officers a protected property interest in their continued employment. See, e.g., D'Acquisto, 640 F.Supp. at 607. Defendants' argument that a three-day suspension is not deprivation of property because plaintiff has not been deprived of his job, is without merit. Once plaintiff has been found to have a protected property ...