The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is certain Defendants' Motion To Dismiss the
Second Amended Complaint (Doc. # 24, Part 1). To the extent that
the motion addresses Count II of the Second Amended Complaint,
the motion is granted.
Plaintiff brings Count II under 42 U.S.C. § 1983. Plaintiff is
an adult male Hispanic who was hired as a Corrections officer by
the Illinois Department of Corrections in 1988 and was assigned
to the Henry C. Hill Correctional Center in Galesburg, Illinois.
According to the Complaint, on numerous occasions since his
hire, Plaintiff has applied for promotion to the position of
lieutenant with the Department of Corrections, and last applied
on September 8, 1989. Plaintiff has not been promoted to
Plaintiff alleges that Defendants denied Plaintiff the
promotion because he is a Hispanic, and that this violates
Plaintiff's right to equal protection of the law as guaranteed
by the Fourteenth Amendment. Plaintiff sues the following
Defendants with respect to Count II: Michael Lane, who at times
relevant was the Director of the Department of Corrections of
the State of Illinois; Kenneth McGinnis, who was and is the
Director of the Department of Corrections of the State of
Illinois; Jerry D. Gilmore, Warden of the Henry C. Hill
Correctional Center of the Department of Corrections of the
State of Illinois; Sam Riley, Captain in the Department of
Corrections of the State of Illinois working at the Henry C.
Hill Correctional Center; Marion Yeazle, Major in the Department
of Corrections of the State of Illinois working at the Henry C.
Hill Correctional Center; and Michael Tristano, Director of the
Department of Central Management Services of the State of
Illinois. All defendants are sued in their individual
capacities, and defendants Mcginnis, Gilmore and Tristano are
also sued in their official capacities.
Defendants seek to dismiss the Second Amended Complaint on the
grounds that it fails to allege what Fourteenth Amendment rights
Plaintiff claims were violated, that defendants were personally
involved in denying Plaintiff a promotion, or that there was a
causal link between Plaintiff's ethnic background and the
failure to be promoted. Defendants further contend that the
Eleventh Amendment bars a suit for damages against Defendants'
Gilmore and McGinnis*fn1 in their official capacities, and
that defendants are entitled to qualified immunity from suit for
damages for their actions as government officers.
On a motion to dismiss, the Court must assume the truth of all
well-pleaded facts in Plaintiff's complaint and view them in the
light most favorable to Plaintiff. Ed Miniat, Inc. v. Globe
Life Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986),
cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676
(1987). Dismissal 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." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
However, conclusory allegations that lack an underlying factual
basis are not sufficient to survive a motion to dismiss.
Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd,
460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).
At the outset, it should be noted that Plaintiff did specify
that his Fourteenth Amendment right to equal protection was
violated. Plaintiff's complaint is not deficient on these
grounds. Further, defendants are not entitled to Eleventh
amendment immunity on the grounds that Plaintiff seeks money
damages from defendants in their official capacities with
respect to Count II.*fn2 Plaintiff, in response to the motion
to dismiss, specifically states that he is not seeking damages
from defendants in their official capacities, but rather, is
seeking injunctive relief.*fn3 Nor are defendants entitled to
qualified immunity from suit for damages based on the
allegations contained in Count II, Officials cannot receive
qualified immunity if their conduct violates clearly established
constitutional rights of which a reasonable person would have
known. Conner v. Reinhard, 847 F.2d 384 (7th Cir. 1988),
cert. denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 118
(1988). That Hispanics are protected from discrimination under
the equal protection clause of the Fourteenth Amendment is
clearly established, and a reasonable person would have known
Defendants also argue that Plaintiff has failed to state a
causal connection between Plaintiff's ethnic heritage and his
failure to be promoted. The complaint specifically alleges that
Plaintiff was not promoted because he was Hispanic. The Court
does not understand defendants' argument on these grounds,
perhaps because it was only specifically addressed with respect
to Count I. The Court will not speculate as to what defendants'
specific arguments are with respect to the insufficiency of the
causal allegations of Count II, and will not dismiss on these
For the foregoing reasons, Count II of Plaintiff's Second
Amended Complaint is dismissed without prejudice. Plaintiff is
granted leave to ...