APPLICATION OF LAW
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
However, Plaintiff's complaint must be dismissed to the extent
that Plaintiff seeks relief against defendants in their
individual capacities because of its complete failure to allege
facts indicating the personal involvement of any defendant in
Plaintiff a promotion. While Plaintiff need not prove his case
at the pleading stage, he must allege facts, not mere
conclusions, indicating the defendants' personal involvement in
the allegedly unconstitutional activities. Weber v. Village of
Hanover Park, 768 F. Supp. 630 (N.D.Ill. 1991); Grays v.
Bartelt, 714 F. Supp. 293 (N.D.Ill. 1989). Plaintiff alleges no
facts regarding the participation of any of the defendants in
denying Plaintiff a promotion.
For the foregoing reasons, Count II of Plaintiff's Second
Amended Complaint is dismissed without prejudice. Plaintiff is
granted leave to file an amended Count II within 14 days.