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EBERHARDT v. O'MALLEY

May 4, 1993

STEPHEN E. EBERHARDT, Plaintiff,
v.
JACK O'MALLEY, Individually, KENNETH L. GILLIS, PATRICK O'BRIEN, DEAN MORASK, MICHAEL SHABAT, and KENNETH MALATESTA, ALL INDIVIDUALLY, Defendants.


Andersen


The opinion of the court was delivered by: WAYNE R. ANDERSEN

Defendants bring a motion to dismiss plaintiff's complaint for failure to state a claim on which relief can be granted pursuant to Rule 12(b)(6) of the Fed. R. Civ. P. For the following reasons, defendants' motion is granted.

 FACTS

 The court accepts the following relevit allegations in plaintiff's complaint as true for purposes of this motion to dismiss:

 Plaintiff, Stephen E. Eberhardt, was hired in 1982 as an Assistant State's Attorney in Cook County, Illinois to work in the Appeals Division. In 1990, plaintiff began working on a "fictional novel involving fictitious prosecutors and other persons in the criminal justice system." In November of 1990, plaintiff asked a fellow Assistant State's Attorney, Judy Mondello, to review a draft manuscript of his novel and offer her comments. In December, 1990, Ms. Mondello wrote a letter to defendant Patrick O'Brien, Chief Deputy State's Attorney - Criminal, complaining of plaintiff's manuscript. Ms. Mondello claimed that a certain home described in the manuscript appeared to be the home of her parents in St. Louis, Missouri, and that plaintiff must have obtained this personal information by following and spying on her.

 On December 10, 1990, O'Brien called Eberhardt into his office to discuss Ms. Mondello's charges. During the meeting, O'Brien expressed concern over what he termed "office confidences" appearing in the manuscript. In response to plaintiff's explanation that all characters and locations in the manuscript were a consolidation of persons and places he had become familiar with during his career as a police officer and a prosecutor, O'Brien asked, "How can I leave you in a trial court if whatever you learn will appear in a book someday?" O'Brien informed plaintiff that he was being temporarily transferred from the Felony Trial Division to the Special Remedies Unit while Ms. Mondello's allegations of sexual harassment and invasion of privacy were being investigated.

 O'Brien called the State's Attorney's Coordinators in the Fifth and Sixth Municipal Districts and asked them to interview all female Assistant State's Attorneys in their districts to ask them if the plaintiff had ever sexually harassed them. These interviews were carried out, and this, along with open discussion of the charges by defendants, resulted in the charges becoming common knowledge among personnel in the Cook County State's Attorney's Office and other persons working within the criminal justice system in Cook County.

 Plaintiff claims that his transfer to the Special Remedies Unit was generally considered to be a substantial demotion within the office, although he concedes that he earned the same pay he received before the transfer. Plaintiff remained in this unit for almost fourteen months, during which time he was never advised whether the investigation had been completed or whether the charges against him had been substantiated. During this time, plaintiff received only about five hours of work per week. He made several requests for a transfer from the Special Remedies Unit, none of which were responded to by any of the defendants.

 On January 30, 1992 defendant Kenneth Gillis, First Assistant State's Attorney, called plaintiff into his office for a meeting with him and O'Brien. Upon his arrival, Gillis advised plaintiff that he was being terminated because "between vacation and sick time [he had] been gone quite a bit."

 Plaintiff filed a complaint naming Cook County State's Attorney Jack O'Malley and five other supervisory-level State's Attorneys as defendants. Counts I-III allege violations of 42 U.S.C. § 1983 ("§ 1983"). In Counts I and II, plaintiff specifically alleges that his First Amendment rights were violated, claiming he was demoted and eventually terminated in retaliation for writing the manuscript. In Count III, plaintiff specifically alleges that he was deprived of a liberty interest without due process in violation of the Fourteenth Amendment, claiming that the defendants disseminated false and stigmatizing charges against him in connection with his termination without providing him an opportunity to clear his name. In Count IV, plaintiff claims he was terminated in retaliation for requesting to view his personnel file. Finally, Counts V and VI claim that the defendants, by inducing and carrying out the termination of his employment with the Cook County State's Attorney, intentionally and maliciously interfered with plaintiff's employment relationship with the State's Attorney. Defendants move to dismiss the complaint for fallure to state a claim on which relief can be granted.

 DISCUSSION

 Standard of Review

 On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court views all well-pled allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323 (7th Cir. 1990). The complaint must state either direct or inferential allegations concerning all material elements necessary for recovery under the relevant legal theory. Mescall v. Burns, 603 F.2d 1266, 1269 (7th Cir. 1979). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that plaintiff can prove no set of facts in ...


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