Nelson by their official titles with the Park District, another factor tending to demonstrate an individual capacity suit. See Kolar, 756 F.2d at 567. When Glatt's pleadings are read in their entirety, the pleadings evince that an individual capacity suit was intended against Halper and Nelson. Consequently, with respect to the counts against Halper and Nelson, counts I and II, an individual capacity suit is assumed, and Glatt need not allege a municipal policy or custom. Nonetheless, Glatt is subject to the third requirement of alleging municipal policy or custom as to Count III because it is asserted against the Park District, a municipal corporation.
Counts I and II allege that Halper and Nelson deprived Glatt of his First Amendment rights to freedom of speech and association. The complaint sufficiently alleges that at all relevant times, both Halper and Nelson acted under color of law. Because Glatt brings these counts against Halper and Nelson in their individual capacities, Glatt's only other requirement to state a viable § 1983 action is that he allege sufficient facts to show he was deprived of his constitutional rights. See Leatherman v. Tarrant County Narcotics Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993).
To demonstrate that Halper and Nelson deprived Glatt's freedom of speech, Glatt must show that Halper and Nelson retaliated against him for speaking out on a matter of public concern. Gray v. Lacke, 885 F.2d 399, 410 (7th Cir.), cert. denied, 494 U.S. 1029, 108 L. Ed. 2d 613, 110 S. Ct. 1476 (1989). In count I, Glatt complains Halper and Nelson instructed the Park District personnel not to remove weeds from Glatt's mooring in retaliation for Glatt's speaking out about bribery, corruption, payoffs and other misconduct, which are matters of public concern. Accepting the factual allegations of the complaint as true, Glatt has alleged enough facts to show deprivation of his First Amendment right to freedom of speech. Thus, the motion to dismiss as to Count I is denied.
Count II, however, fails to state a cause of action. To demonstrate that Harper and Nelson deprived Glatt's First Amendment right to freedom of association, he must demonstrate that he was deprived of his right to associate with others for the purpose of expression. See, e.g., City of Dallas v. Stanglin, 490 U.S. 19, 24-5, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989); Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir.), cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113, 111 S. Ct. 147 (1990). The First Amendment does not protect opportunities of association that do not pertain to expressive association, even if they might be described as "associational" in common parlance. Stranglin, 490 U.S. at 23. Not only is it doubtful that the association that Glatt desires with the other mooring lessees of Diversey Harbor is the type of expressive association that the First Amendment protects, Glatt does not allege any expressive purpose. Thus, the motion to dismiss as to count II is granted.
Count III likewise fails to state a § 1983 cause of action. Count III alleges that the Park District deprived Glatt of a property right protected by the due process clause of the Fourteenth Amendment by failing to assign space D-19 to him. To survive the motion to dismiss, count III must contain facts sufficient to support a finding that the Park District had a municipal policy or custom that caused his injury, and that he had a protected property interest in his previous mooring space D-19.
A single act of a municipal official, if that official has the authority to make policy, can constitute a municipal policy for purposes of § 1983. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). Glatt alleges that Nelson, as the "Marine Director," had the authority to make final and unreviewable decisions about mooring permits, and therefore Nelson was the final policy-making authority. Accordingly, Glatt has pleaded adequate facts to satisfy the municipal policy requirement to state a § 1983 claim for purposes of a motion to dismiss.
Glatt, however, fails to establish a violation of his constitutional rights by the Park District. In order for an individual to have a constitutionally protected property interest, he or she must have a legitimate claim of entitlement to the subject property. See, e.g. Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420; Bayview-Lofberg's, Inc. v. City of Milwaukee, 905 F.2d 142, 144 (7th Cir. 1990); Carson v. Block, 790 F.2d 562, 566-67 (7th Cir. 1986). Glatt alleges that by the Park District's use of the word "shall" in subsection C(3)(b)(1) of Chapter VIII of the Park District Rules, the ordinance providing the procedure for assignment and renewal of permits, created a presumption that he would receive his previously assigned mooring space. The court disagrees. A careful reading of the subsection C(3)(b)(1) reveals the ordinance only mandates that the prior permittee "shall be granted a renewal for the prior permit." Park Dist. R., Ch. VIII, § C(3)(b)(1).
The following sentence in this subsection grants the Marine Director a discretionary power to assign mooring spaces to the permit holders. Therefore, Glatt has only alleged, at best, that he has a property interest in a mooring permit in Diversey Harbor, but not a specific mooring space. Further, Glatt has failed to allege any other source of entitlement to D-19. Thus, Glatt has not alleged sufficient facts to establish a due process claim. As a result, the motion to dismiss as to Count III is granted.
For the foregoing reasons, defendants' motion to dismiss is granted as to count II and III, and denied as to count I.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court