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Deguiseppe v. Village of Bellwood

October 16, 1995

FRANK DEGUISEPPE AND TORRY PALERMO,

PLAINTIFFS-APPELLANTS,

v.

VILLAGE OF BELLWOOD AND ROBERT FRASCONE,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 3499 -- John A. Nordberg, Judge.

Before CUMMINGS, ESCHBACH and RIPPLE, Circuit Judges.

CUMMINGS, Circuit Judge.

ARGUED JUNE 8, 1995

DECIDED OCTOBER 16, 1995

Plaintiffs, two sergeants with the Village of Bellwood, Illinois, Police Department, filed this 42 U.S.C. sec. 1983 action against the Village and its police chief in his official capacity. *fn1 Although the details of each plaintiff's claim differed slightly, the gist of both was that the chief, Robert Frascone, had retaliated against them in violation of their First Amendment rights after they unsuccessfully opposed his promotion to police chief. The district judge granted defendants' motion to dismiss with respect to plaintiff Palermo and granted summary judgment against plaintiff DeGuiseppe; both plaintiffs now appeal, but we affirm.

BACKGROUND

This dispute originated in 1990, when the chief of police position at the Bellwood Police Department became vacant and Frascone, at the time a patrolman, was selected by the Village for the job. Palermo, DeGuiseppe and others, angered at this promotion to the top spot of a rank-and-file officer, protested in a letter written to Frascone, the mayor and the Village Board and published in several local media outlets. Subsequently Frascone held a series of meetings with plaintiffs, who had continued to express vocal opposition to him. Plaintiffs allege that at one of those meetings, Frascone threatened retaliation against both of them for their opposition. More specifically, they claim that Frascone told them, "I don't get mad -- I get even."

Soon after, say the plaintiffs, Frascone carried out this threat by instituting disciplinary proceedings against Palermo and by refusing to grant light duty status to DeGuiseppe. Palermo remains on the police force; DeGuiseppe, who applied for a disability pension after being denied light duty, is retired.

DISCUSSION

Both plaintiffs' claims were decided prior to trial on the merits: Palermo's on a motion to dismiss and DeGuiseppe's on summary judgment. This Court reviews each claim de novo. We uphold a motion to dismiss only if the plaintiff has stated no set of facts on which relief could be granted. Chaney v. Suburban Bus Div. of Regional Transp. Authority, 52 F.3d 623, 626 (7th Cir. 1995). We review a grant of summary judgment to determine whether the record, with all reasonable inferences drawn in favor of the non-movant, establishes that the movant was entitled to judgment as a matter of law. DeLuca v. Winer Industries, Inc., 53 F.3d 793, 796 (7th Cir. 1995). In both cases, our sole inquiry concerns the potential liability of the Village of Bellwood; because Frascone was sued only in his official capacity, a suit against him is deemed to be a suit against the municipality. See Kentucky v. Graham, 473 U.S. 159; Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991).

I. Plaintiff Torry Palermo

Frascone disciplined Palermo for departmental infractions, issuing him a five-day suspension. Palermo appealed his suspension to the Board of Police and Fire Commissioners, who found him guilty of the alleged infractions but reduced the suspension to three days. He did not pursue further administrative relief.

Palermo's claim on appeal is foreclosed by City of St. Louis v. Prapotnik, 485 U.S. 112, which holds that municipal liability will not result from an official's conduct unless the official is a final decision-maker. Under Illinois state law, final authority for issuing disciplinary measures against an officer is vested exclusively in the Board of Police and Fire Commissioners, not the police chief; Palermo successfully pursued a reduction in his suspension pursuant to this statute. 65 ILCS 5/10-2.1-17 (formerly Ill. Rev. Stat. Ch. 24, sec. 10-2.1-17). Because Frascone was not the final decision-maker ...


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