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LARA v. CITY OF CHICAGO

June 23, 1997

JOSEPH LARA, Plaintiff,
v.
CITY OF CHICAGO, MATT L. RODRIGUEZ, RAYMOND S. RISLEY, RONALD GARCIA, and RICHARD AGUINAGA, Defendants.



The opinion of the court was delivered by: MANNING

 This matter comes before the court on motion of the City of Chicago (the City), Matt L. Rodriguez, Raymond S. Risley, Ronald Garcia, and Richard Aguinaga, defendants herein, to dismiss the complaint of plaintiff, Joseph Lara. Plaintiff's complaint is brought in three counts pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and the First and Fourteenth Amendments to the United States Constitution. Defendants now move this court to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. As discussed in greater detail below, this court grants defendants' respective motions to dismiss plaintiff's complaint.

 BACKGROUND

 The relevant background of this case is derived from the allegations of plaintiff's complaint which are as follows. Plaintiff is a police officer employed by the Chicago Police Department (CPD), and a member of the Fraternal Order of Police. Defendants are the City and various employees of the CPD, who are parties to this lawsuit in their individual and official capacities.

 The complaint further avers that at all relevant times, the Collective Bargaining Agreement (CBA) between the CPD and the Fraternal Order of Police provided that no officer could be punished without just cause. However, despite this provision in the CBA, since as early as 1986 until the present, there has been in effect at the CPD a custom and practice of punishing members of the CPD without cause and in contravention of the CBA. This punishment has been in the form of detailing and transferring officers from more prestigious assignments with the opportunity for overtime to patrol districts.

 The complaint also avers that since as early as 1986, there has been in effect at the CPD a practice of discouraging members of the CPD from protesting unlawful acts and practices committed by CPD officers, including acts and practices involving matters of public concern. This custom and practice has included retaliating against and punishing CPD members for their lawful protest and exercise of clearly established constitutional and federal rights and privileges, including, but not limited to, the exercising of the First Amendment rights to petition, free speech, and association. Forms of retaliation and punishment at the CPD which are indicative of this pattern and practice include, inter alia, summary punishment and disciplinary action without just cause and without due process; attempts to conceal unlawful acts and misconduct by CPD officers; unfavorable and unwanted assignments; transfers; demotions; intimidation; humiliation; abuse of authority; abuse of process; the discrediting and undermining of the reputation, integrity and competence of members of the CPD; failure to properly administer CPD policy and procedure; failure to adopt adequate safeguards to insure the proper adjudication of complaints; failure to properly investigate complaints of misconduct and retaliation brought through the CPD's complaint register procedure (CR), including those brought against command members of the CPD; improper use of the investigatory process of the CPD's Internal Affairs Division (IAD); improper use and abuse of the CPD's disciplinary policies and procedures; failure to properly and adequately penalize command members who violate rules and regulations of the CPD; and the reckless disregard for the medical, physical, privacy, and emotional interests and well-being of CPD members.

 Beginning on or about August 21, 1993, defendants retaliated against plaintiff for protesting misconduct on the part of defendant Aguinaga who, at the time, was Lieutenant and Commanding Officer of the CPD's Prostitution Unit as well as plaintiff's commanding officer. In that connection, on or about September 13, 1993, because of plaintiff's knowledge of defendant Aguinaga's association with a known prostitute, defendant Aguinaga and defendant Garcia, who was Chief of the Organized Crime Division of the CPD at the time, transferred plaintiff out of the Prostitution Unit and into a uniformed patrol unit in the twenty-first district. The complaint avers that this assignment was intended to and did have the affect of: impugning plaintiff's integrity and credibility; depriving plaintiff of overtime compensation and opportunities; and was designed to shield, insulate, and conceal the official misconduct of defendant Aguinaga.

 In or about November 1993, plaintiff protested his assignment to the twenty-first district to defendant Garcia. In so doing, plaintiff indicated to defendant Garcia that, in plaintiff's view, the transfer constituted retaliation against plaintiff for his knowledge of defendant Aguinaga's misconduct and association with a known prostitute. Also in or about November 1993, plaintiff initiated a CR concerning defendant Aguinaga's alleged misconduct and association with a known prostitute.

 The complaint further avers that on or about December 16, 1993, defendants Garcia and Aguinaga caused plaintiff to be permanently transferred into the uniformed patrol unit in the twenty-first district. The complaint asserts that the decision to permanently transfer plaintiff was "in retaliation for plaintiff's protesting defendant Aguinaga's misconduct and association with a known prostitute." The complaint alleges that the permanent transfer of plaintiff into the uniformed patrol unit in the twenty-first district was for the purpose of and had the effect of impugning plaintiff's integrity and credibility and was designed to shield, insulate, and conceal the official misconduct of defendant Aguinaga.

 As stated, plaintiff's complaint is brought in three counts. Each count incorporates the previously discussed factual allegations. Count I seeks relief against defendants under § 1983, claiming that defendants, operating through a pattern of conduct, deprived and interfered with plaintiff's First Amendment rights and that the defendants have failed to remedy or initiate measures necessary to redress the constitutional violations. Count II also seeks relief under § 1983, alleging that defendants, operating through a pattern of conduct, deprived and interfered with plaintiff's Fourteenth Amendment rights and that the defendants have failed to remedy or initiate measures necessary to redress the constitutional violations.

 Count III seeks relief for unconstitutional customs and practices under § 1983 and § 1985(3). In addition to incorporating the previously discussed factual allegations, count III avers that defendants, operating through a pattern of conduct, deprived and interfered with plaintiff's constitutional and civil rights and that the defendants have failed to remedy or initiate measures necessary to redress the constitutional violations. In that connection, count III avers that defendants have done the following:

 
failed to properly supervise, evaluate and review the policies, procedures and customs of the CPD, including but not limited to that of the Personnel Department and the IAD to ensure that the CPD's policies, practices, and customs do not injure, oppress, threaten, intimidate, and interfere with CPD members' free exercise of their constitutional and federal rights;
 
adopted and implemented policies and procedures which oppressed, threatened, intimidated, and interfered with CPD members' free exercise of their federal and constitutional rights;
 
failed to properly train, supervise, and retain command level and supervisory members of the CPD;
 
failed to properly, effectively, and timely discipline and punish members of the CPD found to have engaged in acts that injure, oppress, threaten, intimidate, and interfere with CPD members' federal and constitutional rights, including but not limited to those engaging in sexual harassment and gender based discrimination based on verbal and physical abuse and hostile work environment circumstances;
 
authorized, permitted, and encouraged policies and practices which fostered, promoted, and facilitated actions by and on the part of command level and supervisory personnel which injured, oppressed, threatened, intimidated, and interfered with the federal and constitutional rights of members of the CPD;
 
failed to adopt adequate safeguards to ensure adequate adjudication of the complaint register and investigatory process;
 
failed to adopt adequate safeguards to prevent the improper manipulation and circumvention of the complaint register and investigatory process;
 
failed to adopt adequate policies, procedures, and safeguards to ensure the confidentiality of the complaint register and investigatory process;
 
intentionally and willfully abused the IAD complaint register process by, inter alia, bringing unfounded disciplinary, false statement, and other punitive actions against persons who exercised their First and Fourteenth Amendment rights to protest unlawful employment practices including misconduct on the part of other and superior officers; and
 
interfered with the contractual rights of members of the CPD.

 Count III further avers that each of the individual defendants have either directly participated in the actions against plaintiff or has ...


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