from his alleged permanent transfer. As such, plaintiff fails to state a claim that he was deprived of a property interest without due process of law because of his alleged permanent transfer.
This court finds no merit to plaintiff's claim, based on the CBA, that he had a property interest in not being permanently transferred without due process. It is true that a property interest may arise out of a contract. See Hadley v. County of DuPage, 715 F.2d 1238, 1241-42 (7th Cir. 1983). However, the Seventh Circuit has indicated that "to create a justifiable and reasonable expectation of job security, and thereby establish a property interest, there must be a mutually explicit understanding between the parties." See id. at 1242. In the present case, the complaint is devoid of allegations reflecting that there is a mutual agreement between the parties in the CBA to prohibit involuntary transfers, permanent or otherwise, or that there is a mutual agreement between the parties providing for a hearing, or other procedural safeguards, prior to or in connection with a transfer. As a result, any claim that count II sufficiently alleges a deprivation of a property interest based on the CBA is without merit.
b. Liberty Interest
Next, this court addresses whether, based on the alleged permanent transfer of plaintiff, count II sufficiently avers a claim that plaintiff was deprived of a liberty interest without due process of law. As stated, the complaint avers that plaintiff was permanently transferred out of the Prostitution Unit and into a uniformed patrol unit in the twenty-first district in retaliation for plaintiff's protesting of defendant Aguinaga's alleged misconduct and association with a known prostitute. The complaint also avers that the alleged permanent transfer 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.
This court finds that the allegations relied on in count II fail to reflect that plaintiff was deprived of a liberty interest without due process of law. It is true that plaintiff has a liberty interest in pursuing his occupation. See Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1409 (7th Cir. 1994). Defendants were therefore required to afford plaintiff due process if, in the process of transferring him, they publicly charged him with immorality, dishonesty, or the equivalent thereof, or otherwise stigmatized him in a way that foreclosed other employment opportunities. See id. In this case, the complaint does not contain allegations indicating that defendants publicly charged plaintiff with immorality, dishonesty, or the equivalent thereof, or that the alleged permanent transfer out of the Prostitution Unit into a patrol unit in the twenty-first district humiliated and/or stigmatized him so as to affect his future employment opportunities. As a result, count II fails to assert a cause of action that plaintiff was deprived of a liberty interest without due process of law. See, e.g., Watson v. U.S. Department of Housing and Urban Development, 576 F. Supp. 580, 584-85 (N.D. Ill. 1983) (transferred government employee failed to allege a due process claim for deprivation of liberty interest where "the government had not made any charge against [the plaintiff] that might seriously damage his standing in the community, such as a charge of dishonesty or immorality.").
This court also finds no merit to plaintiff's claim that count II sufficiently avers a deprivation of plaintiff's liberty interests based on his alleged permanent transfer because, in plaintiff's view, the complaint avers that plaintiff was retaliated against for exercising his First Amendment rights. It is true that a substantive due process claim against a state official for the alleged violation of a plaintiff employee's right to free speech by retaliating against the plaintiff for his speech "would be possible because the First Amendment has been incorporated into the Fourteenth Amendment as a liberty interest." Lawshe v. Simpson, 16 F.3d 1475, 1479 (7th Cir. 1994). In that connection, the Seventh Circuit has recognized that state retaliatory conduct constitutes a substantive due process violation if the retaliation was for exercising constitutional rights. See Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). However, as previously discussed, the complaint fails to contain allegations reflecting that defendants violated plaintiff's First Amendment free speech rights. As such, plaintiff fails to state a substantive due process claim based on the alleged violation of his free speech rights. Hence, the court dismisses count II of plaintiff's complaint because it fails to state a due process claim on behalf of plaintiff.
C. § 1983 Claim for Unconstitutional Customs and Practices (Count III)
This court also finds that count III fails to state a § 1983 claim against defendants. Count III seeks relief against defendants under § 1983 for the alleged maintenance of unconstitutional customs and practices. Count III avers that defendants: conspired together to violate plaintiff's constitutional and civil rights; demonstrated a continued and deliberate indifference to plaintiff's constitutional and civil rights; and have "wholly failed to take steps to initiate measures necessary to redress these constitutional violations." Count III does not raise a constitutional right alleged to have been violated other than those complained of in counts I and II respectively, i.e., plaintiff's respective claims under the First and Fourteenth Amendments. In addition, aside from incorporating the previously discussed factual allegations relating to plaintiff's alleged transfer, count III does not put forth any additional factual allegations.
This court dismisses count III because, like counts I and II, it fails to contain allegations which, if true, reflect that plaintiff has suffered a constitutional injury. As stated, in order to support a § 1983 claim against the City and the defendants in their official capacity, a plaintiff must allege facts which, if true, show that plaintiff suffered a constitutional deprivation resulting from a municipal policy or custom. See Graham, 473 U.S. at 165-66; Perkins, 939 F.2d at 469. Conversely, to support a § 1983 claim against municipal officers in their individual capacity, a plaintiff must allege facts showing that a defendant officer deprived plaintiff of a constitutional right while acting under color of state law. See Graham, 473 U.S. at 165. In this case, as previously discussed, plaintiff fails to state a claim that he suffered a First or Fourteenth Amendment deprivation. Count III does not claim that any of plaintiff's other constitutional rights were violated and does not put forth any additional factual allegations reflecting that plaintiff suffered a First or Fourteenth Amendment deprivation. Therefore, since count III fails to contain allegations which, if true, reflect that plaintiff suffered a constitutional deprivation, this court dismisses plaintiff's § 1983 claim in count III.
III. Plaintiff's Claim Under § 1985(3) (Count III)
Count III also seeks relief under § 1985(3). However, this court finds that, like plaintiff's § 1983 claim in count III, plaintiff's § 1985(3) claim fails to contain allegations reflecting that plaintiff suffered a constitutional deprivation and therefore fails to state a claim upon which relief may be granted. In order to state a claim under § 1985(3), a plaintiff must allege: (i) the existence of a conspiracy; (ii) for the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (iii) an act in furtherance of the conspiracy; (iv) which results in an injury to person or property or a deprivation of a right or privilege granted to a citizen of the United States. See United Brotherhood of Carpenters and Joiners, Local 610, et al. v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3355-56, 77 L. Ed. 2d 1049 (1983); Hartman v. Bd. of Tr. of Com. College Dist. 508, 4 F.3d 465, 469 (7th Cir. 1993). In this case, without considering whether the allegations relied on in count III satisfy the other elements, it is clear that count III fails to contain allegations supporting the second and fourth elements of a § 1985(3) claim. In connection with the second element of a § 1985(3) claim, a plaintiff must aver "'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Scott, 463 U.S. at 829 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798-99, 29 L. Ed. 2d 338 (1971)). Nowhere in the allegations relied on in count III does plaintiff aver that the alleged permanent transfer was motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." As a result, count III fails to contain allegations supporting the second element of a § 1985(3) claim. In addition, as previously discussed, the complaint fails to contain allegations reflecting that plaintiff suffered a constitutional injury because of the alleged permanent transfer. Consequently, count III fails to contain allegations supporting the fourth element of a § 1985(3) claim. Hence, this court dismisses plaintiff's § 1985(3) claim against defendant in count III.
For the foregoing reasons, plaintiff's complaint is dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. Plaintiff's § 1983 and § 1985 claims based on the allegations which are outside the statute of limitations for such claims are dismissed with prejudice. However, plaintiff's claims based on the allegations which are within the limitations period are dismissed without prejudice. Plaintiff is given leave to -- consistent with his Rule 11 obligations -- file an amended complaint based on the allegations within the limitations period within thirty days after the entry of this disposition.
BLANCHE M. MANNING
United States District Court Judge
Date: JUN 23 1997
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