that "Smith, an ODA at CCH, had been arrested for a DUI and/or had 'almost' been arrested for his behavior with members of the CPD." (Am. Compl. at 6.) According to Smith, the Bureau and V103 published and disseminated the story without reasonable grounds as to its truth, and without contacting the ODA or Public Affairs Department at CCH for confirmation or denial. When Smith returned home from work on the morning of February 13, 1997, he received several telephone calls from his friends, family, and colleagues; all of them had heard the media reports concerning Smith and wanted to know what had happened.
Seeking redress for the humiliation he has allegedly suffered, Smith filed a two-count complaint in federal court. As amended, Count I alleges that the City, by and through Turlan and other CPD personnel acting in their official capacities, "intentionally, knowingly, maliciously and willfully permitted and/or made misstatements of fact to the media regarding Mr. Smith and depriving [sic] him of his liberty interests pursuant to 42 U.S.C. § 1983." (Am. Compl. at 4.) In the alternative, Smith "alleges that [the City] acted with gross negligence, amounting to a deliberate indifference to his constitutional liberty interests, in violation of 42 U.S.C. § 1983." (Id.) As amended, Count II alleges per se defamation, in that the "conduct [of the Bureau and V103] was intentional and/or grossly negligent in their reckless disregard for the truth. Further, [the Bureau and V103] knew or should have known that said statements and acts would certainly and substantially cause Mr. Smith to suffer severe embarrassment, problems within his profession, anxiety and mental distress." (Id. at 6.)
Each Defendant now moves to dismiss Smith's complaint pursuant to Fed. R. Civ. P. 12(b)(6).
A. Standard for a Motion to Dismiss
In reviewing Smith's complaint, the court must accept all well-pleaded factual allegations as true, and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). At the same time, however, the court need not accept conclusory legal allegations as true. Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). A complaint should not be dismissed unless "it is impossible [for the plaintiff] to prevail 'under any set of facts that could be proved consistent with his allegations.'" Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984)). "'It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985)).
B. Section 1983
In support of its motion to dismiss Smith's § 1983 claim, the City argues that: (1) Smith's claim for defamation against the City is not actionable; (2) Smith failed to allege a § 1983 claim against the City; and (3) a § 1983 claim based on gross negligence is not cognizable.
"The text of [§ 1983] purports to create a damages remedy against every state official for the violation of any person's federal constitutional or statutory rights." Kalina v. Fletcher, 139 L. Ed. 2d 471, 118 S. Ct. 502, 506 (1997). In other words, "section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir. 1997). Thus, "'to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under color of state law.'" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996)).
"The first step in any § 1983 analysis is to pinpoint the specific constitutional right which was allegedly violated." Spiegel 121 F.3d at 254; see also Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994). Here, Smith fails to allege that the City violated a specific constitutional right. Rather, Smith merely states that the City "deprived him of his liberty interests." (Am. Compl. at 4.) Apparently, Smith believes that a defamation claim, standing alone, is actionable under the Constitution by way of § 1983. However, "the Constitution does not forbid libel and slander." Davis v. City of Chicago, 53 F.3d 801, 804 (7th Cir. 1995) (citing Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991); Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)); see also Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) ("Defamation alone by a public officer is not a constitutional tort, because the interest that it invades, the interest in reputation, is not deemed liberty or property within the meaning of the due process clauses of the Constitution . . . .") (citations omitted); Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 199 (7th Cir. 1996) ("Defamation . . . even when committed by a public body is not a constitutional tort."); Kernats, 35 F.3d at 1175 ("Of course, every official abuse of power, even if unreasonable, unjustified, or outrageous, does not rise to the level of a federal constitutional deprivation."); Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 31-32 (2d Cir. 1994) ("Defamation alone, even by a government entity, does not constitute a deprivation of liberty protected by the Due Process Clause.").
And while the Constitution "does curtail the use of falsehoods that deprive a person of employment," Davis, 53 F.3d at 804, Smith does not allege in his amended complaint that he lost his job, was denied employment opportunities, or suffered any adverse employment action as a result of the City's allegedly defamatory statements. As the Seventh Circuit explained in Olivieri :
When the character and circumstances of the [plaintiff's] defamation are such as to have foreclosed his freedom to take advantage of other employment opportunities he can bring a suit based on the deprivation of his liberty of employment or occupation. . . . The distinction between mere defamation and an infringement of liberty of occupation is merely one of degree, especially when the person relates to a person's fitness for a particular type of employment, but it is a distinction to which the courts are committed.