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September 22, 1999


The opinion of the court was delivered by: Moody, District Judge.


Before the court is defendant Michael Sheahan's ("Sheahan") motion to dismiss plaintiff Frederick Burton's ("Burton") complaint for failure to state a claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). In his complaint, Burton, a correctional officer, attempts to state a claim under 42 U.S.C. § 1983 against Michael Sheahan in his official capacity as Sheriff of Cook County for the deprivation of Burton's property without due process of law. For the following reasons, Sheahan's motion to dismiss is DENIED.

1. Factual Background

The following facts alleged in the complaint are presumed true for purposes of this motion to dismiss. In September, 1995, Sheahan, Cook County Sheriff, ordered that Burton be suspended without pay pending proceedings against Burton before the Sheriff's Merit Board. Eighteen months later, in March, 1997, the Sheriff's Merit Board suspended Burton for 120 days. Thereafter, Sheahan refused both to pay Burton his backpay and to restore Burton to his original seniority date for the 18-month period prior to the Merit Board's determination. Burton is now in federal court claiming deprivation of his right to due process under the Fourteenth Amendment to the United States Constitution and seeking restoration of his backpay and seniority status.

  2. Standard of Review: Motion to Dismiss for Failure to State
    a Claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

Lying at the heart of this court's difficulty with Sheahan's motion to dismiss Burton's complaint is the Seventh Circuit's lack of consistent guidance in its review of cases involving dismissals for failure to state a claim. In one line of cases, the Seventh Circuit has stated that it adheres to the traditional standard on a motion to dismiss for failure to state a claim, pursuant to which this court accepts as true all well-pleaded factual allegations of the complaint and draws all reasonable inferences therefrom in the light most favorable to the plaintiff. See New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474 (7th Cir. 1990). This court must not dismiss a complaint for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Consistent with this approach, the Seventh Circuit indicated in Bartholet v. Reishauer A.G. that "[a] drafter who lacks a legal theory is likely to bungle the complaint (and the trial); you need a theory to decide which facts to allege and prove. But the complaint need not identify a legal theory, and specifying an incorrect theory is not fatal." Bartholet, 953 F.2d 1073, 1078 (7th Cir. 1992). Two years later, in Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), the court again made it clear that:

  Any need to plead facts that, if true, establish each
  element of a "cause of action" was abolished by the
  Rules of Civil Procedure in 1938, which to signify
  the radical change from code pleading also replaced
  "cause of action" with "claim for relief." One pleads
  a "claim for relief" by briefly describing the
  events. At this stage the plaintiff receives the
  benefit of imagination, so long as the hypotheses are
  consistent with the complaint. Matching facts against
  legal elements comes later.

And more recently, in Albiero v. City of Kankakee, the court addressed a common "pair of misconceptions" surrounding what facts must be alleged in a complaint in order to survive a motion to dismiss:

  One is that a complaint must set out, and that its
  validity depends on, a legal theory, such as "due
  process" or "equal protection." That is not so:
  matching facts to a legal theory was an aspect of
  code pleading interred in 1938 with the adoption of
  the Rules of Civil Procedure. A complaint must
  narrate a claim, which means a grievance such as
  "the City violated my rights by preventing me from
  renovating my apartments." Having specified the wrong
  done to him, a plaintiff may substitute one legal
  theory for another without altering the complaint.
  The other misconception is that a complaint must
  allege all of the facts essential to recovery under
  the plaintiff's legal theory. Some states, including
  Illinois, use fact pleading to this day, but federal
  courts took a different path

  59 years ago. A complaint may not be dismissed unless
  it is impossible to prevail "under any set of facts
  that could be proved consistent with the

Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (internal citations omitted). In the specific context of a § 1983 suit, as in the present case, the Supreme Court has also consistently rejected the imposition of a heightened pleading standard. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). This court believes this traditional notice pleading standard to be the correct standard for two reasons. First, this standard is faithful to the minimal federal notice pleading standard embodied in the Federal Rules. Second, this standard makes it less likely that meritorious claims will be dismissed prematurely.

The problem, of course, lies in the fact that this court can also cite several examples from another line of Seventh Circuit cases which seem to indicate that there are circumstances other than those required under RULE 9 in which a heightened standard of pleading is required. For instance, in Palda v. General Dynamics Corp., 47 F.3d 872, 874-75 (7th Cir. 1995), the court stated:

  To state a claim for breach of the contract . . .
  [plaintiff] must plead sufficient facts and allege
  the existence of three elements. . . . [Plaintiff]
  must plead all three elements; the failure to plead
  the existence of any of these elements renders his
  complaint deficient. . . . A complaint which consists
  of conclusory allegations unsupported by factual
  assertions fails even the liberal standard of Rule

And most recently, in Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857, 859 (7th Cir. 1999) (internal citations omitted), the court articulated the conflict as follows:

  The tricky issue presented by the appeal is whether
  the district court was right to hold that the
  complaint did not adequately allege Weiser's
  involvement in the October 23 search. . . . All the
  complaint says about him in relation to it is that he
  "conspired" with the other defendants. The question
  is whether this allegation, either by itself or in
  combination with the fact that Weiser is alleged to
  have conducted the search that took place two days
  later, is enough to satisfy the liberal pleading
  standards of the Federal Rules of Civil Procedure,
  standards that we now know federal judges are not
  authorized to tighten up for civil rights cases. . .
  . So the question comes down to whether the bare
  allegation that a defendant conspired with other
  defendants whose unlawful acts are adequately alleged
  satisfies Rule 8 as to that defendant. We think not.
  It is true that all the federal rules require of a
  complaint is that it put the defendant on notice of
  plaintiff's claim; but notice implies some minimum
  description of the defendant's complained-of conduct.
  The purpose of this requirement is less to give the
  defendant enough information to begin to prepare a
  defense — if truly puzzled, he could always serve a
  contention interrogatory on the plaintiff — ...

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