Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 6057--Suzanne B. Conlon, Judge.
Before Flaum, Chief Judge, Bauer and Rovner, Circuit Judges.
The opinion of the court was delivered by: Bauer, Circuit Judge
This case deals with the long-running saga of political patronage hiring and firing in Illinois. See Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion); Rutan v. Republican Party of Ill., 497 U.S. 62 (1990); O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996); see also Shakman v. Democratic Org. of Cook County, 569 F.Supp. 177 (N.D. Ill. 1983).
The plaintiff, Mark E. Thompson, an elected Maine Township Supervisor, sued the Illinois Department of Professional Regulation (IDPR) and others, claiming he was demoted and transferred from his position as Chief Administrative Law Judge (Chief ALJ) for exercising his First Amendment rights of political belief and association. The district court dismissed the suit, finding the position was a policymaking one based on the document describing the position attached to Thompson's complaint. Thompson appeals, arguing the position is not a policymaking one, and that the district court misused and misconstrued the attached document. Finding that Thompson pled himself out of court, we affirm.
Mark E. Thompson was an elected Maine Township Supervisor from 1993 to 2001. In 1999 he was appointed, on a probationary basis, Deputy Chief Counsel for the IDPR. *fn1 Thompson later accepted a voluntary transfer to the position of Chief ALJ of the IDPR in April 2000. *fn2
In October 2000, Thompson fired a Maine Township Code Enforcement Officer, citing the employee for failing to come to work and spending most of his time at home (a.k.a. ghost pay rolling). According to Thompson, the fired employee was a friend of defendants Bob Dudycz and William Darr. Bob Dudycz challenged Thompson for the position of Maine Township Supervisor in 2001, *fn3 William Darr was the Maine Township Republican Committeeman, *fn4 and Walter Dudycz was an elected State Senator. (Bob Dudycz and Walter Dudycz are brothers).
Tensions began to mount between Thompson and Dudycz and Darr. As a result, Thompson was not "slated" as a candidate for Maine Township Supervisor on the Republican ticket. Then, in January 2001, Thompson, a Republican, began openly supporting several Democratic candidates for Maine Township offices. Thompson alleges that thereafter Bob Dudycz, Walter Dudycz, and William Darr conspired with other Illinois State elected officials, including the Governor, to demote and transfer him in retaliation for his actions as Township Supervisor and his political associations.
Thompson, a resident of Des Plaines, was later temporarily transferred to Springfield to occupy the position of IDPR's Chief of Enforcement Administration. Finally, Thompson was transferred back to his original position as IDPR's Deputy Chief Counsel, assigned to work in Chicago.
Thompson filed a two count complaint in district court on August 7, 2001. He amended the complaint, adding an additional count, on September 20, 2001. Count I of the amended complaint alleged that Thompson was transferred and later removed from his position as Chief ALJ in retaliation for exercising his First Amendment free speech rights in violation of 42 U.S.C. § 1983. The employment actions were purported to be politically motivated. Count II was a state law breach of contract claim. Count III was a claim for denial of due process and equal protection for the transfer and removal. Thompson attached the official job description of the Chief ALJ to the amended complaint.
The defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), and the district court granted the motion, finding, as a matter of law, that the ALJ position occupied by the plaintiff was a policymaking position, hence he could be removed for political reasons. In reaching that conclusion, the district court relied wholly upon the job description of the Chief ALJ provided by Thompson. The court also found Director Sherman was entitled to qualified immunity. Thompson appeals the dismissal of Counts I and III, and the denial of his motion for leave to file a third amended complaint.