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ATLAS v. CITY OF NORTH CHICAGO

March 11, 2004.

MICHAEL E. ATLAS, Plaintiff
v.
THE CITY OF NORTH CHICAGO, an Illinois Municipal Corporation, MAYOR BETTE THOMAS individually, and in her official capacity, and DEVON MOSESEL individually, Defendants



The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Defendants, City of North Chicago ("City"), Bette Thomas ("Thomas"), and Devon Mosesel ("Mosesel") (collectively "Defendants"), filed a motion to dismiss plaintiff's, Michael Atlas ("Atlas"), eight-count complaint in its entirety pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6).*fn1 Atlas has agreed to voluntarily dismiss Count I for conspiracy under 42 U.S.C. § 1985(2) without prejudice, and it is so ordered. The motion to dismiss the remaining counts for First Amendment Retaliation in violation of 42 U.S.C. § 1983 (Count IV) and various state claims is the subject of this opinion.*fn2 Atlas' state claims include intentional infliction of emotional distress (Count II), Page 2 battery (Count III), retaliatory discharge (Count V), public disclosure of private facts (Count VI), false light (Count VII), and City liability under 745 ILCS § 10/9-102 (Count VIII). For the following reasons, we GRANT in part and DENY in part Defendants' motion to dismiss.

Factual Background

  Atlas began working for the City on August 27, 2001 in its Comptroller's Department. At that time, Thomas was the mayor of the City and Mosesel was a City employee. Sometime in July, 2002, while at work, Atlas was served with a subpoena, ordering him to appear before the Lake County, Illinois Grand Jury on July 17, 2002. The claims in Atlas' complaint stem from actions he alleges Thomas, Mosesel and other City employees undertook from the time he received the subpoena, until he was terminated from his employment with the City in December, 2002. Atlas alleges that he was retaliated against in violation of federal and state law and subjected to various state law torts in an initial attempt to dissuade him from complying with the subpoena, and later, in retaliation for his subsequent compliance with the subpoena.

 Legal Analysis

  In granting a motion to dismiss pursuant to Rule 12(b)(6), the court must "accept as true all of the factual allegations contained in the complaint." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Dismissal is appropriate only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, Page 3 355 U.S. 41, 45-46 (1957). Plaintiff's well-pled complaint need only "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47. The "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema NA., 534 U.S. 506, 512 (2002).

 Count IV — Retaliation in violation of 42 U.S.C. § 1983

  Because plaintiff voluntarily dismissed his federal conspiracy claim under 42 U.S.C. § 1985(2), we begin by addressing his only remaining federal claim, First Amendment Retaliation in violation of 42 U.S.C. § 1983 (Count IV). If Defendants succeed on their motion to dismiss Count IV, we could end our analysis of the motion and decline to extend supplemental jurisdiction over Plaintiff's remaining state court claims. However, Defendants' motion to dismiss Count IV fails as to defendant Thomas, so our analysis of the state claims must proceed.

  There ARB separate standards for pleading a § 1983 claim against the City, a municipality, and Thomas and Mosesel, individuals. In order to state a valid First Amendment retaliation claim against the City, Atlas must plead that his civil rights violations resulted from (1) an express policy of the City, (2) a widespread practice or custom within the City, or (3) the actions of a person with final policymaking authority. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978); Looper Maintenance Serv. V. City of Indianapolis, 197 F.3d 908, 912 (7th Cir. 1998). The City cannot be held liable under the theory of respondeat superior.

  Plaintiff has failed to plead an express policy of retaliation by the City, that Page 4 retaliation is a widespread practice or custom within the City, or that any of the actions alleged in the complaint were undertaken by a person with final policymaking authority. Atlas does plead that Thomas, the mayor of the City, committed or ordered the alleged retaliatory actions. However, Atlas does not plead that Thomas has final policymaking authority with the City. Therefore, Defendants' motion to dismiss Count IV for First Amendment retaliation as to the City is granted without prejudice.

  In order to state a valid First Amendment retaliation claim against the individual defendants, Atlas must allege that (1) he was engaged in constitutionally protected speech, (2) retaliation having a materially adverse employment action occurred, and (3) his complaints were a substantial motivating factor in the adverse employment actions. Picketing v. Board of Education, 391 U.S. 563 (1968).

  Plaintiff has not alleged a valid § 1983 claim against Mosesel. Atlas merely alleged that Mosesel battered him by throwing a bottle and hitting him in the eye. Atlas does not allege any conduct by Mosesel that could be grounds for a § 1983 retaliation claim. Consequently, Count IV is dismissed as to Mosesel.

  As for the § 1983 claim against Thomas, Defendants' motion to dismiss only takes issue with the third requirement, a casual link between the protected speech and the adverse employment actions. Specifically, Defendants argue that there must be a short period of time between the protected activity and the adverse employment action. Filipovic v. K. & R. Exp. Systems, Inc., 176 F.3d 390, 404 (7th Cir. 1999). Defendants argue that the five month period between when Atlas complied with the subpoena in July, 2002 and was terminated in December, 2002 is too great a time span to constitute a causal link. Defendants' argument is flawed. There was not a five month time span Page 5 between the protected activity and an alleged adverse employment action. Atlas alleges a series of adverse employment actions throughout this five month period, beginning in July, 2002 and culminating with his termination in December, 2002.*fn3 Atlas is not required to plead in detail all the ...


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