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),
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.
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.
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
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
Plaintiff has failed to plead an express policy of retaliation by the
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
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
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 ...