United States District Court, N.D. Illinois
April 14, 2004.
GAYLER COBBS, Plaintiff,
MICHAEL F. SHEAHAN, in his official capacity as Sheriff of Cook County, Illinois, et al., Defendants
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Gayler Cobbs brought this action against the defendants
alleging that they unlawfully retaliated against her by demoting her
because she refused to donate money to defendant Michael Sheahan's
reelection campaign and also because she is a black female. Defendants
filed a motion to dismiss all counts pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that plaintiff fails to state a claim for
relief. For the following reasons, defendants' motion is denied.
Plaintiff has been employed by the sheriff's department of Cook County
since 1985. On July 11, 2001, she was allegedly demoted from her position
as the assistant director of the boot camp program to the position of
sergeant in the Department of Corrections. Defendant Sheahan serves in
the elected position of Sheriff of Cook County and defendants Patrick
Durkin, Thomas Dourdy and James Ryan are employees of the sheriff's
department. Citizens for Michael Sheahan is a private political campaign
committee established pursuant to Illinois law on behalf of Sheahan. Plaintiff claims that defendants, together with other individuals,
conspired to improperly collect donations for Sheahan's reflection
efforts. She alleges that employees of the department were forced to
contribute to the campaign and that those who refused were disciplined or
demoted. Specifically, plaintiff points to a series of conversations in
early 2001, when defendants Durkin and Dourdy allegedly handed her
tickets to a fundraiser on behalf of Sheahan and asked her to sell them.
When she refused, Dourdy allegedly questioned her loyalty and told her
that the refusal would not look good on her record. She was demoted
shortly after these events. Plaintiff also claims that another employee,
Denis Micnerski, protested defendants' request for donations and was
eventually demoted, even though he gave $500 to the campaign.
Alternatively, plaintiff claims that defendants had no proper reasons
to demote her and that their action was motivated entirely by her race
and her gender.
In deciding a Rule 12(b)(6) motion to dismiss the court must assume the
truth of all well-pleaded allegations, making all inferences in the
plaintiff's favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund,
25 F.3d 417, 420 (7th Cir. 1994). The court should dismiss a claim 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, 355 U.S. 41, 45-46 (1957). While the complaint does not need to
provide the correct legal theory to withstand a Rule 12(b)(6) motion, it
must allege all of the elements necessary to recover. Ellsworth v. City
of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047
Plaintiff's complaint consists of five counts. In count I, she alleges
violations of the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1962(c). In count 11, she alleges violations of
her First Amendment right pursuant to 42 U.S.C. § 1983. In count III, she claims violations of her equal protection rights under section
1983, based on her gender. In count IV, she alleges violations of these
rights based on her race. In count V, she alleges violations of her right
to contract under 42 U.S.C. § 1981.
Count I RICO
To state a claim under section 1962(c), plaintiff must allege conduct
of an enterprise through a pattern of racketeering activity. Goren v. New
Vision Intern., Inc., 156 F.3d 721, 727 (7th Cir. 1998). It is not enough
for plaintiff to simply allege these elements in boilerplate language;
the complaint must contain sufficient facts supporting each element. Id.
To satisfy the conduct element, plaintiff must allege facts showing
that each defendant played a role in the operation or management of the
enterprise. Reyes v. Ernst & Young, 507 U.S. 170, 179 (1993). As we read
plaintiff's complaint, she alleges that each defendant played an active
role in the solicitation of funds and helped to develop the plan. She
therefore satisfies the first element of her RICO claim.
She also alleges the existence of an "association in fact" enterprise.
RICO requires that such an enterprise be more than just a group of
individuals who decide to commit racketeering; it must have "goals
separate from the predicate acts themselves." United States v. Masters,
924 F.2d 1362, 1367 (7th Cir. 1991); Stachon v. United Consumers Club,
Inc., 229 F.3d 673, 675 (7th Cir. 2000) (while it may be informal, there
must be some type of organizational structure).
In Stachon, the plaintiffs allege that the United Consumers Club (UCC)
and five of its officers and/or directors conspired to fraudulently
represent to potential members that the UCC had access to first quality
merchandise at special prices, 229 F.3d at 674. The plaintiffs claim that
they relied on these misrepresentations when joining the UCC. Id. In
affirming the dismissal of plaintiffs' RICO claim, the Seventh Circuit
determined that plaintiffs failed to allege that the acts were the work of an organization separate from the
UCC. Id. at 676. At most, the complaint established that there was a
pattern of misrepresentation by a group of defendants. Id.
While the overall structure of the organization as alleged by plaintiff
is similar to that in Stachon, she alleges that an association existed
that had goals separate from the sheriff's office itself. If proven, an
enterprise was created when the sheriff's department and Sheahan's
re-election efforts essentially merged. Plaintiff claims that these two
groups formed an association in fact when it, through the individual
defendants, extorted money from plaintiff and other employees in
furtherance of its goal of re-electing Sheahan.
The final element that plaintiff must allege is a pattern of
racketeering activity. This requires, at a minimum, two predicate acts.
Slaney v. The Intern. Amateur Athletic Federation, 244 F.3d 580,598-99
(7th Cir. 2001). 18 U.S.C. § 1961 sets forth various forms of criminal
activity that may satisfy this requirement. If alleging fraudulent acts
in furtherance of the scheme, a plaintiff must plead specific facts so as
to satisfy Rule 9(b). Slaney, 244 F.3d at 599.
Defendant is correct that plaintiff fails to sufficiently allege fraud
by the enterprise. While she does point to a few specific demands for
money by defendants, she does not allege any specific misrepresentations
upon which she or other department employees relied. The mere demand for
money (in plaintiff's case, an unsuccessful demand) does not amount to
fraud. See Micnerski v. Sheahan, 2003 WL 22159025, *2 (N.D. Ill..) (case
arising from nearly identical facts and involving the same defendants as
Another predicate act listed in section 1961 is a violation of
18 U.S.C. § 1951, which defines extortion as "the obtaining of property
from another, with his consent, induced by wrongful use of actual or
threatened force, violence or fear, or under color of official right." RICO also encompasses extortion as defined by state law if that crime is
punishable by more than one year in prison. 18 U.S.C. § 1961. The issue
here is whether the alleged demand for a political contribution in return
for a patronage job constitutes extortion. We believe that it does.
There is no question that plaintiff here properly alleges that
defendants obtained and attempted to obtain property. See Scheidler v.
National Organization of Women, 537 U.S. 393, 400-08, 123 S.Ct. 1057
(2003) (holding that women who attempted to stop abortions by protesting
outside of a clinic did not commit extortion in violation of RICO because
they did neither pursued nor received anything of value). Because
defendants allegedly asked for valuable property (namely, money), the
only question is whether they did so under the color of right.
A defendant commits extortion when he promises services in exchange for
money, or threatens to withhold services if such a payment is not made.
United States v. Balzano, 916 F.2d 1273, 1285 (7th Cir. 1990). The harm
threatened by a defendant may be entirely economic in nature. United
States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989). When a plaintiff
seeks to show extortion by a defendant in connection with seeking
campaign contributions, she must allege an explicit quid pro quo a
threat or promise accompanying the demand for funds. McCormick v. United
States, 500 U.S. 257, 273 (1991).
In United States v. Farley, 2 F.3d 645, 648-49 (6th Cir. 1993), the
defendants allegedly solicited campaign contributions in exchange for
honorary deputy sheriff commissions. The court held that the
commissions, though of debatable value, constituted an improper quid pro
quo and the exchanges therefore constituted extortion. See also United
States v. Dozier, 672 F.2d 531, 540 (5th Cir. 1982) ("any public officer
who makes performance (or nonperformance) of an official act contingent
upon payment of a fee whether or not the fee actually is paid or the act actually performed is guilty of extortion `under the color of
We read plaintiff's complaint as alleging that defendants explicitly
conditioned employment decisions within the office on campaign
contributions. Moreover, she alleges that defendants engaged in this
conduct over a period of many years, and solicited money from several
employees of the department. The goal of this alleged scheme was to raise
substantial money and secure the re-election of Michael Sheahan. While
the "services" allegedly promised or withheld by defendants differ from
those in Farley, we believe that federal law prohibits public officials
from using their substantial hiring and firing power over departmental
employees to secure political contributions from those employees.
Count II First Amendment Retaliation
To state a claim for retaliation based on speech, plaintiff must allege
that she was engaged in constitutionally-protected speech and that
defendants retaliated against her because of that speech, Caldwell v.
City of Elwood, 959 F.2d 670, 672 (7th Cir. 1992). Notwithstanding
defendants' contentions to the contrary, there is no heightened pleading
requirement for such a claim, and Rule 8 applies. Swierkiewicz v.
Sorema, 534 U.S. 506, 513 (2002). Defendants argue that plaintiff's claim
fails because she does not plead facts showing that the speech was of
public concern and because she does not allege a causal connection between
the speech and the demotion.
These arguments raise detailed factual questions and are therefore
better suited for a summary judgment motion. Plaintiff alleges that she
was demoted when she refused to donate to the political campaign and
refused to sell tickets on behalf of the sheriff's reelection efforts.
Such a dispute goes beyond the realm of her employment and rises to a
level of public concern. See Gustafson v. Jones, 117 F.3d 1015, 1019 (7th
Cir. 1997). The complaint also alleges sufficient facts to allow an
inference that this refusal to donate was the motivating factor in plaintiff's demotion. Forcing her to plead "magic words" Is entirely
unnecessary. She will, of course, need to prove such a causal connection
in order to prevail on this claim. See id. at 1018-19.
Counts III & IV Gender/Race Discrimination
To state a claim for violation of equal protection rights under section
1983, plaintiff must allege that the defendants were acting under the
color of state law and that their conduct violated her established rights
as protected by the Constitution. Lanigan v. Village of East Hazel
Crest, III., 110 F.3d 467, 471 (7th Cir. 1997). Such a claim may be
brought only against those responsible for the deprivation of rights.
See Sanville v. McCaughtry, 266 F.3d 724,740 (7th Cir. 2001). Plaintiff
may not rely on the doctrine of respondeat superior, but must instead
allege personal involvement by each defendant in the wrongdoing. Id.
citing Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir.
2001). Supervisory liability may be alleged if a defendant, with
knowledge of a subordinate's conduct, approves of the conduct and the
basis for it. Lanigan, 110 F.3d at 477. Alternatively, a plaintiff may
plead that the injuries were the result of an official governmental policy
or custom. Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 734
(7th Cir. 1994) (unrelated section of the case superceded by Indiana
statute), citing Monell v. Department of Social Services of City of New,
436 U.S. 658, 694(1978).
Again, defendants' arguments that plaintiff fails to allege requisite
personal involvement are better left for the summary judgment stage.
While plaintiff will bear a heavy burden in proving that defendants were
motivated by her race or gender when demoting her, she alleges a
violation of her rights. At the very least, she alleges that each
defendant knew of the improper conduct and condoned it. Stagman v.
Ryan, 176 F.3d 986, 999 (7th Cir. 1999). She also claims that each
of the defendants had some policymaking authority and that the behavior of the defendants represented an improper departmental custom
pursuant to Monell. See Baxter, 26 F.3d at 735. This is sufficient to
successfully state a claim for relief.
Count V Section 1981 Contractual Rights.
Finally, we reject defendants' argument that plaintiff fails to allege
the existence of a valid contractual right Section 1981 prohibits
discrimination in a contractual relationship, both during and after its
formation. Walker v. Abbott Laboratories, 340 F.3d 471, 478 (7th Cir.
2003). This protection applies equally to at-will employees such as
plaintiff. Id. Plaintiff alleges that she was treated differently by her
employers and eventually demoted because of her race, thereby stating a
claim under section 1981.
For the foregoing reasons, defendants' motion to dismiss is denied.
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