The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff David Ouzounian brings this action under 42 U.S.C. § 1983 and
Illinois state law against Cook County Sheriff Michael Sheahan, Inspector
General Joseph Shaughnessy, Investigators Thomas Swaine and Rodney
Pavilionis, and an individual citizen named Nick Andrews, alleging that
they violated his constitutional and state rights by arresting and
indicting him on false charges of attempting to solicit a bribe and
suspending him from his position as a Deputy Cook County Sheriff without
due process. Specifically, Count I charges Shaughnessy, Swaine, and
Pavilionis with false arrest under § 1983, Count II charges Sheahan with
a due process violation under § 1983, and Count III charges Swaine,
Pavilionis and Andrews with malicious prosecution under Illinois law. Now
before the court are Sheahan's, Shaughnessy's, Swaine's, and Pavilionis's motions to dismiss the charges against
them pursuant to FED. E. CIV. P. 12(b)(6) for failure to state a claim
upon which relief can be granted. For the following reasons, defendants'
motion to dismiss is denied.
Ouzounian's first amended complaint alleges the following facts which
are assumed to be true for the purpose of this motion. Frederick v.
Simmons Airlines, Inc., 144 F.3d 500, 502 (7th Cir. 1998). In August
of 1999 a levy was held at a restaurant located at 1330 W. Madison in
Chicago, Illinois, and the Cook County Sheriff's Department took control
of the premises, including all its equipment. At this time defendant Nick
Andrews, the owner of the property, demanded return of the keys so he
could retake possession of the property. Ouzounian, who was then a Deputy
of Cook County for the Department of Revenue, explained to Andrews that
his property had been lawfully seized by the Sheriffs department. Notices
were subsequently posted at the building giving public notice of the levy
and the scheduled public sale.
On August 23, 1999, the Department of Revenue conducted an auction of
the property and an individual named John Ress placed the winning bid. On
September 3, 1999, Ress contacted Ouzounian and said he had just driven
past the restaurant and observed Andrews, accompanied by Chicago Police
officers, breaking into the property. Ouzounian then called Andrews and
spoke with a Chicago Police Lieutenant who said he had been ordered by
his Commander to protect Andrews while he changed the locks on the
building. Ouzounian informed the Lieutenant and Andrews that the property had been seized by the Cook County Sheriff's Department and if they
did not leave they would be arrested for criminal trespass.
After contacting his supervisors, Ouzounian was ordered to the scene to
secure the property. Upon arriving at the restaurant, Ouzounian
discovered that the locks had been changed. Ouzounian again contacted
Andrews and ordered him to turn over the new keys to the restaurant. When
Andrews refused, Ouzounian filed criminal charges against him. It is at
this time that Ouzounian learned, through unnamed sources, that Andrews
had powerful "political connections." These political connections
supposedly included ties to the Inspector General's Office where
defendants Shaughnessy, Swaine, and Pavilionis allegedly conspired to aid
Andrews and thwart Ouzounian's efforts to regain possession of Andrews'
property on behalf of the Cook County Sheriffs office.
In an apparent act of retaliation against Ouzounian, Andrews made
allegations and pursued a charge that Ouzounian attempted to solicit a
bribe. Defendants at the Inspector General's Office allegedly failed to
meaningfully investigate this charge, and instead conspired with Andrews
to prosecute a criminal charge against Ouzounian that defendants
Shaughnessy, Swaine, and Pavilionis knew was false. On October 4, 2000,
the criminal allegations of the Inspector General's office and the
actions of Andrews resulted in Ouzounian being "indicted and
charged/arraigned" for attempting to solicit a bribe.
As a result of the charges filed against Ouzounian, Sheriff Sheahan
suspended him from his deputy position without pay. Ouzounian never
received a pre-suspension hearing and it is unclear from the amended
complaint whether any post-suspension hearing occurred. Ouzounian's suspension lasted for approximately
one year. After Ouzounian was found not guilty of attempting to solicit a
bribe he filed charges against defendants in this court,
When considering a motion to dismiss under FED. R. CIV. P. 12(b)(6),
the court must accept as true all well-pleaded facts and must draw all
reasonable inferences from those allegations in plaintiff's favor.
Hernandez v. City of Goshen, 324 F.3d 535
, 537 (7th Cir. 2003). The
federal notice pleading standard requires only that "a complaint state
the plaintiff's legal claim, . . . together with some indication . . . of
time and place." Thomson v. Washington, No. 01-526-DRH, 2004 U.S. App,
LEXIS 6086, at *4-5 (7th Cir. April 1, 2004). The purpose of the pleading
is to give a defendant notice of the claims against him and the grounds
upon which they rest. Thompson v. ILL Dep't of Prof'l Regulation,
300 F.3d 750
, 753 (7th Cir. 2002). Thus, so long as a plaintiff supplies
adequate notice of legal claims which, if factually supported, would
entitle him to relief, his claims will not be dismissed under Rule
12(b)(6). See Washington, supra, at *5.
A. Count I § 1983 False Arrest
A valid claim under § 1983 requires Ouzounian to allege that a person
acting under color of state law deprived him of a federal right. See
Ienco v. City of Chicago, 286 F.3d 994, 997-98 (7th Cir. 2002). That
defendants Sheahan, Shaughnessy, Swaine, and Pavilionis were acting under color of state law at all relevant times
is not in dispute. With respect to the second element, Ouzounian claims
that defendants' "actions of having him charged and arrested violated
[his] constitutional rights as protected under 42 U.S.C. § 1982 [sic]." A
false arrest made without probable cause is actionable under § 1983, but
"malicious prosecution is not tenable as an independent constitutional
theory." Newsome v. McCabe, 256 F.3d 747, 753 (7th Cir. 2001). The
difference between the two is that a false arrest claim asserts a
violation of the fourth amendment's right to be free from unreasonable
seizure while a malicious prosecution claim asserts a violation of due
process under the fifth and fourteenth amendments. Since due process is
satisfied by the opportunity to pursue a claim in state court, Albright
v. Oliver, 510 U.S. 266 (1994), "the existence of a state-law tort remedy
`knocks out' any constitutional tort under due process for the same
conduct." McCullah v. Gadert, 344 F.3d 655, 659-60 (7th Cir. 2003).
Thus, a plaintiff who seeks relief for false arrest under § 1983 must
make clear in his complaint that the arrest itself was executed without
probable cause and that his § 1983 action does not rely on allegations of
wrongful conduct occurring after the arrest.
From the face of Ouzounian's complaint it is impossible to determine
whether he was arrested without probable cause, and therefore impossible
to determine whether he has stated a valid claim for false arrest under
§ 1983. The only facts available to the court are Ouzounian's assertion
that he was "charged and arrested" in violation of his constitutional
rights. If by this Ouzounian means that he was first charged and then
arrested, his § 1983 claim must be dismissed because he admits that his arrest was made pursuant to legal process (assuming that being
"charged" means having a warrant or indictment returned against him). See
Ganger v. Hendle, 349 F.3d 354, 361 (7th Cir. 2003) ("A warrant is legal
process, and so a complaint about conduct pursuant to it is a challenge to
legal process and thus resembles malicious prosecution.") But if
instead Ouzounian means that his arrest occurred first, prior to his
being charged, there could exist at least the possibility that the arrest
occurred without probable cause.
Liberal as they are, federal notice pleading standards still require a
plaintiff to plead "the bare minimum facts necessary to put the
defendant[s] on notice of the claim so that [they] can file an answer."
Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002). Here, Ouzounian has
pleaded facts that are insufficient to inform the court or defendants of
the circumstances of his false arrest claim. But since his complaint
contains enough to suggest that there might exist a set of facts which,
if proven, would entitle him to relief, the court gives Ouzounian 30 days
from the date of this order to amend his complaint accordingly.
B. Count II § 1983 Due Process
Ouzounian claims that his year-long suspension from the Cook County
Sheriff's Office without pay violated his constitutional right to due
process because it occurred with "no evidence presented at any hearing"
and despite "having no legitimate hearing." To state a colorable due
process claim under § 1983 a plaintiff must plead: (i) the existence of a
cognizable property interest, (2) deprivation of that interest, and (3) a
denial of due process. Licari v. City of Chicago, 298 F.3d 664, 668 (7th
Cir. 2002). The first two elements are satisfied easily in this case. First, in light
of applicable federal and Illinois law, Ouzounian has a constitutionally
protected property interest in his continued paid employment as a
sheriff's deputy. Gilbert v. Homar, 520 U.S. 924, 928 (1997) ("The
protections of the Due Process Clause apply to government deprivation of
those prerequisites of government employment in which the employee has a
constitutionally protected `property' interest."); Lalvani v. Cook
County, Ill., 269 F.3d 785, 791 (7th Cir. 2001) ("[A] claim of
entitlement is typically rooted in statutory or contractual language
indicating that the employee cannot be terminated but for cause."); 55
ILCS 5/3-7012 ("no deputy sheriff in the County Police Department . . .
shall be removed, demoted, or suspended except for cause, upon ...