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September 20, 2005.

RODNEY J. WATT, Plaintiff,
CITY OF HIGHLAND PARK, et al., Defendants.

The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge


Plaintiff Rodney J. Watt ("Watt") sues the City of Highland Park, Illinois ("Highland Park" or the "City") and four individual defendants, Deputy Police Chiefs Timothy Benton and Michael Caskey, Police Sergeant Gerald Halley (now retired) and Police Chief Daniel Dahlberg (now retired), under 42 U.S.C. § 1983 and Illinois state law in a four-count amended complaint. Watt's counts are entitled: (i) Retaliation, Harassment & Intimidation Against City of Highland Park (42 U.S.C. § 1983) (count I); (ii) Retaliation, Harassment & Intimidation Against Individual Defendants (42 U.S.C. § 1983) (count II); (iii) Retaliatory Discharge Against City of Highland Park (42 U.S.C. § 1983) (count III); and (iv) Retaliatory Discharge (Illinois Tort Claim) (count IV). The City has moved for summary judgment on all counts.*fn1 For the reasons discussed below, the City's motion is granted as to all counts, except count II. As to count II, the City's motion is granted with respect to Benton, Caskey and Halley, and denied with respect to Dahlberg.


  In its September 30, 2002 order, Watt v. City of Highland Park, No. 01 C 6230, 2002 U.S. Dist. LEXIS 18847 (N.D. Ill. Sept. 30, 2002) ("2002 Order"), the court agreed with defendants' argument that factual findings made by the Civil Service Commission of Highland Park ("Commission") in ordering Watt's termination "are entitled to issue-preclusive effect," meaning that the court accepts the factual findings contained in the Commission's "Findings, Final Decision and Order" ("Commission Order") as to Watt's dismissal, which was entered November 1, 2001. Id. at *11. The Commission Order resulted from a Statement of Charges, filed July 31, 2001, which statement was filed by Dahlberg for the purpose of requesting that the Commission terminate Watt's employment.

  The Commission Order mentions thirty-seven disciplinary charges against Watt, and after five days of hearings in which Watt participated, with the aid of counsel, Watt was found guilty on twenty-one of these charges. These charges were brought in the department's disciplinary complaints CR 00-16, CR 00-029, CR 00-030, CR 00-056, and CR 00-068. These complaints resulted from five incidents occurring between February 15, 2000 and December 17, 2000. The charges and complaints are detailed with specificity in the Commission Order (and the Statement of Charges, which the Commission Order incorporates by reference), and include Watt's acts of insubordination, lying to his superiors at the Highland Park police department when questioned about his activities, failure to respond to calls, and false testimony to the Commission.

  Watt maintains that the department's disciplinary actions and his termination proceedings were brought in retaliation for certain statements he made to the news media and during city council meetings regarding corruption and racial profiling in the Highland Park police department, as well as public statements he made with respect to Watt's opinion that Dahlberg should be removed from his position as chief of police.


  Counts III and IV — Retaliatory Discharge

  Count III

  Watt claims that the City and Dahlberg discharged him in retaliation for Watt's exercise of his First Amendment rights in publicly criticizing the Highland Park police department and Dahlberg. He brings his retaliatory discharge claim under 42 U.S.C. § 1983 against the City and Dahlberg (count III), and his retaliatory discharge claim under state law against the City alone (count IV).

  As an initial matter, citing DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 190 (7th Cir. 1995), defendants argue that the City cannot be liable for Watt's termination because the Commission was the final decisionmaker as to Watt's dismissal, and Watt has no evidence that the Commission's decision to terminate him was motivated in any part by his First Amendment-protected speech. Defendants are correct. In their respective L.R. 56.1 statements, the parties agree that the Commission has final decisionmaking authority with respect to the termination of Highland Park police officers.*fn3 See also 65 ILCS 5/10-1-18(b); Pembaur v. City of Cincinnati, 475 U.S. 469, 482-84 (1986) (Whether an officer has final policy making authority is a question of state law.) As the plaintiffs did in DeGuiseppe, Watt has sued Highland Park as well as its (now former) chief of police for alleged retaliation for Watt's protected speech. As discussed above, the Commission Order's factual findings leading it to dismiss Watt for cause are presumptively true, and Watt has not made any attempt to present evidence (or even allegations) that the Commission itself had any retaliatory motive. Instead, Watt's attempts at proof of retaliatory motive are directed at Dahlberg and the other officers. Even though Dahlberg was the one who requested that the Commission hold a hearing and terminate Watt, DeGuiseppe holds (in a factually analogous situation) that "[b]ecause [the police chief] was not the final decision-maker with respect to [the discipline directed at plaintiff] his conduct cannot serve as the predicate to municipal liability . . .". DeGuiseppe, 68 F.3d at 190. Accordingly, summary judgment is granted for the City on count III.

  Watt also attempts to bring count III against Dahlberg personally. Citing Conner v. Reinhard, 847 F.2d 384 (7th Cir. 1988), Watt argues that Dahlberg acted with a retaliatory motive when he "set in motion a series of events" that caused Watt's termination, namely recommending Watt for termination to the Commission. Dahlberg responds that he cannot be liable for Watt's discharge because he did not terminate Watt, the Commission did, and, because the Commission did not act out of retaliatory motive, there was no constitutional violation in which Dahlberg could have participated. Dahlberg is correct.

  Personal liability under § 1983 must be based on a defendant's personal involvement in a constitutional violation. Conner v. Reinhard, 847 F.2d at 396; Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). The constitutional violation allegedly at issue in count III was Watt's discharge in retaliation for speaking his mind. The court has already held that Watt has not shown any evidence suggesting that the Commission was motivated by retaliatory animus in terminating him. Thus, the Commission did not deprive Watt of any constitutional rights, i.e., there was no retaliatory termination to create a basis for Dahlberg's "setting in motion" liability. Watt implicitly acknowledges this as he only briefly argues that Dahlberg should be liable for his termination, and spends many pages and much ...

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