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Villagrana v. Village of Oswego

September 22, 2005


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiff, Jose A. Villagrana ("Villagrana"), has filed a four-count Second Amended Complaint against defendants, Village of Oswego, Illinois, including its Board of Fire and Police Commissioners and its Police Department (together, the "Village"), Village of Oswego police officers in their individual capacities (together, "Village police officers), and several others. This Memorandum Opinion and Order addresses only Counts III and IV. Count III is directed at Village police officer Nick Sikora ("Sikora"), while Count IV is directed at the Village and Village police officers Chad Dickey ("Dickey"), Scott Hart ("Hart"), and Mary Zimmerman ("Zimmerman"). This court has jurisdiction over the claims pursuant to 28 U.S.C. §§ 1331, 1343 and 1367(a). The Village and Village Police Officers Dickey, Hart, Shockley, Sikora and Zimmerman move to dismiss Counts III and IV pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Defendants' Motion to Dismiss is granted in part and denied in part.


A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). Nevertheless, the court is not required to "ignore any facts set forth in the complaint that undermine the plaintiff's claim [nor does it] assign any weight to unsupported conclusions of law." LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 690 (7th Cir. 1998) (internal citations and quotations omitted).


According to the Second Amended Complaint, taken as true for the purpose of this motion, Villagrana is a Mexican-American male residing in the Village of Oswego, Illinois and employed as a police officer by the Kendall County Sheriff's Office ("KCSO").

In April 2003, Villagrana's neighbor, Mr. Smith ("Smith"), contacted Villagrana to complain about the treatment he received from Village police officer Sikora during Sikora's investigation of a "damage incident" at Smith's home. Specifically, Smith, an African-American, complained that Sikora repeatedly threatened him with arrest and refused to issue a police report in connection with the "damage incident." Villagrana, like Smith, believed that Sikora's actions were motivated by racial animosity.

Villagrana decided to intervene on Smith's behalf and confronted Sikora with Smith's allegations. Villagrana told Sikora that he believed Sikora's conduct was racially motivated and advised that, in his opinion, "it would be good community policing to provide Mr. Smith with a police report." Sikora took umbrage with Villagrana's accusations and emphatically denied that his actions were in anyway racially motivated.

Shortly thereafter, it was Sikora's turn to complain about Villagrana's conduct. Sikora contacted Villagrana's employer, the KCSO, to report the accusations leveled by Villagrana against Sikora and the Village police department. The following month, in May 2003, an officer from the Village police department again contacted the KCSO to complain about Villagrana. This time the Village police officer accused Villagrana of "improper use of a police radio and broadcast of insulting messages over the police radio."

Then, in January 2004, Village police officers responded to a "domestic situation" at Villagrana's home involving Villagrana and his wife and son. During the investigation, Village police officers Hart and Dickey told an unidentified third party that Villagrana "beat" his son. Officer Hart then repeated this allegation in his report of the incident, which was sent to the Kendall County Sheriff's Office and "others" by Officer Zimmerman. Villagrana disputes that he "beat" his son.


Defendants move to dismiss Counts III and IV of the Second Amended Complaint on multiple grounds. Defendants move to dismiss Count III, which alleges retaliation, because (1) Villagrana was not engaged in constitutionally protected speech when he spoke to Sikora (Certain Def's Mot. to Dismiss at 4-5.); (2) Sikora was exercising his own First Amendment rights in his conversation with the Kendall County Sheriff's Office and therefore cannot be considered to have adversely affected Villagrana's First Amendment rights (Id. at 5; Certain Def's Reply at 2-3.); (3) Sikora is qualifiedly immune from suit. (Certain Defs.' Mot. to Dismiss at 5-7.) Defendants move to dismiss Count IV, which alleges defamation, on the grounds that the Village is absolutely immune from suit because it is a governmental entity and its police officers are similarly afforded absolute immunity since they were acting within the scope of their employment. Finally, defendants move to dismiss Counts III and IV as to Sergeant Shockley because Villagrana fails to allege that he engaged in any wrongful conduct.

I. Count III: Retaliation in Violation of § 1983

Villagrana alleges that the Village and the Village police officers deprived him of his First Amendment rights in violation of 42 U.S.C. ยง 1983 when they made certain false and disparaging statements to his employer in ...

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