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Covell v. Menkis

July 17, 2006

GERALD COVELL, PLAINTIFF,
v.
HARMON P. MENKIS, TODD HLAVECK, RALPH SESCO, DARRELL WASHINGTON, JAMIE GALLO-WEINSTEIN, LEON DEVRIENDT, RON SIPEK, LORI MCKEZIE, JENNY SINGLETON, AND AMY BLOUGH, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

This case is before the Court on Defendants' partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and their partial motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

I. Background

This is a procedural due process action brought pursuant to 42 U.S.C. § 1983. Plaintiff Gerald Covell has asserted a takings claim of his property without due process as afforded by the Fourteenth Amendment of the United States Constitution (Counts I, III, V, VII, IX, XIII, XV, XVII, and XIX of the complaint). In his second claim, Covell alleges a taking of liberty interests without due process (Counts II, IV, VI, VIII, X, XII, XIV, XVI, XVIII, and XX of the complaint). Covell served as the Director of the Illinois Deaf and Hard of Hearing Commission ("Commission") from November 1998 through August 2003. On August 8, 2003, Covell was allegedly laid off from his position without a pre-termination or post-termination hearing. Covell alleges that all Defendants were members of the Commission at the time the Commission voted to terminate Covell from his position as Director.

Covell states that under regulations adopted by the Commission, the Director may be removed with a two-thirds majority vote. Additionally, Covell alleges the Director is entitled to the same rights and privileges outlined in the Personnel Code, 20 ILCS 415, et al. (the "Code"). Due to these rights and privileges, Covell claims he could not have been terminated without good cause and that he possessed a property interest in his position of Director of the Commission.

Covell claims on August 4, 2003, two of the Defendants informed him at his home that he was immediately suspended from his employment with the Commission. Covell claims he was told at this time that he was being investigated for malfeasance and dereliction, he needed to surrender all state owned property, and he was to have no contact with any members of the Commission.

Covell asserts that on August 8, 2003, the Defendants voted unanimously to terminate him. After the vote, Covell was given notice of his termination. Three days later, Covell claims the Chairperson of the Commission issued a statement to the staff and public that Covell had been terminated. Because Covell allegedly still did not know why he was terminated, on August 21, 2003, he attempted to contact Defendant P. Harmon Menkins, the Chairperson of the Commission, to find out specifically why he was terminated. A day later, Covell claims Menkins told him there would be no explanation given concerning the reasons for his termination.

Later, through conversations with others, Covell claims he learned he was terminated for the falsification of public records, including time records, and for viewing pornographic materials using state resources. Covell claims that he was not given an opportunity to rebut the allegations brought against him, whether in the form of a pre-termination hearing or a post-termination hearing.

Covell also served, by appointment of the Governor, as a member of the Statewide Independent Living Council. After the termination vote took place, Covell claims one or more of the Defendants informed the Governor of their decision. As a result of that information, Covell alleges that the Governor terminated his appointment.

Covell brings this suit against the Defendants in their official and individual capacities for purposes of equitable and legal relief. In his complaint he seeks damages, a mandatory injunction against the Defendants to refrain from any action with Covell prohibited by 42 U.S.C. §§ 1983 and 1988, and reinstatement to his position as the Director of the Commission. The Defendants filed these motions claiming this Court lacks subject matter jurisdiction, and that Covell can claim no set of facts which would entitle him to relief.

II. Analysis

A. Standard of Review

Motions pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure seek dismissal of claims based on a lack of subject matter jurisdiction. Jurisdiction is the "power to decide" and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The plaintiff has the burden of proving the jurisdictional requirements have been satisfied. Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987). However, a district court may look beyond the complaint and consider any other evidence submitted by the parties to decide whether it has subject matter jurisdiction. See United Transp. Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). As such, the plaintiff has the burden of proving jurisdictional requirements have been fulfilled, even when the defendant challenges jurisdiction. Thompson v. Gaskill, 315 U.S. 422, 446 (1942).

Motions under Rule 12(c) of the Federal Rules of Civil Procedure seek dismissal of claims based on the pleadings. Rule 12(c) may be used in two ways. First, Rule 12(c) may be used after the close of the pleadings to raise Rule 12(b) defenses in regard to procedural defects, in which case the court uses the same standard as a 12(b) motion. Alexander v. City of Chicago, 994 F.2d 333, 336 (7th Cir.1993); Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989). All well-pleaded allegations are presumed to be true, and all inferences are drawn in favor of the non-moving party. Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir.1996). In such a case, a court will dismiss the claims if there appears beyond a reasonable doubt to be no set of facts which the plaintiff could prove to be entitled to relief. Id. at 1429-30. Second, Rule 12(c) may be used to dispose of the case based on the underlying substantive merits. Alexander, 994 F.2d at 336. For this use, "the appropriate standard is that applicable to summary judgment, except that the court may ...


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