MEMORANDUM OPINION AND ORDER
Plaintiff Talmitch L. Jackson has filed a four-count complaint against defendant the City of Chicago ("the City") alleging discrimination in violation of the Americans with Disability Act ("ADA") (Count I); retaliation in violation of the ADA (Count II); retaliation in violation of First Amendment (Count III); and retaliation under the Equal Protection clause (Count IV). Defendant has brought a motion to dismiss counts I, III and IV of the complaint for failure to state a claim under FED. R. CIV. P. 12(b)(6). For the following reasons, the motion to dismiss is granted in part and denied in part.
As alleged in the complaint, plaintiff sustained multiple gunshot wounds during the course of his employment as a police officer for the City in 1994. These wounds forced him to go on long-term disability status and, in 1996, to undergo extensive abdominal surgery. Plaintiff also suffered a stroke during his surgery. To date, plaintiff continues to be on long-term disability.
In March 2003, plaintiff became a named plaintiff in a class action lawsuit against the Fraternal Order of Police ("FOP") and various other defendants regarding the alleged misuse, mishandling, and inappropriate disbursement of millions of dollars of donations collected from the public on behalf of plaintiff and other Chicago Police Officers in 1998. The FOP is the sole and exclusive collective bargaining representative for all sworn Chicago Police Officers. Since then, the City is alleged to have denied plaintiff's requests for medical treatment, refused to approve requests for necessary medical treatment and medication, and refused to pay his medical bills. The complaint alleges these requests were identical to previously submitted requests, predating the class action lawsuit, which had been routinely granted.
In assessing defendant's motion to dismiss under FED. R. CIV. P. 12(b)(6), I must accept all well-pleaded facts in the complaint as true. Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005). I must view the allegations in the light most favorable to plaintiff. Id. However, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. - -, 127 S.Ct. 1955, 1965 (May 21, 2007).
A. Count I: Discrimination under the ADA
Defendant moves to dismiss plaintiff's ADA discrimination claim on the grounds that plaintiff is no longer employed by the City and that he is not qualified under the ADA. "To make out a [discrimination] claim under the ADA, an individual must show: 1) that [he] is disabled; 2) that [he] is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) that the employer took an adverse job action against [him] because of [his] disability or failed to make a reasonable accommodation." Stevens v. Illinois Dep't Of Transp., 210 F.3d 732, 736 (7th Cir. 2000).
At the outset, I must reject defendant's first argument concerning plaintiff's employment status for the complaint specifically alleges that plaintiff is employed by the City and I must take this as true. Furthermore, defendant appears to have abandoned this argument in its reply brief.
Defendant's second argument is that the complaint fails to allege plaintiff is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation. I agree. The complaint describes plaintiff's long-term disability status beginning in 1994, as a result of the gunshot wounds, and continuing until the present day. Since 1994, plaintiff has also suffered a stroke. In light of these allegations and the complaint's silence concerning plaintiff's ability to perform any essential functions of the job, I cannot conclude that plaintiff has sufficiently alleged a claim under the ADA. See Bell Atl., 127 S.Ct. at 1968 (a complaint must do more that "[leave] open the possibility that a plaintiff might later establish some 'set of undisclosed facts' to support recovery") (alteration marks omitted).
Plaintiff's attempt to salvage this claim by relying on paragraph 33 of the complaint fails. Paragraph 33 provides that "[t]he denial of necessary medical treatment and medication has caused and continues to cause harm to [p]laintiff's physical health and safety and has a substantial and irreparable affect on his mental and emotional health." (Compl. at ¶ 33.) Once again, this allegation is silent as to plaintiff's qualified status. While this allegation provides that plaintiff has been denied medical treatment and medication, and suffered a harm as a result, it does not provide that with treatment or medication plaintiff would be qualified to perform the essential functions of the job. Accordingly, count I is dismissed.
B. Count III: Retaliation under the First Amendment
Defendant next argues the complaint has failed to state a claim for retaliation under the First Amendment because the plaintiff's speech was not a matter of public concern. In order to state a § 1983 claim for retaliation in violation of the First ...