The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Former Cook County Sheriff Michael Sheahan ("Sheahan"), present Sheriff Thomas Dart ("Dart"), James Ryan ("Ryan") and Citizens for Michael F. Sheahan Campaign Fund ("Citizens for Sheahan") move separately (although adopting some of each others' submissions by reference), both under Fed. R. Civ. P. ("Rule") 12(b)(1) and under Rule 12(b)(6), to dismiss allegations brought against them and Cook County by Thomas Brown ("Brown") in his First Amended Class Action Complaint ("FAC"). This action, relating to alleged extortionate activity in the Cook County Sheriff's Office ("Sheriff's Office"), is brought against Sheahan in his individual and official capacity,*fn1 Dart (who was the Chief of Staff under Sheahan) in his individual and official capacity, Ryan (the former Director of Operations in the Sheriff's Office) in his individual capacity only, Citizens for Sheahan (a political campaign committee established on behalf of Sheahan), Cook County and other unknown persons in the Sheriff's Office and Citizens for Sheahan (FAC ¶¶6-11). Cook County's Rule 12(b)(6) motion to dismiss was previously granted on grounds not relevant to the other parties, but Cook County remains in the case for indemnification purposes. Brown pleads a class action on behalf of all employees of the Sheriff's Office who assertedly suffered negative consequences because they failed to support Sheahan's Political Enterprise (FAC ¶71).
At issue are Brown's allegations that defendants violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") and are thus liable for monetary damages and subject to declaratory and injunctive relief (FAC ¶2). Brown also invokes 42 U.S.C. §1983 ("Section 1983") to redress the asserted violation of his First Amendment rights by all defendants other than Dart and Citizens for Sheahan (FAC ¶2), but that contention is not the target of the current motions to dismiss. Because the appropriateness of class certification was addressed in the parties' memoranda, this opinion will also resolve that issue at this stage.
Motion To Dismiss Standards
In considering the sufficiency of a complaint under either Rule 12(b)(1) or Rule 12(b)(6), a court must accept all of the complaint's well-pleaded factual allegations as true and draw all reasonable inferences in plaintiff's favor (see, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003) as to Rule 12(b)(1) and McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006) as to Rule 12(b)(6)). While a Rule 12(b)(1) inquiry tests the sufficiency of the allegations to establish subject matter jurisdiction, a Rule 12(b)(6) review measures whether the complaint states a claim for which relief can be granted. To survive Rule 12(b)(6) scrutiny, the complaint must (1) put the defendants on "fair notice of what the...claim is and the grounds upon which it rests" (Rule 8(a)) and (2) plausibly suggest that plaintiff has a right to relief (EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007), citing and quoting Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964-65, 1973 n.14 (2007)).
Brown began his tenure at the Sheriff's Office as a police officer in April 1977 (FAC ¶5). After 28 years' service, he retired at the rank of sergeant (a position he had attained in early 1990) at the end of 2005 (FAC ¶5). During the 1998 election for Cook County Sheriff, Brown openly supported then Sheriff Sheahan's Republican opponent through monetary donations and the erection of campaign signs (FAC ¶¶12, 15). Brown continued to support candidates who were "not part of the Democratic machine" from that time forward (FAC ¶20). Although he knew that he was "expected" to make monetary donations to Sheahan and Citizens for Sheahan as part of his employment, Brown did not (FAC ¶21).
After Sheahan's re-election as Cook County Sheriff, Brown was unhappy with his treatment within the Sheriff's Office. For one thing, in April 1999 he was involuntarily reassigned to a position in Ford Heights, Illinois despite his seniority and in violation of the procedures in the Sheriff Office's Collective Bargaining Agreement (details of the position were not posted, and employees were not given the opportunity to bid on the position before it was assigned based on seniority) (FAC ¶16). And for another, Brown requested a replacement squad car in 1999 because his five-year-old vehicle was functioning poorly, and although his peers received new squad cars on a regular basis his request was not filled until 2000, when he was given a squad car in similarly poor condition. It was not until 2003 that he received a squad car in good condition (FAC ¶¶17-18).
Brown passed the Police Lieutenant's Promotion Examination and was placed on the list of qualified candidates for promotion to the rank of lieutenant in October 2003, but he did not receive a promotion during the two years that the list remained effective (FAC ¶¶23-27). After publication of the promotion list Brown was told by a higher ranking officer that to get the promotion he needed to "call in his clout" and "make the calls" (FAC ¶32). Five other candidates, deemed objectively less qualified by Brown, were promoted during those two years--and four of the five had donated money to Citizens for Sheahan or to the Cook County Democratic Society (FAC ¶¶27-28). One of the promotions occurred even though the pay grade did not officially exist (FAC ¶29). Earlier promotions had also been given to sergeants and other Sheriff's Office employees who donated to Citizens for Sheahan (FAC ¶¶30-31).
Sheahan, Dart, Ryan and Citizens for Sheahan move to dismiss Counts II through V of Brown's FAC.*fn3 All those counts look to 18 U.S.C. §1962(c)*fn4
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
Count II charges the violation of Section 1962(d) by conspiring to violate Section 1962(c), Count III charges the violation of Section 2 by aiding and abetting a violation of Section 1962(c), Count IV charges the violation of Section 1962(c) itself and Count V seeks declaratory and injunctive relief enjoining defendants from continuing those same violations in the future (FAC ¶¶98-117). Recovery is ...