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Parisi v. Village of Deerfield

July 9, 2008

ANTHONY PARISI, PLAINTIFF,
v.
VILLAGE OF DEERFIELD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff Anthony Parisi is a police officer employed by the Village of Deerfield. He began working there in 1994. Plaintiff alleges that in August, 2006, the Chief of Police, Defendant John Sliozis, gave him written orders that (1) assigned Plaintiff to administrative leave with pay; (2) suspended Plaintiff's police powers; (3) forbade Plaintiff to enter the premises of the Deerfield Police Department; (4) ordered Plaintiff to report to Defendant Eric Ostrov (a psychologist) for a fitness of duty examination; and (5) instructed Plaintiff to cooperate with Dr. Ostrov in completing the examination. Plaintiff further alleges that he was given no reasons for these actions, even after requesting reasons.

Plaintiff did, in fact, meet with Dr. Ostrov on August 18, 2006. Plaintiff asserts that Dr. Ostrov refused to provide him with a copy of his report. Plaintiff goes on to allege that on October 13, 2006, he met with Defendant Sliozis, who informed him that he had been found to be unfit for duty. He further alleges that Defendant Sliozis presented him with three choices: (1) termination; (2) resignation; (3) or counseling. After Mr. Parisi agreed to seek counseling, he alleges that Chief Sliozis informed him that he was being placed on administrative leave without pay until he completed counseling and was found to be fit for duty. Plaintiff alleges that his request for a copy of Dr. Ostrov's report was again denied.

In order to comply with his agreement to seek counseling, Plaintiff consulted a psychologist named Mark Goldstein. Plaintiff alleges that despite repeated requests, none of the Defendants provided Dr. Goldstein with a copy of Dr. Ostrov's report for approximately two months. Plaintiff asserts that Dr. Goldstein, and then another psychologist, Kenneth Kessler, found Plaintiff to be fit for duty. After a second evaluation by Dr. Ostrov, Mr. Parisi was returned to active duty on January 23, 3007.

Plaintiff filed a two-count complaint. Count II alleges a violation of due process. Count II alleges a violation of the Illinois Municipal Code. Defendants have filed two separate motions to dismiss Plaintiff's complaint. The Village, Sliozis and Franz filed one motion, arguing that Plaintiff has adequate state law remedies. Defendant Ostrov filed a separate motion, arguing that Plaintiff has failed to state a cause of action for civil conspiracy.

II. DISCUSSION

A. Motion to Dismiss Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I must accept all well-pleaded factual allegations in the complaint as true, drawing all reasonable inferences from those facts in Plaintiff's favor. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). I may grant the motion only if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). That said, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and quotations omitted). As the Seventh Circuit noted, "it is not enough for a complaint to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief." EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 777 (7th Cir. 2007) (emphasis in original). While the Supreme Court's recent decision in Bell Atlantic may not have changed the federal pleading standard to a fact-pleading regime, "at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled." Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 668 (7th Cir. 2007).

B. The Village, Sliozis, and Franz's Motion to Dismiss

To state a procedural due-process claim, a plaintiff must allege (1) deprivation of a protected interest, and (2) insufficient procedural protections surrounding that deprivation. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). The relevant constitutional question, however, is "whether sufficient state-law protections exist, not whether sufficient protections were afforded." Michalowicz v. Village of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). Therefore, "[a] complaint does not state a valid procedural due process objection . . . if it does not include a challenge to the fundamental fairness of the state procedures." Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Daniels v. Williams, 474 U.S. 327, 339 (1986) (Stevens, J., concurring)). Defendants do not dispute the fact that Mr. Parisi's employment with the Village was a protected interest. The issue here, therefore, concerns the procedural protections he was due.

Plaintiff acknowledges, by including the second count of his complaint, that there are state law remedies available to him. Specifically, Plaintiff argues that "Defendants' decision to remove Plaintiff from his position as a police officer by placing him on involuntary medical leave was without cause and in violation of the specific requirements of the Illinois Municipal Code." Plaintiff's Complaint, ¶ 35.

The due-process claim Plaintiff raises here is a challenge to the "random and unauthorized" actions of the state officials in question, i.e., to their unforeseeable misconduct in failing to follow the requirements of existing law. See Strasburger v. Bd. of Educ., Hardin County Cmty. Unit Sch. Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998) (citing Parratt v. Taylor, 451 U.S. 527, 540 (1981)); see also Easter House v. Felder, 910 F.2d 1387, 1396-98 (7th Cir. 1990) (en banc). Because such misconduct is inherently unpredictable, the state's obligation under the Due Process Clause is to provide sufficient remedies after its occurrence, rather than to prevent it from happening. See Doherty v. City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996) ("Where state law remedies [to random and unauthorized conduct] exist, a plaintiff must either avail herself of the remedies guaranteed by state law or demonstrate that the available remedies are inadequate."). Accordingly, Parisi's claim can stand only if he establishes that Illinois law provides insufficient remedies for the violation he alleges.

Judge Darrah faced a similar set of circumstances in Anderson v. Bd. Of Educ. Of the City of Chicago, 2004 WL 1157824, No. 03 C 7871 (N.D. Ill. May 21, 2004). In Anderson, two tenured teachers brought a § 1983 action, alleging that board of education and its officials violated their due process rights by placing them on unpaid medical leave without a pre-deprivation hearing. 2004 WL 1157824, at *1. Judge Darrah dismissed the plaintiff's § 1983 claims because there were suitable post-deprivation remedies. Id. at 4. Specifically, the court pointed to the availability of a writ of certiorari or mandamus. Id. Judge Darrah concluded that because of the existence of those remedies, the plaintiff was unable to state § 1983 for a violation of due process. Id. (citing Veterans Legal Def. Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir.2003) and Easter House, 910 F.2d at ...


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