The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiff Loretta Capeheart is a tenured professor at Northeastern Illinois University, and is faculty advisor to a group of student activists. After she spoke out against the arrest of some of the activists who protested campus recruiting by the CIA, she contends that she was denied a promotion and that a university vice-president intimated that she is a stalker. She sued under both federal and state law for damages, and seeks an injunction to stop additional alleged violations of her rights to free speech. The defendants have filed a motion to dismiss. See Fed. R. Civ. P. 12(b)(1), (b)(6). For the following reasons, the motion is granted.
The following facts are drawn from Capeheart's complaint and are accepted as true for purposes of resolving the motion to dismiss. See Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Capeheart has been employed by Northeastern since September 2002 and was awarded tenure in April 2006. She is the faculty advisor to a student club that distributes leaflets opposing efforts by the military and the CIA to recruit students at campus job fairs. In late February 2007, campus police arrested two members of this student club for attempting to attend a recruitment meeting that the university hosted and at which the CIA appeared. Capeheart did not attend the event, and the protest was not an activity organized by the student club.
On March 17, 2007, Capeheart attended a regularly-scheduled meeting of the Northeastern Faculty Council for Student Affairs. Capeheart had been upset about the arrest of students at the CIA event, and used the occasion of the council meeting to speak out. Capeheart directed some of her comments to student affairs vice-president Melvin Terrell, who oversaw campus police. Capeheart complained that the arrests by campus police were part of a pattern of harassment by the Northeastern administration against students who peacefully protested the Iraq war.
In response to Capeheart's comments, Terrell told those in attendance that the campus police were not to blame for the incident, but rather that Capeheart and the students she advised were solely responsible for the altercation. Terrell also accused Capeheart of being the target of a police investigation based upon a student's allegations that Capeheart was stalking the student. At the meeting, other administrators joined Terrell in blaming Capeheart for the actions of the arrested students despite her assertion that she was not involved.
In mid-July 2007, members of the Justice Studies Department faculty elected Capeheart to be their department chairperson. But the university Provost disregarded the faculty vote and refused to appoint Capeheart as the department chair, allegedly in retaliation for exercising her right to free speech by speaking up at the faculty council meeting. The chair position has been placed in receivership and Northeastern has instituted a search for an outside chair. Against the Justice Studies faculty's recommendations, the administration has refused to appoint Capeheart as the leader of the search committee or as department coordinator. Additionally, Capeheart alleges that even though she was eligible for a faculty excellence award in 2007, Northeastern refused to honor her in retaliation for her exercise of her free speech rights.
In response to the failure to seat her as department chair, Capeheart filed the instant suit against Northeastern and Terrell. In her complaint, she alleges a single federal claim, Count I, in which she seeks to enjoin Northeastern from continuing to violate her First Amendment rights to free speech, from retaliating against her for exercising those rights, and from refusing to appoint her chairperson of the Justice Studies Department. The remainder of her complaint alleges state law claims. Specifically, in Counts II and III, she alleges that Melvin Terrell defamed her. In Count IV, she alleges a claim under the Illinois constitution that Northeastern and Terrell retaliated against her for exercising her right to free speech.
Before the court is a motion to dismiss filed by both the University and Terrell. In the motion, Northeastern argues that all of the claims against it must be dismissed because, under the Eleventh Amendment, state agencies may not be sued in federal court. Alternatively, Northeastern argues that Count I, in which Capeheart seeks an injunction to prevent further violations of her First Amendment rights as well as an order that she be seated as department chair, must be dismissed because Capeheart has failed to allege an "immediate danger" of injury or a "clear right" to the position of department chair. For his part, Terrell argues that the defamation claims in Counts II and III must be dismissed because the statements at issue were made within the course of his official duties and he is therefore entitled to absolute immunity. Finally, Terrell argues that the retaliation claim against him in Count IV under the Illinois constitution must be dismissed because, according to complaint, the decision not to seat her as department chair was made by others, not him.
The defendants have moved for dismissal under both Federal Rule of Civil Procedure 12(b)(1) based upon lack of subject-matter jurisdiction under the Eleventh Amendment, as well as Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
On a motion to dismiss under Rule 12(b)(6), the court accepts the allegations in the complaint or counterclaim as true, viewing all facts, as well as any inferences reasonably drawn therefrom, in the light most favorable to the plaintiff. See Marshall-Mosby, 205 F.3d at 326. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic, 127 S.Ct. at 1964-65 (2007) (citations omitted).
The Seventh Circuit has interpreted Bell Atlantic as follows: Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. To state such a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has interpreted that language to impose two easy-to-clear hurdles. First, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, --- U.S. ----, ----, 127 S.Ct. 1955, 1964, 167 L.Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957)) (alteration in Bell Atlantic). Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a "speculative level"; if they do not, the plaintiff pleads itself out of court. Bell Atlantic, 127 S.Ct. at 1965, 1973 n.14.
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). See also Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618-19 (7th Cir. 2007) (observing that under Bell Atlantic a complaint must now contain "enough ...