The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Plaintiffs Gary Kohlman and Allen Roberts are members of the Hells Angels Motorcycle Club.*fn1 They contend that the Mayor of Midlothian (defendant Thomas Murawski), Midlothian's Police Chief (defendant Vince Schavone), and a Midlothian police officer (defendant Hal Kaufman) ordered restaurants and bars in Midlothian to refuse to serve the plaintiffs because of their membership in the Hells Angels Motorcycle Club and/or their wearing of Hells Angels insignia and logos. In the plaintiffs' complaint, filed pursuant to 42 U.S.C. § 1983, the plaintiffs assert that the denial of service violates the First and Fourteenth Amendments.*fn2 The defendants' motion to dismiss is before the court. For the following reasons, the motion is granted, but the plaintiffs are given leave to replead.
The following facts are drawn from the plaintiffs' complaint and are accepted as true for the purpose of the motion to dismiss.*fn3 On June 5, 2008, and other occasions, defendants Thomas Murawski (Midlothian's Mayor), Vince Schavone (Midlothian's Chief of Police), and Hal Kaufman (a Midlothian police officer) met with representatives from Midlothian restaurants and bars. During these meetings, the defendants ordered the restaurants and bars to refuse service to anyone who was a member of the Hells Angels Motorcycle Club and/or was wearing clothing with Hells Angels' insignia or logos.
Plaintiffs Gary Kohlman and Allen Roberts, who are members of the Hells Angels Motorcycle Club, were subsequently refused service by numerous bars and restaurants in Midlothian because of their affiliation with the Hells Angels. Contending that the defendants' order to the bars and restaurants violated the First and Fourteenth Amendments, they filed suit against the Village of Midlothian, Murawski, Schavone, and Kaufman pursuant to 42 U.S.C. § 1983.
A. Standard of Review for a Rule 12(b)(6) Motion to Dismiss
A plaintiff's complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief" and "fair notice" of the plaintiff's claims and the basis for those claims. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). According to the Seventh Circuit, this language imposes two 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." E.E.O.C. v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. Second, the factual 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." Id.
However, "[a] complaint need not allege all, or any, of the facts logically entailed by the claim, and it certainly need not include evidence." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Instead, a complaint contains enough details if it includes allegations that show that "it is plausible, rather than merely speculative, that he is entitled to relief." Id. at 1083 (internal quotations and citations omitted).
Meanwhile, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. See Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992). The court must also assume the truth of all well-pleaded fact, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992).
Section 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution or laws of the United States." 42 U.S.C. § 1983; Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). Thus, the plaintiffs' complaint can survive the motion to dismiss only if it: (1) alleges that the defendants acted under color of state law; and (2) states a colorable constitutional claim. For the following reasons, the court finds that the complaint alleges state action but fails to state a colorable Equal Protection or First Amendment claim.
The defendants contend that the plaintiffs' § 1983 claims fail as a matter of law based on lack of state action. Specifically, according to the defendants, the bars and restaurants in Midlothian are private entities, and as such, are free to serve any customers they choose. It is true that private parties' conduct generally is outside the scope of the Constitution. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 114 (1973). The plaintiffs' complaint, however, clearly alleges that the defendants specifically ordered the bars and restaurants in Midlothian to decline to serve the plaintiffs. The court must, therefore, consider whether private entities following the directions of state actors act under color of state law. See Wade v. Byles, 83 F.3d 902, 904 (7th ...