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Capeheart v. Northeastern Illinois University

March 9, 2010


The opinion of the court was delivered by: Blanche M. Manning United States District Judge

Judge Blanche M. Manning


Plaintiff Loretta Capeheart contends that she was subjected to public contempt and a damaged reputation for her role in student protests at Northeastern Illinois University, where she is a professor in the Department of Justice Studies. Among those she has sued is Melvin Terrell, a university vice-president who oversaw student affairs and campus police. Capeheart alleges that during a meeting of the Faculty Council, Terrell falsely stated that Capeheart had been charged with stalking a male student. Capeheart alleges that the statement was defamatory per se (Count II) and per quod (Count III). She also alleges that Terrell's statement was made in retaliation for exercising her right to free speech under the Illinois constitution (Count IV), and contributed to the decision of his co-defendants, university president Sharon Hahs and provost Lawrence Frank, to reject her election as chair of her department, deny her a faculty excellence award, and withhold an appointment as department coordinator.

Terrell has moved to dismiss all of the claims against him. See Fed. R. Civ. P. 12(b)(6). For the following reasons, the motion is denied.


The following facts are drawn from Capeheart's Second Amended 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 is a tenured professor and 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 then-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.

In mid-July 2002, members of the Justice Studies Department faculty elected Capeheart to be their department chairperson. However, the university administration, allegedly aided by Terrell, did not appoint Capeheart as chair of the department. Instead, the chair position was placed in receivership and Northeastern instituted a search for an outside chair. Against the Justice Studies faculty's recommendations, the administration refused to appoint Capeheart as the leader of the search committee or as department coordinator. Additionally, Capeheart alleges that although she was eligible for a faculty excellence award in 2007, the administration refused to honor her in retaliation for her exercise of her right to free speech.

In his motion to dismiss, 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, therefore, he is entitled to absolute immunity. As for the retaliation claim in Count IV, Terrell argues that the claim must be dismissed because (1) he was not personally involved in the decision not to seat Capeheart as department chair and, in any event, (2) conduct that consists solely of speech is retaliatory only if the speech is threatening or coercive and, Terrell contends, his alleged statements about Capeheart were neither.


Terrell has moved for dismissal under 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 ...

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