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Clark v. Butler

March 24, 2010

KEVIN CLARK AND ROBERT "BO" EMERY, PLAINTIFFS,
v.
ROBERT L. BUTLER, STEPHEN R. GREEN AND GAIL WEST, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

I. Introduction and Factual Background

Presently before the Court are two motions to dismiss (Docs. 10, 26). Defendants Robert Butler and Gail West filed the first Motion; the second Motion was filed by the remaining Defendant, Stephen Green.*fn1 The Court will rule on both of these Motions in the present Order because, although the arguments differ, they rest on the same factual basis, set forth in Plaintiffs' one-count complaint. Plaintiffs oppose the motions, arguing that their claims are timely and adequately plead under 42 U.S.C. § 1983. The Court, upon careful consideration of the facts and arguments presented by the parties, HEREBY DENIES Defendants' motions to dismiss.

Plaintiffs identify themselves as "long standing critics of the politics and policies of Mayor Butler" (Doc. 2). They claim that they have "publically spoken out many times regarding what they perceived as improper conduct on the part of Mayor Butler and his administration." Id.

Plaintiffs filed this action asserting that, in response to their speaking out against Mayor Butler and his administration, Defendants have collectively retaliated against them in violation of their First Amendment rights by (1) causing myspace.com to remove the website they had created; (2) notifying them that they were no longer allowed at City Hall or any other property owned by the City and that they were to have no communication with City employees; and (3) notifying them that any requests made under the Illinois Freedom of Information Act had to be made directly to Green and paid for at a copying rate four times the normal charge. Plaintiffs contend that they were thereby subjected to loss of liberties and that they suffered emotional anguish and distress, humiliation, inconvenience, damage to reputation, lost business opportunities and loss of the enjoyment of life.

II. Applicable Legal Standards

Defendants filed these motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn2 A 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811 (7th Cir. 2009). Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).

In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 128 S.Ct. 357 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006).

In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), the Seventh Circuit emphasized that even though Bell Atlantic"retooled federal pleading standards" and "retired the oft-quoted Conley formulation," notice pleading is still all that is required.

"A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id. Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008)("surviving a Rule 12(b)(6) motion requires more than labels and conclusions"; the allegations "must be enough to raise a right to relief above the speculative level").

III. Analysis

Plaintiffs assert a claim arising under 42 U.S.C. § 1983 for alleged violations of their rights under the First Amendment. Specifically, they claim that Mayor Butler, City Attorney Green and City Administrator West retaliated against them because they were persistent critics of Mayor Butler and his administration.

The First Amendment provides that "Congress shall make no law... abridging the freedom of speech." U.S. Const. Amend. I. The First Amendment protects not only the affirmative right to speak, but also the 'right to be free from retaliation by a public official for the exercise of that right.'" Bondar v. D'Amato 2007 WL 1700114, *7 (E.D.Wis. 2007), quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000), citing ACLU v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir.1993) ("Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights."); and Pickering v. Board of Educ., 391 U.S. 563, 574 (1968) (noting that retaliatory acts are "a potent means of inhibiting speech"). Denying a governmental benefit on a basis that infringes on freedom of speech in effect penalizes and inhibits the exercise of that freedom, and "such interference with constitutional rights is impermissible." Perry v. Sindermann, 408 U.S. 593, 597 (1972), citingSpeiser v. Randall, 357 U.S. 513, 526 (1958). A claim that governmental actors retaliated against plaintiffs for exercising their First Amendment right to freedom of speech is actionable under § 1983. Libbra v. City of Litchfield, Ill. 893 F.Supp. 1370, 1376 (C.D.Ill. 1995), citing Smart v. Board of Trustees of Univ. of Illinois, 34 F.3d 432, 434 (7th Cir.1994) ("Any form of official retaliation for exercising one's freedom of speech is actionable as an infringement of that freedom."); Rakovich v. Wade, 850 F.2d 1180, 1211 (7th Cir. 1988).

"However, not every action made in response to an individual's exercise of his First Amendment right to free speech is actionable retaliation." Suarez, 202 F.3d at 685, citing DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995). "To prevail on a First Amendment retaliation claim, [a plaintiff] must ultimately show that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was 'at least a motivating factor' in the Defendants' decision to take the retaliatory action." Bridges v. ...


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