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American Civil Liberties Union of Illinois v. City of Chicago

August 13, 2010

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

In 1974 and 1975, the American Civil Liberties Union ("ACLU") and other public interest groups brought two class actions arising from the City of Chicago (the "City") Police Department intelligence division's covert investigation of plaintiffs' purportedly subversive activities, which investigations, plaintiffs maintained, violated their First Amendment rights. The two cases, which were consolidated, resulted in the 1982 entry of a consent decree restricting the investigative techniques employed by the City, and granting the court jurisdiction to enforce compliance with the decree. See Alliance to End Repression v. City of Chicago (Alliance 1982), 561 F. Supp. 537 (N.D. Ill. 1982). Nearly twenty years later, after an appeal to the Seventh Circuit, see Alliance to End Repression v. City of Chicago (Alliance 2001), 237 F.3d 799 (7th Cir. 2001), this court entered a Modified Consent Decree ("MCD")*fn1 to replace the original consent decree. The MCD enjoined the City from, inter alia, retaliating against any person on the basis of conduct protected by the First Amendment. (MCD 3.) In June 2009, this court entered an order dissolving the MCD, but retaining jurisdiction "over all pending petitions to enforce" the MCD. (Doc. 253.)

On July 31, 2009, the court issued an opinion (the "Opinion") on several such pending petitions brought by non-parties to the MCD. See ACLU v. City of Chicago, No. 75 C 3295, 2009 WL 2409907 (N.D. Ill. July 31, 2009); Doc. 271. The City challenged the standing of those non-parties to bring petitions to enforce the MCD; the court rejected this argument, finding that the MCD unambiguously conferred standing on "any person affected by the conduct complained of." ACLU, 2009 WL 2409907, at *3-*4 (quoting MCD) (emphasis in Opinion). To bring a valid petition, the court held, each such person must state a claim that the City retaliated against him for his exercise of his First Amendment rights in violation of the MCD. Id., at *4. Of particular relevance here, the court dismissed the petition of John Swietczak with prejudice and dismissed the petitions of Bruce Randazzo, Charles Walker, and Michael McGann without prejudice. Id., at *5-*8.*fn2

After his petition was dismissed with prejudice, Swietczak moved the court to reconsider its ruling. (Doc. 290.) Pursuant to the court's instructions in the Opinion, Randazzo, McGann, and Walker all filed amended petitions (Docs. 292, 293, 294), which the City moved to dismiss (Doc. 304-2).

I. ANALYSIS

Swietczak's and the City's motions, and the amended petitions, are now before the court, which addresses each motion in turn.

A. Swietczak

Swietczak seeks reconsideration pursuant to Federal Rule of Civil Procedure 60(b) of the court's ruling that his petition was time-barred. In its Opinion, the court stated as follows with respect to Swietczak's petition:

Swietczak's petition states that a city attorney "denied and obstructed a request for review of disciplinary action in 2004 and 2005 that was improperly imposed in retaliation for [First] Amendment activity." Swietczak Pet'n 2 (Doc. No. 152). Swietczak alleges that he suffered First Amendment "retaliation" after he applied for a District Foreman position in 2001, and that he was "improperly investigated and falsely accused with respect to a scandal in the city's Hired Truck Program in early 2004." Id. at 4. In his response to the City's motion to dismiss, Swietczak suggests that he "disclosed abuses" related to the Hired Truck Program and that he was denied a promotion as a result. Pet'rs' Jan. 8, 2009 Resp. Br. 3.

As alleged in his petition, Swietczak was disciplined in 2004 or 2005 for his disclosure of abuses related to the Hired Truck Program. Swietczak filed his petition on September 4, 2008. The petition was filed outside the two-year statute of limitations. The City's motion to dismiss Swietczak's petition is granted.

ACLU, 2009 WL 2409907, at *6 (citing Alliance to End Repression v. City of Chicago (Alliance 2000), Nos. 74 C 3268 & 75 C 3295, 2000 WL 1368004, at *1 (N.D. Ill. Sept. 21, 2000) (imposing two-year limitations period on petitions)). In his motion for reconsideration, Swietczak does not assert that the summary above erroneously described the allegations in his petition or those proffered in his response to the motion to dismiss. Instead, he asserts for the first time in the motion for reconsideration that he expressed concerns to the Federal Bureau of Investigation and the City of Chicago Inspector General about a litany of issues at the City (all unrelated to the Hired Truck Program, the basis of his earlier allegations), and that he suffered retaliation in March 2008, well within the limitations period. (See Doc. 290.)

Rule 60(b) allows reopening of a judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

In his motion, Swietczak does not cite any circumstance enumerated under Rule 60(b) that would justify the relief he requests. In reply, he contends only that the court should reopen the judgment because of "mistake or inadvertence," tracking the language of Rule 60(b)(1). However, he provides no explanation of how the circumstances of his case justify relief under Rule 60(b)(1), and cites no case on point.

As the Seventh Circuit has stated repeatedly, "'Neither ignorance nor carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1).'" Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th Cir. 1986) (quoting Ben Sager Chems. Int'l v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir.1977)); see also McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000) (quoting Kagan). The court has also noted that Rule 60(b) is an "extraordinary remedy" and that "[t]he rule was designed to address mistakes attributable to special circumstances...." Russell v. Delco ...


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