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Fredrickson v. Proviso Township

September 23, 2010

CHARLES FREDRICKSON, PLAINTIFF,
v.
PROVISO TOWNSHIP; MICHAEL CORRIGAN; DON SLOAN; TIMOTHY GILLIAN; ANTHONY "TONY" WILLIAMS; MARI HERRELL; AND RONALD SERPICO, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Charles Fredrickson has sued Proviso Township, and, each in his or her individual capacity, five individual Township board members and Ronald Serpico, who is the mayor of Melrose Park. Plaintiff asserts violations of 42 U.S.C. § 1983 and the Illinois common law of conspiracy. In count I, plaintiff alleges that all defendants except Serpico violated his First Amendment right to freedom of speech. In count II, he alleges that all defendants, including Serpico, conspired to deprive him of that constitutional right. Before me is defendant Serpico's motion to dismiss the count against him, which I grant for the following reasons.

I.

A motion to dismiss tests the sufficiency of the complaint, not its merits. See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). I must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). I need not, however, assume the truth of "a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Plaintiff must allege sufficient factual material to suggest plausibly that he is entitled to relief. Id. Although this does not amount to a "probability requirement," and a well-pleaded complaint may proceed even if recovery appears unlikely, id., plaintiff must nevertheless "present a story that holds together." Swanson v. Citibank, N.A.,---F.3d---, 2010 WL 2977297 at *3 (7th Cir. 2010).

II.

The story plaintiff tells in this case is one of political patronage, a familiar subject to the courts in this district. See Tarpley v. Keistler, 188 F.3d 788, 789 (7th Cit. 1999) ("For a quarter century now, well-meaning Illinois citizens periodically have turned to the courts in attempts to rid the state of an ageold rite: rewarding political supporters with the spoils of power, notably, but not exclusively, public employment.") In this case, plaintiff alleges that in April of 2001, a slate of candidates for the Proviso Township board was elected over an opposing slate backed by defendant Serpico.*fn1 The newly elected board appointed plaintiff, in June of 2001, to the position of Coordinator of Transportation for the Township. Plaintiff replaced defendant Serpico's brother in that position, and defendant Serpico "believes that his brother was fired for political reasons."

Plaintiff held his position (which was later renamed "Director of Transportation") from June of 2001 until June of 2009. During that time, plaintiff was politically active in a number of municipal elections in which he supported defendant Serpico's political opponents. In 2002, for example, plaintiff supported Serpico's successful opponent in the race for Cook County Commissioner. Serpico told plaintiff during that campaign, "I don't know when or how, but I'll get you."

In the 2005 Township board election, plaintiff supported candidates opposed to Serpico's slate, which included defendants Sloan, Gillian, Williams, and Herrell. Serpico, whose endorsement was powerful,*fn2 "hand-picked" these candidates because they would "owe their success" to him and would "vigorously pursue his political agenda." Ultimately, all of Serpico's candidates were elected except for Herrell, who lost the race for Township Supervisor to Kathleen Ryan, the candidate plaintiff supported.

Shortly after the 2005 election, Serpico met with the newly elected board members whose candidacy he had supported and told them that he wanted plaintiff fired. Plaintiff was not terminated, however, because Ryan, who plaintiff claims "had to approve all Proviso Township terminations," refused to authorize plaintiff's termination.

In the 2009 municipal elections, Serpico again supported candidates for the Township board who would vigorously pursue his political agenda. Plaintiff, for his part, again supported opponents to Serpico's slate. The candidates Serpico supported won all five positions on the Township Board. In addition, Serpico himself was successful in the 2009 Melrose Park mayoral race, in which plaintiff had supported Serpico's opponent.

On June 15, 2009, defendant Corrigan informed plaintiff that he would be terminated "because of politics" and that there would be a pre-termination hearing two days later. On June 17, 2009, "upon the recommendation of Defendant Corrigan," the Board voted to remove plaintiff from his position as Director of Transportation and replace him with an individual who had "donated thousands of dollars to the Serpico slate's campaign fund."

III.

Defendant Serpico raises two grounds for dismissal of the conspiracy claim against him. First, he argues that plaintiff has not adequately pleaded that he was a "willful participant in joint activity" with public officials. Vickery v. Jones, 100 F.3d 1334, 1344 (7th Cir. 1996) (quoting Adickes v. S.H. Kress and Company, 398 U.S. 144, 152 (1970)). This plaintiff must do because a violation of § 1983 requires state action, and although Serpico is the mayor of Melrose Park, he is not alleged to have acted in that capacity with respect to the claims here. Accordingly, to survive Serpico's motion to dismiss, the complaint must provide a plausible basis for claiming that Serpico "reached an understanding" with public officials to deprive him of his constitutional rights. Adickes, 398 U.S. at 152; Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Second, Serpico claims that he is protected by the Noerr-Pennington doctrine, which shields private citizens from civil liability for petitioning the government to act in their favor, even if the result of the petition harms the interests of others. See United Mine Workers of America v. Pennington, 381 U.S. 657, 670 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-44 (1961).

As to the sufficiency of plaintiff's pleading, while plaintiff is correct that the existence of a § 1983 conspiracy is a fact-driven inquiry, the facts he alleges generally tend to undermine, rather than support, his conspiracy theory. Plaintiff argues that his claim is supported by the following allegations: 1) that Serpico told the board member defendants in 2005 that he wanted plaintiff fired; 2) that the board member defendants were beholden to Serpico because he was instrumental in their election; and 3) that defendant Sloan voted to terminate plaintiff because Serpico told him to do so. Plaintiff contends that these facts are sufficient to state a § 1983 conspiracy claim under the Seventh Circuit's dicta in Tarpley v. Keistler, 188 F.3d 788 (7th Cir. 1999), in which the court speculated that on the evidence presented in that case, a jury might believe that the state merely "rubber-stamped" the private defendant's pick for a particular position. 188 F.3d at 793.*fn3 But if the board member defendants knew in 2005 that Serpico wanted plaintiff terminated, and they were so beholden to him that they could do nothing but "rubber-stamp" his employment decisions, how then could they have failed to terminate plaintiff in the ensuing four years? Moreover, if Serpico had "reached an understanding" with the defendant board members at their 2005 meeting (the only occasion on which Serpico is alleged to have discussed plaintiff with any of the board members) to fire plaintiff, why did Serpico again support defendants Sloan, Gillian, and ...


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