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Thomason v. the City of St. Elmo

October 29, 2010

KEN THOMASON, PLAINTIFF,
v.
THE CITY OF ST. ELMO, AND LARRY TISH, INDIVIDUALLY,AND IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF ST. ELMO, DEFENDANTS.



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

MEMORANDUM AND ORDER

Ken Thomason brought this action against the City of St. Elmo and Larry Tish for violation of his right to due process under the Fourteenth Amendment, 42 U.S.C. § 1983, and against the City of St. Elmo for violation of the Illinois Whistleblower Act, 740 ILCS 174/15. Defendants move to dismiss Counts 1 and 2 of Thomason's complaint (Doc. 9). For the reasons stated below, Defendants' motion is denied.

I. Factual Allegations

The complaint alleges the following facts. Ken Thomason was the City's Chief of Police from February 1993 until November 2009. From April 2009 to the present, Larry Tish has served as the City's Mayor. Shortly after Tish's election in the spring of 2009, he met with Thomason and made clear and certain promises to Thomason of continued employment as Chief of Police.

Division 2, 2-2-6 of the Ordinances of the City of St. Elmo provides that the Mayor may remove City officers only "for cause." Also, pursuant to Section 3.1-35-10 of the Illinois Municipal Code, Tish was required to report to the aldermen or city council the real reasons for removal of the chief of police. At a meeting held on November 12, 2009, Tish provided the City's aldermen with "false, patently dishonest and pretextual reasons" for terminating Thomason's employment.

II. Legal Standard

Although Defendants do not specify under which of the Federal Rules of Civil Procedure they bring their motion, the substance of the motion makes clear that they move pursuant to Rule 12(b)(6). 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. Discussion

Defendants challenge Thomason's claims on three grounds: (1) Thomason had no property interest in his employment and is not entitled to due process of the type alleged; (2) Tish is entitled to qualified immunity; and (3) Thomason has made no effort to plead, nor could he plead, a proper Monell claim.

A. Whether Thomason has a property interest in his job

In analyzing any due process claim, this Court must answer two questions: "(1) whether the defendants deprived the plaintiff[] of a constitutionally protected liberty or property interest; and (2), if so, whether that deprivation occurred without due process ...


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