The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Crandall Collins filed this lawsuit, alleging that Defendants Board of Education for the North Chicago Community Unit School District 187, North Chicago Community Unit School District 187, Missouri Myers, Sharon Epps, and Henrietta Graham violated his constitutional rights when the Board failed to hire him for a vacant position within the District. This matter is before the Court on Defendants' motion to dismiss  Plaintiff's amended complaint . For the reasons stated below, the Court grants Defendants' Motion to Dismiss . Counts I and IV are dismissed with prejudice, and Counts V and VI are dismissed with prejudice to the extent that they are based on Illinois state law. To the extent that Counts V and VI reflect federal claims based on Plaintiff's right to free speech, the counts remain pending. The Court also dismisses Plaintiff's Counts VII and VIII without prejudice, and gives Plaintiff twenty-one days from the date of this order to submit a motion for leave to file a second amended complaint if he believes that he can do so consistent with the discussion below. Defendant North Chicago Community Unit School District 187 is dismissed as a Defendant.*fn1
Plaintiff Crandall Collins ("Plaintiff" or "Collins") applied for the position of human resources director with the North Chicago Community Unit School District 187 (the "School District") twice, once in 2004 and once in 2009.*fn3 In 2004, after interviewing Collins, the North Chicago Community Unit School Board (the "School Board" or "Board") selected a different candidate to fill the position.
In the spring of 2009, prior to Plaintiff re-applying for a position with the School District, the Board held elections to fill four vacant Board seats. At the time of this election, Defendants Missouri Myers and Henrietta Graham held two seats not up for re-election. Defendant Sharon Epps, then a member of the Board, ran for re-election to fill one of the four vacant seats. Lanelle Collins, Plaintiff's wife, ran on a ticket with two others (Kenneth Robinson and Jill Janezich) to fill the three remaining seats. On the eve of the election, Plaintiff distributed election notice flyers for his wife and the two others running on her ticket. Lanelle Collins, Robinson, and Janezich were all elected to the Board, and Defendant Epps was reelected.
Soon after the elections, in August of 2009, Plaintiff again applied for a vacant position with the School District. Plaintiff alleges that no mention was made prior to his applying for the position that a "Type 75 Administrative Certificate" was required for the position, but that after he applied, Defendants Myers, Epps, and/or Graham sought to add a requirement that candidates for the position possess this Administrative Certificate. Plaintiff holds no such certification. The Board ultimately voted against adopting the Type 75 Administrative Certificate requirement.
In September 2009, the Board placed Plaintiff's job application on its executive session agenda. By its own procedural rules, the Board was required to reach a consensus during its executive session as to whether it would place Plaintiff's employment application on the agenda for an open session, where the application would be the subject of a discussion and vote. Plaintiff's wife (at that point a member of Defendant School Board) "excused herself" from the executive session vote. Plaintiff alleges that during the executive session, Defendants Myers, Epps and Graham initially sought to declare Plaintiff's employment application ineligible because Plaintiff had "'campaigned for Collins and the others on her ticket' or words to that effect and of similar import." Plaintiff also alleges that "during the Executive Session and later," Defendant Myers noted that she had contacted Plaintiff's references and reported that she had found that Plaintiff had "'problem references' or words to that effect and of similar import." Plaintiff alleges that three members of the Board (Robinson, Murray and Janezich) voted to place Plaintiff's employment application on the Board's next open session, but that the remaining three members, Defendants Myers, Epps and Gram, voted against doing so.
Subsequent to the executive session meeting, Plaintiff alleges that Defendant Epps told Plaintiff that she "'had no doubt that he was more that [sic] qualified but she would not vote for anyone without a Type 75 Administrative Certificate' or words to that effect and of similar import." Plaintiff alleges that the Board "has failed and refused" to put Plaintiff's employment application on the agenda of its open session for discussion for a vote; he also alleges that the Board has failed to "otherwise advise him as to his candidacy for the Position." Plaintiff alleges that he wrote to the Board on March 4, 2010, seeking a resolution of the matter, but his letter went unanswered. Finally, Plaintiff alleges that he has submitted his resume and job application to "several hundreds of human resources and other positions and job postings," but has been unable to find employment in this field.
On April 30, 2010, Plaintiff brought a ten-count complaint against the School District, the School Board, Epps, Myers, Graham, and Roycealee Wood in the Illinois Circuit Court for the Nineteenth Judicial Circuit in Lake County, Illinois. On June 1, Defendants removed the case to this Court. Defendants then moved to dismiss Plaintiff's initial complaint, and Plaintiff countered by filing an amended complaint. Although Plaintiff failed to request leave of court to file this amended complaint, which prompted a motion to strike by Defendants, the Court eventually granted Plaintiff's oral motion for leave to file an amended complaint.
Plaintiff's amended complaint sets forth eight counts: (1) a claim based on Illinois statute 105 ILCS 5/10, alleging the Individual Defendants violated their obligations set out in their Oath of Office they took as School Board members; (2) a request for an order of mandamus against the Individual Defendants based again on their alleged breach of their Oath of Office under 105 ILCS 5/10, and under 105 ILCS 5/3-15.5, giving a county superintendant the power to remove members of any school board from office for willful failure to perform official duties; (3) a defamation per se claim based on Defendant Myers' statement that Plaintiff had "problem references"; (4) a defamation per quod claim based on the same facts as Count III; (5) a § 1983 claim based on the First Amendment to the United States Constitution and Article I, § 4 of the Illinois Constitution alleging that Defendants retaliated against Plaintiff after he campaigned on his wife's behalf; (6) a § 1983 claim alleging that Defendants deprived Plaintiff of his constitutional rights and "failed to act to remedy an unconstitutional wrong committed with deliberate indifference" when they refused to consider Plaintiff's employment application because he campaigned for his wife in the school board elections; (7) a claim based on the Fourteenth Amendment to the United States Constitution alleging that Defendants deprived Plaintiff of his substantive due process rights because their failure to and refusal to place Plaintiff's employment application on their open session agenda was "arbitrary and irrational"; and (8) a claim based on the Fourteenth Amendment to the United States Constitution alleging that Defendants deprived Plaintiff of his procedural due process rights by failing to afford him with an opportunity for a pre-determination notice and hearing, a post-determination administrative review of the determination, and a right to be heard at the review.
Defendants moved to dismiss all counts of the amended complaint pursuant to Fed. R. Civ. P 12(b)(6), save for Plaintiff's § 1983 claim for violation of the First Amendment, which is encompassed in Counts V and VI. Defendants contend that Plaintiff's claims based on Illinois state law are barred by the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2, and that his Fourteenth Amendment claims fail to adequately allege the necessary elements to demonstrate deprivation of any of Plaintiff's recognized interests. In Plaintiff's response to Defendants' motion to dismiss, he introduced new legal theories to support his Fourteenth Amendment claims, so that they are based on the deprivation of Plaintiff's free speech rights (essentially, the same grounds laid out in Counts V and VI of the Amended Complaint).
On December 7, 2010, Plaintiff stipulated to the dismissal of Counts II (the only claim against Defendant Wood) and Count III (defamation per se).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts ...