The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
In his two-count Second Amended Complaint (Dkt. No. 15 ("2d Am. Compl.")), plaintiff Rickey Coleman ("Coleman") alleges that defendants Cook County, J.W. Fairman ("Fairman"), Kim David Gilmore ("Gilmore"),*fn1 the Chief Judge of the Circuit Court of Cook County, Illinois,*fn2 and Earl Dunlap ("Dunlap") unlawfully terminated Coleman's employment as an Administrative Assistant IV/Floor Manager at the Cook County Juvenile Temporary Detention Center ("JTDC") and failed to offer Coleman preferential rehire options because of Coleman's political affiliation, in violation of Coleman's First Amendment rights as protected by 42 U.S.C. § 1983 and the "Shakman Decree." See Shakman v. Democratic Org. of Cook County, No. 69 C 2145 (N.D. Ill.).
Pending before the court are the "County Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint" (Dkt. No. 22) and the "Motion of Defendants Earl Dunlap and The Chief Judge of the Circuit Court of Cook County, Illinois to Dismiss Plaintiff's Second Amended Complaint" (Dkt. No. 24). For the reasons set forth below, the motions are both granted in part and denied in part. Coleman's Shakman claim (Count I) is dismissed with prejudice in part pursuant to the doctrine of res judicata, to the extent Count I is based on Coleman's March 16, 2007 termination. To the extent Count I is based on Coleman's failure to rehire allegations, Count I remains pending against Cook County and Dunlap. Coleman's § 1983 claim (Count II) is dismissed with prejudice as alleged against defendants Fairman and Dunlap, in their individual capacities, and is dismissed without prejudice as alleged against Cook County. Coleman is granted leave to file a Third Amended Complaint consistent with this order on or before July 8, 2011, amending his Monell claim against Cook County, should he desire to do so.
For purposes of the pending motions to dismiss, the court accepts the factual allegations in Coleman's Second Amended Complaint as true and draws all reasonable inferences in favor of Coleman. Ray v. City of Chi., 629 F.3d 660, 662 (7th Cir. 2011). The facts set forth below are therefore stated from this perspective.
Coleman is a former employee of the JTDC, where he served in various positions beginning in 1988. (2d Am. Compl.*fn3 ¶¶ 5, 11-14.) Most recently, before his termination on March 16, 2007, Coleman served as an Administrative Assistant IV/Floor Manager. (Id. ¶ 5.) Defendants Gilmore and Fairman together were the final decision-makers with respect to Coleman's March 16, 2007 termination. (Id. ¶ 6.) Dunlap has served as the Transitional Administrator of the JTDC since his appointment in August 2007 by Judge John A. Nordberg in the case of Doe v. Cook County, No. 99 C 3945 (N.D. Ill.). (Id.; see also No. 99 C 3945 (Dkt. No. 330).)
At the time of Coleman's termination, Gilmore informed Coleman that he was being laid-off due to a reduction in budget. (Id. ¶ 5; Count I, ¶ 21.) Shortly after his termination, however, Coleman discovered that his position had been renamed to "Team Leader" and had been filled by "political employees" who performed the same duties as those performed by Coleman at the time of his layoff. (Count I, ¶ 23.) Contrary to Gilmore's representations, the budget actually increased. (Count I, ¶ 24.)
Gilmore also told Coleman that he was eligible for preferential rehire. (Count I, ¶ 21.) Since his layoff, Coleman has applied for positions as a Recreational Supervisor, a Group Service Supervisor, a Recreational Worker,*fn4 a Juvenile Counselor, and an Assistant Team Leader at the JTDC. (Count I, ¶ 27.) The position of "Team Leader" was never posted. (Count I, ¶ 23.)
On June 2, 2009, Coleman received an email stating that he had been selected to be interviewed for the position of Recreation Worker. (Count I, ¶ 28.) During his interview, however, Coleman was told that the position of Recreational Worker was not available. (Id.) When Coleman asked whether the position of Assistant Team Leader was available, he was told that the only position available was the position of Juvenile Counselor. (Id.) According to County postings on the Internet at CareerBuilder.com, the positions of Assistant Team Leader, Juvenile Detention Counselor, and Recreation Worker were open as of June 2, 2009. (Count I,¶ 29.) Coleman told his interviewers that he would accept a position as a Juvenile Counselor. (Id.) On June 22, 2009, Coleman received a letter informing him that he had not been selected for the position of Juvenile Counselor, despite his skills and qualifications for that position. (Count I, ¶ 28.) Coleman's request to County Recruiter Felecia Watson for an investigation into the circumstances surrounding his June 2009 interview went unanswered. (Count I, ¶ 30.)
Coleman's layoff was approved by Fairman, who was a political appointee of the late John Stroger. (Count I,¶ 22.) Before his layoff, Coleman had been repeatedly told by his immediate supervisor, Willie Ross, that "you think you are protected but you are not. You better learn to play the game and support John Stroger." (Count I, ¶ 25.) Coleman took this to mean he should donate to Stroger's campaign and the campaigns of his friends. (Id.)
Coleman alleges that Cook County has "intentionally us[ed] a political reason or factor to choose other candidates over Coleman despite his superior qualifications, experience, and skills," and that Cook County and Dunlap "have continued to engage in a pattern or practice of violating the Shakman Decree." (Count I, ¶¶ 32-33.) Coleman also alleges that Cook County, Fairman, and Dunlap acted under color of state law to violate Coleman's First Amendment rights of free speech and free association by "denying him promotions [and] denying him preferential or normal rehire." (Count II, ¶¶ 20-22.)
Under the Federal Rules of Civil Procedure, a complaint generally must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
If the allegations of a complaint "fail[ ] to state a claim upon which relief can be granted," the complaint will be dismissed. Fed. R. Civ. P. 12(b)(6). In making its determination in this case, the court construes Coleman's Second Amended Complaint in the light most favorable to Coleman, accepts as true all well-pleaded factual allegations set forth therein, and draws all reasonable inferences in Coleman's favor. Ray, 629 F.3d at 662.
I. Court's Grant of Immunity to Dunlap in Doe v. Cook County As a matter of procedure, district courts are permitted "to take judicial notice of matters
of public record without converting a motion for failure to state a claim into a motion for summary judgment." Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). This court takes judicial notice of the fact that Dunlap was appointed by District Judge John A. Nordberg to serve as the Transitional Administrator of the JTDC on August 14, 2007, as well as other orders entered in the case of Doe v. Cook County. (See 99 C 3945, Dkt. No. 330 ("Appointment Order") ¶ 4.) The Appointment Order begins with the following statement of purpose,
The purpose of this Order is to appoint a Transitional Administrator (TA) with the authority and responsibility to bring the [JTDC] into substantial compliance with the Memorandum of Agreement (MOA), the Agreed Supplemental Order (ASO), and the Modified Implementation Plan (MIP) [all previously entered in the case of Doe v. Cook County] and, if consistent with Illinois law, to prepare the JTDC for the transition of administrative authority over its operations to the Office of the Chief Judge of the Circuit Court of Cook County. (Id. ¶ 1.) The Appointment Order continues, "The TA shall be an agent of this Court and is specifically appointed with the authority and responsibility to put in place at the JTDC qualified management to implement the requirements of the MOA, the ASO, and the MIP." (Id. ¶ 2.) Pursuant to this mandate, Dunlap was given extensive administrative responsibility over the JTDC, including the responsibility "[t]o oversee, supervise, and direct all management, administrative, financial, contractual, personnel, security, housing, custodial, purchasing, maintenance, technology, health services, mental health services, food and laundry service, recreational, educational, and programmatic functions relating to the operations of the JTDC consistent with the authority vested in the position of the Superintendent of the JTDC and to restructure the JTDC into an institution that substantially complies with the MOA, the ASO, and the MIP." (Id. ¶ 5.b.) Relevant to the pending lawsuit, Dunlap was also explicitly granted "[t]he power to establish personnel policies; to create, abolish, or transfer positions; and to hire, terminate, promote, transfer, and evaluate management and staff of the JTDC." (Id. ¶ 6.c.)
The original Appointment Order granted Dunlap "absolute immunity from liability." (Id. ¶ 7.h.) In 2010, in response to a request by Dunlap in Doe v. Cook County, this provision was later amended with retroactive effect to read, Effective August 14, 2007, the TA and his staff shall have the status of officers and agents of this Court and as such shall be vested with the same immunities as vest with this Court. Also effective August 14, 2007, the County shall indemnify the TA and members of his staff to the same extent that Cook County and/or the Office of the Chief Judge of the Circuit Court of Cook County is obligated to indemnify the Superintendent of the JTDC. (No. 99 C 3945, Dkt. No. 587 ("June 22, 2010 Order"); see also Dkt. No. 638 ("June 22, 2010 Hr'g Tr.") 3:19-4:7 (Doe plaintiffs and Cook County agree to Dunlap's proposed amendment).)
Based on his grant of immunity, Dunlap contends that Coleman's claims must be dismissed for failure to state a claim for which relief can be granted. While Dunlap acknowledges that he "performs no judicial functions" (Dkt. No. 42 ("Dunlap's Reply") at 3), he nevertheless contends that he has been granted "absolute immunity for all of his actions that are within his jurisdiction and capacity as Transitional Administrator." (Dkt. No. 25 ("Dunlap's Mem.") at 6.) In making this argument, Dunlap does not directly address the specific language defining his grant of immunity as "the same . . . as vest[s] with this Court." (June 22, 2010 Order.) Rather, Dunlap asserts that he "has been granted immunity analogous to that held by a federal judge," and that his immunity "arises out of his conduct as the JTDC Transitional Administrator, just as a judge's immunity arises out of the performance of his or her judicial function." (Dunlap's Reply 4-5 (emphasis added).)
Dunlap's interpretation of the amended immunity language goes too far. Dunlap was not granted immunity analogous to the absolute immunity enjoyed by judges; rather, he was granted "the same immunities as vest with this Court." (June 22, 2010 Order (emphasis added).) The immunity that vests with the court is limited in scope. As the Seventh Circuit recently reiterated, "[a]bsolute immunity . . . applies only to judicial acts and does not protect the official from acts that are ministerial or administrative in nature." Heyde v. Pittenger, 633 F.3d 512, 517 (7th Cir. 2011) (citing Dawson v. Newman, 419 F.3d 656, 661 (7th Cir. 2005)).*fn5 Because Dunlap's grant of immunity is co-extensive with the court's judicial immunity, Dunlap cannot have been granted immunity for his administrative actions.
The court appreciates Dunlap's argument that he "has no need for immunity for any judicial acts," and therefore it "would make no sense" to limit Dunlap's immunity in the manner set forth above. (Dunlap's Reply 3.) The court rejects this argument, however, as being inconsistent with the immunity language requested by Dunlap and ordered by the court in Doe v. Cook County. (See No. 99 C 3945, Dkt. No. 579 ("The TA proposes replacing the language in Paragraph 7(h) with the following: [. . . ] "the TA and his staff . . . shall be vested with the same immunities as vest with this Court.").) Even if the court were to find that the language of the amended immunity clause supports Dunlap's interpretation, which it does not, the court also is not persuaded that it has the authority to confer upon its agent a more expansive grant of immunity than the court itself enjoys. See Cleavinger v. Saxner, 474 U.S. 193, 199 (1985) (noting the common law roots of judicial immunity); see also Tower v. Glover, 467 U.S. 914, 922-23 (1984) ("We do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy.").
Dunlap argues for the first time in his sur-reply brief that court-appointed receivers in general are granted the same "broad immunity granted to judges," as long as they are acting within the scope of their receivership. (Dkt. No. 47 ("Dunlap's Sur-Reply") at 3 (quoting Fed. Trade Comm'n v. 3R Bancorp, No. 04 C 7177, 2006 WL 2191317, at *1 (N.D. Ill. July 28, 2006)).) Dunlap's reliance on Federal Trade Commission is misplaced, however, because the district court in that case rejected "the Receiver's request for a broad release from liability." Fed. Trade Comm'n, 2006 WL 2191317, at *2. For the reasons set forth below, this court also respectfully disagrees with the district court's conclusion in Bowie v. Sims, No. 2:05-cv-1050-RDP, 2005 U.S. Dist. LEXIS 45789, at *12 (N.D. Ala. Dec. 7, 2005), that the defendant receiver was entitled to absolute judicial immunity because he "was acting within the scope of his authority as Receiver of the Board when he allegedly discriminated and retaliated against Plaintiff with regard to employment decisions." Bowie, 2005 U.S. Dist. LEXIS 45789, at *12.
The Seventh Circuit does recognize a type of "quasi-judicial" immunity that functions to protect defendants from liability for their actions in executing court orders. See Snyder v. Nolen, 380 F.3d 279, 286-87 (7th Cir. 2004) (explaining the two types of quasi-judicial immunity, only one of which applies to Dunlap's actions*fn6 ). Under Seventh Circuit case law, however, acting "within the scope" of a judicial order is not enough; rather, the Seventh Circuit has explained that this type of quasi-judicial immunity is only appropriate when the defendant's actions have been explicitlyordered by a judicial officer. See, e.g., Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992) ("[W]hen functions that are more administrative in character have been undertaken pursuant to the explicit direction of a judicial officer, we have held that that officer's immunity is also available to the subordinate."); see also Schneider v. County of Will, 366 Fed. App'x 683, 685 (7th Cir. 2010) ("Although the contours of quasi-judicial immunity remain unsettled, courts regularly require non-judicial actors invoking the doctrine to demonstrate that their acts were directly and explicitly ordered by a judge."). "The policy justifying an extension of absolute immunity in these circumstances is to prevent court personnel and other officials from becoming a lightening rod for harassing litigation aimed at the court." Snyder, 380 F.3d at 287 (quoting Richman v. Sheahan, 270 F.3d 430, 435 (7th Cir. 2001)). Although would-be plaintiffs are barred from directly suing the officials responsible for executing the court order in question, litigants can nevertheless contest the legality of the underlying court order through the usual appellate process. Henry v. Farmer City State Bank, 808 F.2d 1228, 1239 (7th Cir. 1986) (citing Ashbrook v. Hoffman, 617 F.2d 474, 477 (7th Cir. 1980)); cf. Forrester, 484 U.S. at 227 ("[m]ost judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability"). Thus, the Seventh Circuit has found that absolute quasi-judicial immunity was appropriately granted to protect a clerk of court whose actions were undertaken "at judicial direction," Kincaid, 969 F.2d at 601; to protect ...