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American Civil Liberties Union of Illinois et al v. City of Chicago et al

September 23, 2011

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



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

MEMORANDUM OPINION AND ORDER

Before the court is the City of Chicago's (the "City's") motion to dismiss the second amended petitions of Michael McGann and Charles Walker (hereinafter, the "petitioners"). For the reasons set forth below, the motion is granted.

I.BACKGROUND

As the court previously explained:

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 petitions of . . . Charles Walker[] and Michael McGann without prejudice. Id., at *5-*8.*fn2 . . . Pursuant to the court's instructions in the Opinion, . . . McGann[] and Walker . . . filed amended petitions (Docs. 292, 293, 294), which the City moved to dismiss (Doc. 304-2).

ACLU v. City of Chi., No. 75 C 3295, 2010 WL 3273279, at *1 (N.D. Ill. Aug. 13, 2010).

McGann and Walker have since filed second amended petitions to enforce the MCD, in which they seek declaratory judgments, backpay, and other relief. (See ECF Nos. 322-23.) Walker alleges he was terminated from his position as a building inspector by the City of Chicago because of statements he made to a newspaper about building safety, a matter of public concern, that were subsequently published. McGann alleges he was suspended from his position as a plumbing inspector by the City of Chicago after making public statements about water quality at a public school. Both Walker and McGann had claims adjudicated before the Human Resources Board of the City of Chicago (the "Board") regarding the disciplinary actions taken by the City. In an October 16, 2007 opinion, the Board found that Walker's dismissal was based on grounds other than his protected speech and upheld his dismissal. In an April 14, 2009 opinion, the Board found that McGann's suspension was not retaliatory and that he was suspended for reasons other than his protected speech; however, the Board reversed his suspension because the City did not prove by a preponderance of the evidence that McGann violated Personnel Rule XVIII by recording a disciplinary meeting.

In November 2010, the City moved to dismiss Walker's and McGann's second amended petitions on two bases: (1) the petitioners failed to state a claim upon which relief may be granted, and (2) the petitions are barred by the doctrines of res judicata and collateral estoppel.

II.LEGAL STANDARD

Rule 12(b)(6) enables a defendant to seek dismissal of a complaint -- here, the petitions are the complaints -- that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court must "tak[e] all well-pleaded allegations of the complaint as true and view[] them in the light most favorable to the plaintiff," Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000)), or, in this case, in the light most favorable to the petitioners. Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, ---U.S. ----, 129 S. Ct. 1937, 1949 (2009). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief" so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although "detailed factual allegations" are not necessary, a petitioner's "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Rather, the petitioners must provide enough factual allegations to state a claim for relief that is not only conceivable, but "plausible on its face." Id. at 555 & 570; see Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) ("[A] plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law."). "A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

III.ANALYSIS

A. Whether McGann's and Walker's petitions should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

The City argues that McGann's and Walker's petitions should be dismissed because, although each claims that he was fired because he exercised his right to free speech, neither alleged facts sufficient to suggest anything more than that each was fired after he exercised his right to free speech, and suspicious timing is not enough to enable to the court to draw the reasonable inference that the City retaliated against them based upon their speech.

A quick review of McGann's second amended complaint reveals that McGann has not alleged anything more than suspicious timing. Whether Walker has alleged anything more than suspicious timing is a slightly closer question, as he alleges that a City attorney admitted that Walker was fired as a result of his comments to a newspaper reporter. However, Walker includes these alleged admissions in his complaint and they do not support Walker's allegation that the attorney admitted as much. Nor do the ...


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