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Preston Albritton, et al v. Village of Dolton

September 28, 2011

PRESTON ALBRITTON, ET AL., PLAINTIFFS,
v.
VILLAGE OF DOLTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' motion to dismiss Plaintiffs' Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 For the following reasons, the Court grants in part with prejudice, grants in part without prejudice, and denies in part Defendants' motion.

INTRODUCTION

Ten Village of Dolton police officers ("Plaintiffs") bring this civil rights lawsuit against Defendants Village of Dolton ("Village"), Gail Towers*fn2 ("Towers"), and Village of Dolton Board of Trustees members Ronnie Lewis, James T. Jefferson, Garry Lambert, Willie L. Lowe, Samalla H. McClellan and Eva M. Nicholson (collectively, "Trustees")*fn3 . (R. 73, Second Amended Complaint ("SAC").) In their Complaint, Plaintiffs claim that Defendants (i) violated their rights to equal protection and free association under 42 U.S.C. § 1983 (Counts I & IV), (ii) deprived them of substantive due process under 42 U.S.C. § 1983 (Count II), and (iii) conspired to interfere with their civil rights under 42 U.S.C. § 1985 (Count III). Plaintiffs also bring a Monell policy claim against the Village (Count V), and common law claims of conspiracy (Count VI) and fraud (Count VII).

LEGAL STANDARD

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." AnchorBank, FSB v. Hofer, 649 F.3d 610 (7th Cir. 2011) (internal quotation and citation omitted). Pursuant to Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

As the Seventh Circuit has explained, this "[r]ule reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on technicalities[.]" Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Vance v. Rumsfeld, -- F.3d -- , 2011 WL 3437511, at *9 (7th Cir. Aug. 8, 2011) (courts accept factual allegations as true and draw all reasonable inferences in plaintiff's favor in a Rule 12(b)(6) proceeding).

BACKGROUND*fn4

At some point prior to October 13, 2007, Defendants Village of Dolton and the Trustees posted a notice that the Village would be offering a promotional examination for police sergeant on October 13, 2007. (SAC ¶ 32.) Plaintiffs met all of the requirements to sit for the exam, and registered to take it. (Id. ¶ 33.) On October 13, 2007, Plaintiffs and other similarly situated applicants took the written portion of the sergeant's promotional examination. (Id. ¶ 47.) Unlike Plaintiffs, however, two of the other "similarly situated applicants" -- Dolton Police Officers Robert Fox and Curtis Rempson -- actively participated in the Cook County Democratic Party and made campaign donations to "Citizens to Re-Elect William 'Bill' Shaw"(the then-mayor of Dolton) and "Citizens to Re-Elect Robert 'Bob' Shaw" (the mayor's twin brother, who the mayor appointed to be the Inspector General of Dolton) in the several months leading up to the sergeant's examination.*fn5 (Id. ¶¶ 34-42).

Resource Management Associates proctored and graded the examination. (Id. ¶ 47.) Pursuant to Chapter III, Section (C)(a) of the Village of Dolton Board of Fire and Police Commissioners Rules and Regulations, an applicant needed to score a minimum of seventy (70) points to pass the written portion of the exam and advance to oral interviews, absent the Village of Dolton or the Board of Fire and Police Commissioners using a "grading curve." (Id. ¶ 48.) According to the results Resource Management Associates provided to Defendant Towers, Robert Fox and Curtis Rempson both scored below 70 on the exam, receiving scores of 63 and 60, respectively. (Id. ¶ 49.) Plaintiffs allege, upon information and belief, that Mayor Shaw asked Defendant Towers to change Fox and Rempson's test scores and to falsify a 'Tentative Eligibility List.' (Id. ¶ 51.) Plaintiffs further allege that Defendant Towers complied with the mayor's request, adding twenty (20) points to Fox and Rempson's written test scores so that they would appear to have earned the highest and third-highest scores on the examination. (Id. ¶ 52.)

Each of the Plaintiffs scored above 60 on the written portion of the promotional examination, and received scores higher than Fox and/or Rempson. (Id. ¶ 55.) Nevertheless, Defendants refused to allow eight of the Plaintiffs to continue to the oral interview. (Id. ¶ 56.)

Following the oral interviews, on or about December 5, 2007, Defendants Towers and the Village of Dolton produced a Tentative Eligibility List that ranked Fox first. (Id. ¶ 53.) Rempson ranked second on that list. (Id.) Plaintiffs claim that Defendants Towers and the Village of Dolton fabricated that list. (Id.) At the time (i.e, in 2007), a minimum of four commissioners on the Village of Dolton Board of Fire and Police Commissioners needed to sign the Village's promotional eligibility list in order for it to be valid. (Id. ¶ 58.) Plaintiffs allege that the Board of Fire and Police Commissioners never met to approve the December 5, 2007 Tentative Eligibility List, and that at least three of the four commissioners' signatures on the list were forged. (Id. ¶¶ 59, 60.)

Defendants Towers and the Village of Dolton posted a 'Final Eligibility List' on or about December 21, 2007. (Id. ¶ 61.) That list factored in "Seniority Points" and "Military Points." (Id.) Fox ranked first on the Final Eligibility List, and Rempson ranked fourth. (Id.) Plaintiffs claim that Defendants Towers and the Village of Dolton fabricated that list, too, and that the commissioners' signatures on that list are photocopies of the (forged) signatures found on the December 5, 2007 Tentative Eligibility List. (Id. ¶ 62.) According to Plaintiffs, the Village of Dolton Board of Fire and Police Commissioners did not hold an official meeting on either December 5 or December 21, 2007 to approve the promotional lists. (Id. ¶ 63.)

Defendants promoted Robert Fox to sergeant on or about December 31, 2007. (Id. ¶ 65.) The following week, Defendants promoted Fox to the position of Chief of Police. (Id. ¶ 66.) Plaintiffs allege that Defendants knew Fox's true score of 63 when they voted to promote him. (Id.) On or about March 15, 2008, Defendants promoted Rempson to the rank of sergeant. (Id. ¶ 67.) Plaintiffs allege that Defendants knew Rempson's true score of 60 when they voted to promote him. (Id.)

Plaintiffs claim that Defendants refused to promote Plaintiffs because Plaintiffs chose not to associate with, or donate to, the Cook County Democratic Party. (Id. ¶ 69.)*fn6 Plaintiffs also claim that Defendants lowered Plaintiff Kevin Rene's score on the written examination from seventy-two (72) to seventy (70) without justification before they posted the ...


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