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David Kristofek v. Village of Orland Hills

May 8, 2012

DAVID KRISTOFEK, PLAINTIFF,
v.
VILLAGE OF ORLAND HILLS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' partial motions to dismiss. For the reasons stated below, the partial motions to dismiss are granted in part and denied in part without prejudice. In addition, the remaining state law claims are remanded to state court.

BACKGROUND

Plaintiff David Kristofek (Kristofek) was allegedly hired in September 2010 as a part-time police officer by Defendant Village of Orland Hills (Village). Kristofek claims that in November 2010, he executed a traffic stop and proceeded to issue two traffic tickets (Tickets) and arrest (Arrest) the driver (Driver). Kristofek claims that upon returning to the police station, he was told by other officers not to complete the paperwork for the Tickets and to delete the information entered about the Arrest on the police computer system. Kristofek claims that he decided to personally speak to Deputy Chief Blaha (Blaha) about the Arrest. According to Kristofek, Blaha took the documents from Kristofek relating to the Arrest (Arrest Documents) and ordered the Driver to be released from custody. Kristofek contends that Blaha acted for improper political motives.

In April 2011, Kristofek allegedly participated in an online police training seminar that dealt with police misconduct (Seminar), and Kristofek allegedly became concerned that since his name appeared on the Tickets and Arrest Documents, he might face criminal and civil liability because of the release of the Driver. Kristofek claims that he also became concerned that a crime was being committed by the failure to forward the Tickets and Arrest Documents to the Village Clerk's Office. Kristofek allegedly then consulted with an attorney and contacted the Federal Bureau of Investigation (FBI). Kristofek also allegedly informed other officers involved in the Arrest that Kristofek had contacted the FBI.

On April 21, 2011, Kristofek allegedly met with Blaha and Defendant Chief Thomas Scully (Scully). Scully allegedly indicated that he had heard that Kristofek had been speaking to other Village police officers about the Arrest. Kristofek then allegedly informed Scully that he had reported the alleged misconduct relating to the Arrest to an outside law enforcement agency. Scully allegedly admonished Kristofek, stating that Scully needed to be able to trust his officers and that he no longer trusted Kristofek. Scully then allegedly gave Kristofek the option of resigning or having his employment terminated. Kristofek claims he refused to resign and he was allegedly fired for insubordination.

Kristofek includes in his complaint a claim based on alleged retaliation for refusal to participate in illegal activity brought under the Illinois Whistleblower Act, 740 ILCS 174/20 (Count I), a claim based on alleged retaliation for reporting of illegal activity brought under the Illinois Whistleblower Act (Count II), a claim based on alleged retaliation for other conduct protected under the Illinois Whistleblower Act (Count III), a state law retaliatory discharge claim (Count IV), a claim alleging a violation of his First Amendment rights brought pursuant to 42 U.S.C. § 1983 (Section 1983) (Count V), and a free speech claim based on an alleged violation of the Illinois Constitution (Count VI). Defendants have each filed a motion to dismiss the claims brought against them in Counts V and VI.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).

DISCUSSION

The Village argues that Kristofek has not alleged sufficient facts to state a valid Monell claim. In addition, the Village and Scully argue that Kristofek has failed to allege sufficient facts to suggest that the speech at issue was protected by the First Amendment.

I. Monell Claim

The Village argues that Kristofek has not alleged sufficient facts to state a valid Monell claim. If a plaintiff brings a Section 1983 Monell claim against a local governmental entity, the entity can only be held liable for an unconstitutional act "if the unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated by its officers; (2) a governmental practice or custom that, although not officially authorized, is widespread and well settled; or (3) an official with final policy-making authority." Thomas v. Cook County Sheriff's Dept., 604 F.3d 293, 303 (7th Cir. 2010). Kristofek acknowledges that he has not alleged in the complaint that any express policy or practice of the Village ...


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