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Gregory Simmons v. Timothy Gillespie


May 14, 2012


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge


Tuesday, 15 May, 2012 10:05:13 AM Clerk, U.S. District Court, ILCD


This matter is before the Court on Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 9). Plaintiff has responded in opposition to the Motion, and it is now ready for disposition. (Docs. 11 & 12). Defendant has also filed a Motion for leave to file a Reply brief, which the Court denies; no Reply is necessary for the Court to properly interpret the parties' arguments. (Doc. 13). For the reasons stated below, the Motion to Dismiss is granted in part.


"In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party." In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008)). To survive a motion to dismiss under 12(b)(6), a plaintiff's complaint must "plead some facts that suggest a right to relief that is beyond the 'speculative level.'" EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63 (2007)). Though detailed factual allegations are not needed, a "formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 547. "The complaint must contain 'enough facts to state a claim to relief that is plausible on its face.'" Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 602 (7th Cir. 2009) (quoting Twombly, 550 U.S. at 557; Tamayo, 526 F.3d at 1084).

On the other hand, "complaints need not anticipate and attempt to plead around defenses." U.S. v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (citing Gomez v. Toledo, 446 U.S. 635 (1980); United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003)). Dismissal on statute of limitations grounds should only be granted where the "plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint's tardiness." Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559 F.3d 671, 674-75 (7th Cir. 2009) (citing Hollander v. Brown, 457 F.3d 688, 691 fn. 1 (7th Cir. 2006) ("a federal complaint does not fail to state a claim simply because it omits facts that would defeat a statute of limitations defense")).


Plaintiff's Complaint alleges that he, a Pekin Police officer, was removed from duty by Defendant Gillespie on March 23, 2006, and returned him to work September 15, 2008. Plaintiff lost wages and benefits while off-duty during this period.

On March 23, 2007, Defendant Gillespie proffered charges of misconduct relating to incidents in 2006 and 2007 against Plaintiff to the Defendant Pekin Police and Fire Commission, and seeking his termination. The Defendant Commission held a hearing on these charges between July 18 and 25, 2007. On November 21, 2007, the Defendant Commission issued its decision. Defendants Wallinger, Franks, and Short, acting as Commissioners for the Defendant Commission, imposed a 20-day suspension on Plaintiff, apparently as a result of these charges, but did not decide the issue of Plaintiff's mental fitness to return to work, and so Plaintiff could not return to work. Plaintiff appealed the Commission's decision, and the Illinois Appellate Court ruled in Plaintiff's favor on October 13, 2009, vacating the 20-day suspension.

On October 2, 2007, Defendant Gillespie ordered Plaintiff to undergo a psychological evaluation. Defendant Gillespie proffered a second set of charges against Plaintiff to the Defendant Commission on October 19, 2007, again alleging misconduct and seeking Plaintiff's termination. The Defendant Commission found in Plaintiff's favor on the second set of charges on February 6, 2008; this decision was affirmed on administrative review, and Defendant Gillespie did not appeal to the Appellate Court. On February 6, 2008, the Defendant Commission declined to allow Plaintiff to return to work. Defendant Gillespie rescinded his order of suspension on September 15, 2008, and allowed Plaintiff to return to work.

Plaintiff's Complaint alleges that, between March 24, 2006 and September 15, 2008, Defendants denied him his protected liberty and property interests in his employment without due process of law in violation of 42 U.S.C. § 1983, and that they conspired to so deprive him in violation of 42 U.S.C. § 1985. In addition, because Illinois law states that if charges against a police officer are not sustained the officer is to be reimbursed for all wages withheld,*fn1 and because Plaintiff alleges that he has never been reimbursed for the wages, Plaintiff appears to claim, under 42 U.S.C. § 1983, an unconstitutional deprivation of his protected property interest in reimbursement. He also appears to claim that Defendants conspired to commit this violation of Plaintiff's right to reimbursement in violation of 42 U.S.C. § 1985. Finally, Plaintiff appears to raise contractual and personal injury claims relating to his suspension from duty.


Defendants assert that Plaintiff's Complaint should be dismissed on two grounds: it is barred by the statute of limitations, and it otherwise fails to state a claim upon which relief can be granted.

I. Statute of Limitations

As noted above, ordinarily, the statute of limitations presents an affirmative defense that the plaintiff's complaint need not anticipate and defeat. However, where the complaint itself reveals that the statute of limitations bars the suit, dismissal prior to discovery is appropriate. Cancer Foundation, 559 F.3d at 674-75.

Defendant asserts that even the most recent of Plaintiff's claims alleges violations that occurred in September 2008, more than three years before his October 13, 2011 Complaint, and that some of the claims are based on events over five years prior to the initiation of this suit. Plaintiff counters with the argument that, because he was required to exhaust his administrative remedies before filing suit, his claim did not accrue until at least October 13, 2011.

First, the Court must determine what statute of limitations applies. Both § 1983 and § 1985 suits "borrow" a comparable statute of limitations from the law of the state in which the district court sits. See Wilson v. Geisen, 956 F.2d 738, 741 fn. 4 (7th Cir. 1992) (citations omitted). The parties dispute whether the Court should look to Illinois' one-year statute of limitations applicable to suits against local governmental entities, or its two-year statute of limitations applicable to other personal injury suits, for some of the claims. Defendants assert that since Plaintiff's claims are only against the individual Defendants in their "official capacities" and against two local governmental entities, the Illinois limitations period of one year for local governmental entity suits established by the Illinois Local Governmental and Governmental Employees Tort Immunity Act is applicable. (Doc. 10 at 4-5 (citing 745 ILCS 10/8-101)). Plaintiff claims that this is a "municipal tort immunity statute," which cannot constitute a defense to a civil rights suit. (Doc. 12 at 2 (quoting Weiss v. Village of Downers Grove, 588 N.E.2d 435, 469-70 (Ill. App. Ct. 1992)). In Palmer v. Board of Educ. Of Community Unit School Dist. 201-U, Will County, Ill., the Seventh Circuit cited Weiss in confirming that "[s]tatutes such as 745 ILCS 10/8-101 that establish short time limits for suing governmental bodies are especially poor candidates for absorption under § 1983. States are not free to endow themselves and their employees with special protection from § 1983 suits, which after all apply only to state actors." 46 F.3d 682, 684 (7th Cir. 1995) (citing Dixon v. Chrans, 986 F.2d 201 (7th Cir. 1993)). Therefore, the Court applies the Illinois' general two-year statute of limitations.

A. Claims relating to events before the Appellate Court's October 13, 2009 decision in Plaintiff's favor

Insofar as Plaintiff asserts claims to relief arising from Defendants' decisions to keep him off-duty, the most recent of which was in September 2008, Plaintiff's claims must be dismissed as barred by the statute of limitations, as his suit was not filed until October 2011, well beyond even the two-year statute of limitations. Plaintiff's Complaint and his Response to the Motion to Dismiss seem to show that he wishes to pursue claims against Defendants for "wrongfully depriv[ing him] of his right to work" prior to October 2009. (Doc. 12 at 6-7 (quoting McCoy v. Kamradt, 483 N.E.2d 544, 550 (Ill. App. Ct. 1985)); (Doc. 1 at 5). The Court takes these allegations as a due process claim or claims against Defendants for their decisions that imposed and sustained his suspension from work, as well as their actions relating to the charges of misconduct against him, all occurring "between March 24, 2006 and September 15, 2008." (Doc. 1 at 5).

Plaintiff asserts that this claim did not accrue until the Appellate Court's October 13, 2009 decision in his favor. The Court does not agree, and Plaintiff's cited authority does not support his argument on this point. If Defendants' actions or decisions unconstitutionally denied him of due process, that claim accrued as soon as Plaintiff knew of them; Plaintiff does not allege any delay in his learning of the decisions. See Wilson, 956 F.2d at 740 (citing Delaware State College v. Ricks, 449 U.S. 250 (1980); Barrett v. United States, 689 F.2d 324 (2d Cir. 1982); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.1971)) ("Civil rights claims.accrue when the plaintiff knows or should know that his or her constitutional rights have been violated."). If Defendants were indeed violating the constitution by depriving him of due process, or by conspiring to do so, Plaintiff did not need the Appellate Court's decision to show this. Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971) ("reversal is not an essential element of his § 1983 cause of action and accrual of that cause of action was not.delayed" until reversal on appeal).

Plaintiff cites to McCoy v. Kamradt, which holds that if an employees' suspension from work is reversed by the Board of Police and Fire Commissioners, it has thus been determined that he was "wrongfully deprived of the right to work" and is therefore due backpay under 65 ILCS 5/10-2.1-17. However, the McCoy court did not indicate, as Plaintiff argues, that a § 1983 claim for denial of due process resulting from inappropriate charges of misconduct is dependent on the Appellate Court's reversal of the charges.*fn2 Id. If Defendants pursued or sustained false charges against Plaintiff, or denied him due process in suspending him from work, those actions (assuming they were unconstitutional) were unconstitutional when they occurred. Insofar as Plaintiff alleges that Defendants violated or conspired to violate his due process rights "between March 26, 2006 and September 15, 2008," those claims accrued when he knew or should have known of his injury, and so they are facially time-barred.

In some cases, certain circumstances can toll the statute of limitations for a period after the accrual of a claim. The parties focus on the question of whether a § 1983 plaintiff is required to exhaust his administrative remedies prior to filing suit.*fn3 In Patsy v. Board of Regents of State of Florida, the Supreme Court held that there is no requirement of exhaustion prior to filing a § 1983 suit. 457 U.S. 496, 500 (1982). The Supreme Court noted that if such a requirement were imposed, and if the general rule that an exhaustion requirement tolls the statute of limitations were not lifted, § 1983 relief would be unavailable in most cases. Id. at 514 fn. 17. The Supreme Court was clear that there is no exhaustion requirement under § 1983. The crucial issue here, though, is whether time spent exhausting administrative remedies tolls the statute of limitations, if such exhaustion is not mandatory, and neither party directly addresses it. The fact that exhaustion is not required does not necessarily eliminate the question of whether, where there are administrative remedies available, a plaintiff's time to file suit is tolled while he attempts to obtain relief through the administrative process.

In § 1983 (and § 1985) suits, state law provides both the applicable statute of limitations and any tolling rules, so long as they are compatible with federal law. Hondo, Inc. v. Sterling, 21 F.3d 775, (7th Cir. 1994) (citing Board of Regents v. Tomanio, 446 U.S. 478, 484--86 (1980)); Wilson, 956 F.2d at 741 fn. 4 ("The same statute of limitations applies to claims under § 1983 and § 1985(3)."). Plaintiff does not cite to any rule of Illinois law that requires tolling of the statute of limitations while non-mandatory administrative remedies are exhausted, and the Court has found no such rule. In addition, the Court finds no reason to assume that Illinois' lack of such a tolling requirement conflicts with federal law, as § 1983 does not itself require exhaustion. Coleman v. O'Grady, 803 F.Supp. 226, 228-29 (N.D. Ill. 1992) (citing Board of Regents v. Tomanio, 446 U.S. 478 (1980)) (district court's opinion adopted on appeal, 19 F.3d 21 (Table) (7th Cir. 1994)). As the Northern District of Illinois observed on this issue, "[t]he plaintiff's own choice to pursue his claims by other means cannot act to toll the statute of limitations." Watkins v. Brandt, No. 94 C 7452, 1996 WL 450835, *4 (N.D. Ill. Aug. 6, 1996). There is no indication that tolling is required while a plaintiff pursues administrative remedies under federal or Illinois law, and so the Court must dismiss as untimely any portion of Plaintiff's suit based on Defendants' actions or decisions prior to the Illinois Appellate Court's October 2009 decision.

B. Defendants' alleged refusal to reimburse Plaintiff for wages lost following the Appellate Court's October 13, 2009 decision in his favor

Plaintiff's other apparent claim is that Defendants' failed to reimburse him his lost wages following the Appellate Court's October 13, 2009 finding in his favor.*fn4

The Court finds that this claim would not be time-barred, though, as discussed below, the Court questions whether it states a claim under the applicable statute. If the Appellate Court had determined that Defendants' decisions were correct, he would have had no arguable claim for reimbursement, as the charges would have been "sustained" under 65 ILCS 5/10-2.1-17. Plaintiff's statutory entitlement to reimbursement was dependent on the Commission's decisions not being "sustained." Therefore, Plaintiff did not know until at least October 13, 2009 that he may have been entitled to reimbursement or that Defendants would refuse to pay it, because, until that date, he was not so entitled and they had not yet refused.*fn5 The crux of this claim is that Defendants refused to reimburse Plaintiff for his lost wages under 65 ILCS 5/10-2.1-17, and that this refusal constituted a deprivation of a protected property interest in reimbursement without due process of law. On the facts alleged by the Complaint, this claim could not accrue until sometime after October 13, 2009, when Plaintiff asserts that Defendants became obligated to reimburse Plaintiff, and so appears to be timely.

II. Whether the remaining claims state a claim upon which relief can be granted The second part of Defendants' Motion to Dismiss argues that, even if Plaintiff's suit is not barred by the statute of limitations, it fails to state a claim upon which relief can be granted and should be dismissed under Federal Rule of Civil Procedure 12(b)(6). As discussed above, the only potentially timely claims of Plaintiff's are the claims that Defendants, after October 13, 2009, denied him of due process in depriving him of his property interest in reimbursement for the wages lost while he was suspended, and that they acted pursuant to a conspiracy to so deprive him.

A. § 1983 Due Process

In order to prevail on a due process claim under § 1983, a plaintiff must show both that he had a protected entitlement, and that he did not receive "due process" when he was deprived of that entitlement. Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007) (citing Kiddy-Brown v. Blagojevich, 408 F.3d 346, 360 (7th Cir. 2005)). Plaintiff asserts that he had an entitlement to reimbursement under Illinois law, and his Complaint seems to indicate that Defendants deprived him of this entitlement without any process at all.

As noted above, 65 ILCS 5/10-2.1-17 provides that "If the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages withheld, if any." In his remaining § 1985 claim, Plaintiff asserts that Defendants have failed to reimburse him his lost wages following the October 2009 reversal of Chief Gillespie's first set of charges by the Appellate Court.*fn6 Defendants point to the italicized language quoted above, which appears to require reimbursement only if the Board of Fire and Police Commissioners itself makes the determination that the charges are not sustained. Here, it was the Appellate Court that made this determination, following the Commissioners' decision that the charges were sustained. On a plain reading of the statute, then, it appears that Defendants are correct -- the Commissioners did not reject the charges, and so Plaintiff is not entitled to reimbursement. Even if a reviewing court reverses the Commissioners' decision, it was not the Commissioners who "determined" that the charges were not sustained, and so the terms of the statute would not be met.

This reading is supported by the characterization of the statute by the Northern District of Illinois in DeMauro v. Loren-Maltese, writing that "a board possesses authority to award back pay provided it determines that the charges brought against an officer are not sustained." 98 c 8318, 2001 WL 936113, *6 (N.D. Ill. Aug. 17, 2001) (citing People ex rel. Cotter v. Conlisk, 308 N.E.2d 1, 2 (Ill.App. Ct. 1974)). Under this reading, 65 ILCS 5/10-2.1-17 is only a grant of authority to the Board. The DeMauro court held that because of the statute's explicit requirement that the Board "determine" that the charges were unsustained, charges that were withdrawn prior to any determination did not trigger the right to reimbursement, though the plaintiff had argued that withdrawal of the charges was functionally equivalent to finding that they were unsustained. Id. (citing, inter alia, McCoy, 483 N.E.2d at 550). The DeMauro court applied the literal text of the statute, though the result appears to conflict with the apparent goal of reimbursing employees who are placed on unpaid suspension without cause.

The Court notes the seeming unfairness of this reading: if the state provides a mechanism for judicial review of Commissioners' decisions, but reimbursement is not available when the Commissioners' erroneous decisions are overturned on appeal (being only available when the Commissioners themselves determine that the charges are unsustained), then employees who are wrongfully suspended without pay or discharged may lose an important remedy. On the other hand, it seems that a reviewing court would have the power, in appropriate situations, to issue an order that would make whole the suspended employee. See Savaglio v. Board of Fire and Police Com'rs of Village of Oak Brook, 465 N.E.2d 1065, 1070-71 (Ill. App. Ct. 1984) (quoting Kloss v. Board of Fire & Police Commissioners, 438 N.E.2d 685, (Ill. App. Ct. 1982)) (holding that reviewing courts do not have the authority to order reinstatement, but implying that they could order reimbursement if sufficient evidence of salary, etc., is presented). Moreover, the Administrative Review Act allows the reviewing court to remand the matter to the Board for further consideration. 735 ILCS 5/3-111.

Plaintiff cites no cases and makes no argument to support the idea that the Court should disregard the plain language of the statute and find that any reversal of the charges, whether by the Board or a reviewing court, triggers reimbursement.*fn7

On the other hand, Defendants cite no cases holding that the statute should be read as strictly as they suggest. The Court has been unable to find any cases that are directly on-point with this issue, and so will give the parties an opportunity to brief this matter in more depth before issuing a definitive ruling on this portion of Plaintiff's suit.

B. § 1985 Conspiracy

Plaintiff also alleges under 42 U.S.C. § 1985 that Defendants conspired to deprive him of his due process rights. If a plaintiff alleges a conspiracy to violate the constitution under § 1985, "it must be alleged and proved the purpose of the act complained of was to purposely discriminate between persons or classes of persons."*fn8 Egan v. City of Aurora, 291 F.2d 706, 708 (7th Cir. 1961) (citing Snowden v. Hughes, 321 U.S. 1 (1944)); see also Parker, 730 F.Supp. at 120 ("In order to state a claim for relief under Section 1985(3), one must allege the following: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance; and (4a) an injury to his person or his property, or (4b) a deprivation of any right or privilege of a citizen of the United States.").

Plaintiff does not allege or allude to any facts suggesting that Defendants had the purpose to deprive him of equal protection of the laws, and so has not stated a claim under § 1985. Parker, 730 F.Supp. at 121 (citing Brosten v. Scheeler, 360 F.Supp. 608, 614 (N.D. Ill. 1973); Collins v. Bensinger, 374 F.Supp. 273, 277 (N.D. Ill. 1974)) ("[I]n enacting Section 1985(3), Congress did not seek to prohibit alleged conspiracies to deny due process."). See Snowden, 321 U.S. at 7 ("But not every denial of a right conferred by state law involves a denial of the equal protection of the laws, even though the denial of the right to one person may operate to confer it on another. .The unlawful administration by state officers of a state statute fair on its not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination."). Plaintiff's § 1985 claim must therefore be dismissed.


For the reasons stated above, Defendants' Motion to Dismiss (Doc. 9) is GRANTED IN PART, and their Motion for Leave to File a Reply (Doc. 13) is DENIED. All of Plaintiff's § 1983 claims concerning actions prior to October 13, 2009 are DISMISSED WITH PREJUDICE, and Plaintiff's § 1985 claims are DISMISSED WITH PREJUDICE. The parties are granted leave to file supplemental briefs of no more than five pages on the issue of whether Plaintiff had a right to reimbursement under 65 ILCS 5/10-2.1-17 following the Appellate Court's October 13, 2009 reversal of the Commissioners' decision on the first set of charges; and if he does, how such entitlement is to be implemented. Such briefs are due within 21 days of the date of this Order.


Joe B. McDade

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