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Curtis Rempson v. Village of Dolton

August 23, 2012


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff Curtis Rempson filed a two-count complaint [1] against Defendants Village of Dolton, Board of Police Commissioners, Gail Towers, Ronnie Lewis, James T. Jefferson, Garry Lambert, Willie L. Lowe, Samalla H. McClellan, and Eva M. Nicholas (collectively, "Defendants") alleging a violation of his due process rights under 42 U.S.C. § 1983 (Count I), and defamation (Count II). Defendant Village of Dolton filed a motion to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). [25]. For the reasons stated below, Defendant's motion [25] is granted.*fn1

I. Background*fn2

In January, 2005, Plaintiff Rempson became a police officer in Dolton, Illinois. Prior to that time, he had passed all of the requisite examinations for the position. On March 28, 2008, Plaintiff was promoted to the commissioned rank of sergeant of the Dolton Police Department. Prior to that date, Plaintiff had passed a written and oral promotion examination held by Defendant for the position of sergeant. Accordingly to Plaintiff, at all relevant times he complied with all regulations and performed all duties as a sergeant of the Dolton Police.

On August 11, 2010 Plaintiff was notified by Defendant Ronnie Lewis, Mayor of the Village of Dolton, that his promotion to sergeant was nullified and that he was to be reclassified as a Dolton police officer, effective August 14, 2010. When Plaintiff was demoted from sergeant to officer, his pay was reduced. Defendants did not give notice of any charges against Plaintiff and did not grant him a hearing before the Village of Dolton board of Fire and Police Commissioners prior to demoting him from sergeant to officer.

Plaintiff then filed the instant complaint alleging (1) that when Defendants demoted him from sergeant to officer without giving him notice of the charges or granting him a hearing, Defendants violated his due process rights pursuant to 42 U.S.C. § 1983 and (2) a claim of defamation.*fn3

II. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

A. Procedural Due Process

In Count I, Plaintiff asserts a § 1983 claim for violation of his procedural due process rights.*fn4 Plaintiff contends that he had a constitutionally-protected property and/or liberty interest in his continued employment in the position of sergeant of police. He further maintains that he was deprived of due process of law prior to the deprivation of his property and/or liberty interest. As set forth below, even read charitably, Plaintiff's complaint fails.

The Fourteenth Amendment imposes constraints on government actions which deprive an individual of "liberty" or "property" interests within the meaning of the Due Process Clause. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To assert a violation of the Due Process Clause, Plaintiff must be able to show that he had a "property interest" and that he was deprived of this interest without due process of law. See Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir. 2003) (citing Bishop v. Wood, 426 U.S. 341, 343 (1976)). Specifically, Plaintiff's due process claims turn upon whether he had a property right in his position as sergeant of police.

To demonstrate that he was deprived of a protected interest, Plaintiff "must first establish that he had a property interest * * * of the sort that the Constitution protects." Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996). Property interests are not created by the United States Constitution; "[r]ather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Moore v. Muncie Police and Fire Merit Com'n, 312 F.3d 322, 326 (7th Cir. 2002) (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). For example, in the context of fired public employee bringing a procedural due process claim against his employers, the Seventh Circuit recently stated that "[a] property interest in continued employment 'can be created in one of two ways, (1) by an independent source such as state law securing certain benefits; or (2) by a clearly implied promise of continued employment.'" Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010) (citing Phelan, 347 F.3d at 681). To support a due process claim in the context of public employment, the Seventh Circuit held that the plaintiff must have an "entitlement to continued employment," such as a collective-bargaining agreement. Palka, 623 F.3d at 452 (citing Lee v. County of Cook, 862 F.2d 139, 141 (7th Cir. 1988); Krieg v. Seybold, 481 F.3d 512, 519-20 (7th Cir. 2007)). Plaintiff bears the burden of proving that he had a property interest in his employment as police sergeant. See Krieg v. Seybold, 481 F.3d 512, 520 (7th Cir. 2007) (holding plaintiff bears the burden of showing that he had a property interest in his job arising out of a state statute, state or municipal regulations, or a contract with a public entity).

While the Court accepts all well-pleaded facts in the complaint as true, the Court need not accept as true conclusory statements of law or unsupported conclusions of fact. See Snodderly v. R. U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 896 (7th Cir. 2001). Simply claiming a property right in one's job without facts to support the naked conclusion is not enough to sufficiently plead a property interest. See Lee v. County of Cook, 862 F.2d 139, 141-42 (7th Cir. 1988) (holding that to assert a property interest a plaintiff must ...

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