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Schmalz v. Villlage of North Riverside

United States District Court, N.D. Illinois, Eastern Division

April 8, 2015

VILLLAGE OF NORTH RIVERSIDE; HUGH HERMANEK, in his individual and official capacity; KEN KROCHMAL, in his individual and official capacity; TOM CORGIAT, in his individual and official capacity; RANDY CZAJKA, in his individual and official capacity; H. BOB DEMOPOULOS, in his individual and official capacity; ROCCO DESANTIS, in his individual and official capacity; VERA WILT, in her individual and official capacity; and LANE NEIMANN, in his individual and official capacity, Defendants.


JOHN W. DARRAH, District Judge.

Plaintiff Frank Schmalz has brought this action pursuant to 42 U.S.C. § 1983, asserting claims for: violations of his First Amendment rights against all Defendants (Counts I and II); mandamus against all Defendants (Count III); and a state-law claim for defamation per se against Defendant Ken Krochmal (Count IV). Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants have moved to dismiss Counts I, II, and III of the First Amended Complaint or, alternatively, to dismiss Rocco Desantis, H. Bob Demopoulos, Tom Corgiat, and Randy Czajka as Defendants and to dismiss Ken Krochmal from Counts I, II and III. Schmalz has moved to strike Defendants' Motion.


The following facts are drawn from the Complaint and are accepted as true for purposes of a motion to dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Schmalz is a police sergeant employed by the Village of North Riverside, Illinois (the "Village"). (Compl. ¶ 16.) He is president of the local police union, the Fraternal Order of Police, Lodge 110 ("FOP"), and was the FOP chief negotiator with the Village. ( Id. ¶ 4.) He also served in a supervisorY capacity on a highly coveted task force, known as West Suburban Enhanced Drug & Gang Enforcement ("WEDGE"). Schmalz has named the following as Defendants: the Village; Hugh Hermanek (former trustee and current mayor); Ken Krochmal (former mayor); Lane Neimann (current police chief); Rocco Desantis (former trustee); Tom Corgiat (former trustee); Randy Czajka (former trustee); H. Bob Demopoulos (current trustee); and Vera Wilt (current trustee). ( Id. ¶¶ 5-13.)

Schmalz's claims arise from his union activity and endorsement of former trustee Desantis in Desantis's unsuccessful run for Village mayor in April 2013. Specifically, at FOP meetings in October 2012 and January 2013, Schmalz advocated that the police union endorse Desantis and his party, Transparency and Accountability in Politics ("TAP"). ( Id. ¶ 24.) The FOP members voted to support the TAP party and Desantis. Schmalz publicly campaigned in support of the TAP party until the elections were held on April 9, 2013. ( Id. ¶¶ 25-26.)

On January 21, 2013, Krochmal, then mayor of the Village, publicly criticized the Village police officers during a monthly Village Board meeting. On or about February 2, 2013, Schmalz met with Krochmal to discuss his remarks about the police. Krochmal refused to discuss his remarks and, instead, insisted on discussing Schmalz's and the FOP's endorsement of the TAP party candidates. ( Id. ¶¶ 28-31.) At the next Village Board meeting on or about February 4, 2013, Schmalz read a letter to the Board members to protest Krochmal's remarks at the January Board meeting. ( Id. ¶ 33.) At that same Board meeting, Trustee Corgiat stated that any police or fire personnel who actively campaigned for candidates other than the incumbent Village Interest Party ("VIP") should be investigated and punished, up to and including termination. ( Id. ¶ 34.) At the next Village Board meeting on March 4, 2013, Krochmal told Desantis that police officers could "go to hell for not endorsing the VIP Party" and that Schmalz would pay for reading the letter. ( Id. ¶ 35.)

On the day of the Village elections, April 9, 2013, Schmalz greeted voters at the Village Commons polling place and encouraged them to vote for Desantis and the TAP party. Krochmal also was there and misinformed voters that the FOP union was supporting VIP candidates, a statement that Schmalz repeatedly corrected. Krochmal advanced on Schmalz, called him expletives, and threatened Schmalz with the words "You think I am going to forget you reading that letter at the Board Meeting. You wait and see what I have planned for you, asshole." ( Id. ¶¶ 36-41.)

The VIP party won the election. On or about April 13, 2013, the Village police chief was stripped of his powers, and Niemann (currently police chief) assumed the position of acting police chief. ( Id. ¶¶ 44-45.) A vacant lieutenant position was available at that time. ( Id. ¶ 47.) Schmalz had passed the lieutenants' promotional exam in August 2012 and was the only eligible candidate for promotion on the lieutenant promotional list, but was not promoted. ( Id. ¶ 22.) On or about April 22, 2013, Niemann removed Schmalz from the WEDGE taskforce and told him that he would "never be promoted" to being a lieutenant. ( Id. ¶¶ 48-49.) Niemann was officially appointed police chief on May 6, 2013. ( Id. ¶ 50.)[1]

On June 11, 2013, another vacant lieutenant position opened after the death of a commander. ( Id. ¶ 56.) On June 18, 2013, Niemann offered the position of commander to another police officer, who was not on the lieutenant promotional list. Niemann told Schmalz that Schmalz should be happy being a detective because "that's all you'll ever be" and that if Desantis had won the election, Schmalz would have been chief. ( Id. ¶¶ 57-62.) Schmalz also met with the new mayor, Hermanek, who stated that he also had heard that Schmalz would be chief if Desantis had won. ( Id. ¶ 64.)

On June 28, 2013, Schmalz was assigned to desk duty, despite having been cleared by his doctor for full duty after a work-related injury. ( Id. ¶¶ 68-69.) Shortly thereafter, Niemann sent Schmalz home, saying that Schmalz was too much of a liability. ( Id. ¶ 71.)

Schmalz filed this action on November 7, 2013. On August 21, 2014, this Court granted Defendants' motion to dismiss and granted Schmalz leave to amend his claims. On September 19, 2014, Schmalz filed his First Amended Complaint, dropping some of the Defendants named in the original Complaint.


To properly assert a claim in a complaint under Federal Rule of Civil Procedure 8(a)(2), a plaintiff must present "a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for the relief sought." Fed.R.Civ.P. 8(a)(2). The plaintiff must describe the claim in sufficient detail to "give the defendant 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)).

Rule 12(b)(6) permits a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In order to withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Upon a Rule 12(b)(6) motion, the court construes the complaint ...

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