United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
RONALD A. GUZMN, District Judge.
For the reasons stated below, all of the defendants' motions to dismiss [28, 31, 41, 46] are granted. Because Gross's claims against the state agencies and state officials are barred by the Eleventh Amendment, the claims against IDES, IDOL, and Attorney General Madigan are dismissed with prejudice. Moreover, because Gross does not indicate how he can replead to cure the deficiency with respect to the purported procedural due process violation, the § 1983 claims against Maduff and the CTA based on that alleged violation are dismissed with prejudice. To the extent that Gross attempted to allege a sex harassment claim under Title VII, it is dismissed without prejudice for failure to exhaust. Gross has 21 days to file an amended complaint, to the extent he can do so in compliance with Federal Rule of Civil Procedure 11, with respect to any § 1983 sex harassment claim only. Gross's failure to file a timely amended complaint will result in dismissal of the case.
Brian Gross, proceeding pro se, has sued the Chicago Transit Authority ("CTA"), the Illinois Department of Labor ("IDOL"), the Illinois Department of Employment Security ("IDES"), Attorney General Lisa Madigan and the law firm of Maduff and Maduff, LLC ("Maduff"). All Defendants move to dismiss the claims against them. Despite being given the opportunity to respond and the Court extending the briefing schedule, Gross failed to respond to any of the motions. Accordingly, the Court will rule without the benefit of a response by Gross. For the reasons stated herein, the motions are granted.
From what the Court can ascertain from Gross's amended civil rights complaint and attachments, he was a bus driver with the CTA for approximately three years but was discharged sometime after January 11, 2012 for being absent without notice. (Am. Compl., Dkt. # 10, PageID ## 71-72.) Gross apparently sought unemployment benefits from IDES after his discharge but was denied. (Id. ) On appeal of that denial, Gross contended that he failed to appear for work because he feared for his safety after being allegedly stalked by a co-worker. (Id. ) The Board of Review for IDES denied Gross's appeal of the denial of unemployment benefits because the evidence did not show that he was unable to communicate with the CTA to alert his supervisor of his absences and the reason for them. (Id. )
In his statement of the claim section of the amended complaint, Gross alleges that he was sexually, physically and mentally harassed while he was a bus driver at the CTA and his manager allowed it because he was having sex with the woman who was harassing Gross. (Am. Compl., Dkt. # 10, at 4.) Gross further alleges that his manager then fired him and the manager acknowledged "under oath" that he "did nothing" despite Gross's complaints of harassment. (Id. ) According to Gross, the CTA precluded him from "presenting [his] case by unethical collusion of attys and judges to prevent [him] [his] day in court." (Id. )
"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 12(b)(6), a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In other words, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl., 550 U.S. at 570). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true, " Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draw "reasonable inferences in favor of the plaintiffs." Teamsters Local Union No. 705 v. Burlington N. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014).
Defendant Maduff. The only reference in Gross's complaint to Maduff is the statement that he "conspired with CTA to lose [Gross's] case." (Am. Compl., Dkt. # 10, at 2.) A private party may be held liable under § 1983 under a conspiracy theory only if a plaintiff alleges that it "engag[ed] in joint action with state officials to deprive a person of a federally protected right." Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989). Conspiracy is not an independent basis of liability in § 1983 actions, see Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000), but is dependent on the underlying constitutional injury. See Drager v. Vill. of Bellwood, 969 F.Supp.2d 971, 984 (N.D. Ill. 2013). Gross's amended complaint appears to allege that he did not receive a fair hearing in his VESSA case. However, Gross fails to state a claim for a constitutional violation. As noted by the Seventh Circuit:
A procedural due process claim requires a two-fold analysis. First, we must determine whether the plaintiff was deprived of a protected interest; second, we must determine what process is due. In evaluating what process satisfies the Due Process Clause, one of our sister circuits has explained, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees. If the plaintiff alleges that the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing. Under those circumstances, the availability of post-deprivation procedures will not, ipso facto, satisfy due process.
By contrast, when the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides a meaningful post-deprivation remedy. Thus, we have stated that, for a plaintiff alleging a procedural due process claim based on "random and unauthorized" conduct of a state actor, the plaintiff must either avail herself of state post-deprivation remedies or demonstrate that the available remedies are inadequate. If the plaintiff has not availed herself of state remedies, she cannot state a valid procedural due process objection if she does not include a challenge to the fundamental fairness of the state procedures.
Leavell v. Ill. Dep't Natural Res., 600 F.3d 798, 804-05 (7th Cir. 2010) (internal citations, quotation marks and alterations omitted).
Here, Gross does not challenge established state procedures; rather, he alleges random and unauthorized conduct by the CTA or IDOL. Accordingly, in order to state a due process claim, Gross must have availed himself of the state post-deprivation remedies provided, which allowed him to seek judicial review of IDOL's decision to adopt the administrative law judge's recommendation to dismiss his VESSA claim for want of prosecution. (IDOL's Mem. Support Mot. Dismiss, Dkt. # 42-1, at PageID # 237); see 820 Ill. Comp. Stat. 180/35 ("An order issued by the Director under this Section shall be final and subject to judicial review under the Administrative Review Law."). Gross does not allege that he sought judicial review of the dismissal or that such review was inadequate. As a result, Gross has not stated a procedural due process violation and therefore has failed to state a claim for conspiracy under § 1983 against Maduff.
Defendants IDES, IDOL, and Attorney General Madigan. Gross alleges that IDOL "refused to hear [his] complaint, " that IDES "refused unemployment benefits" and that Attorney General Madigan "conspired with CTA and IDES." To the extent that Plaintiff is seeking damages against IDES, Attorney General Madigan, and IDOL, these claims are barred by the Eleventh Amendment. Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370-71 (7th Cir. 2010) (Eleventh Amendment generally "bars actions in federal court against a state, state agencies, or state officials acting in their official capacities" unless the state waives immunity, Congress abrogates it or the claim falls under the exception articulated by the Supreme Court in Ex Parte Young, 209 U.S. 123 (1908)). Under Ex Parte Young, a plaintiff may file "suit  against state officials seeking prospective equitable relief for ongoing violations of federal law...." Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997). But Plaintiff does not seek prospective relief for ongoing violations, and merely asks that "those who participated... pay." (Am. Compl., Dkt. # 10 at 6.) Therefore, Plaintiff's claims against IDES, Attorney General Madigan and IDOL are barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 27 (1991) ("State officers sued for damages in their official capacity are not persons' for purposes of the [§ 1983] suit because they assume the identity of the government that employs them.").
To the extent that Gross asks this Court to review the circuit court's decision affirming the denial of his unemployment benefits, such review is barred by the Rooker-Feldman doctrine, which provides that a federal district court has no power to hear "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court ...