United States District Court, N.D. Illinois, Eastern Division
DR. DENEAN ADAMS, Plaintiff,
BOARD OF EDUCATION HARVEY SCHOOL DISTRICT 152, GLORIA JOHNSON, in her individual capacity, BETTY JOHNSON, in her individual capacity, DR. KISHA MCCASKILL, in her individual capacity, JANET ROGERS, in her individual capacity, TYRONE ROGERS, in his individual capacity, LINDA HAWKINS, in her individual capacity, FELICIA JOHNSON, in her individual capacity, CITY OF HARVEY, DENARD EAVES, in his individual capacity, and DET. R. WRIGHT, in his individual capacity, Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge
Denean Adams, filed a three-count Amended Complaint, alleging
in Count III retaliation by the City of Harvey and two of its
police officers, Denard Eaves and R. Wright (“the
Harvey defendants”) . The Harvey defendants move to
dismiss Count III for failure to state a claim. For the
reasons stated herein, this Court grants the motion and
dismisses Count III with prejudice.
Court initially dismissed with prejudice the claims now
presented in Count III. After being persuaded on a motion for
reconsideration to allow Adams to amend her complaint, Adams
filed the Amended Complaint under review.
asserts in Count III that the Harvey defendants retaliated
against her in violation of her First Amendment Free Speech
rights by refusing to arrest or pursue criminal charges
against defendant Tyrone Rogers when she complained that he
had been verbally abusive in a telephone call. Adams alleges
that defendant Denard Eaves, as acting Chief of the Harvey
Police Department, and Detective Wright used their positions
in the Harvey police department to retaliate against Adams by
refusing to allow her to pursue criminal charges against
Rogers. (Dkt. 41 at ¶ 53). Adams further alleges that
Rogers was a close ally of the Mayor of Harvey, Eric Kellogg.
(Id. at ¶ 54). The complaint also alleges
“on information and belief” that Kellogg told
Wright and Eaves that “they could not arrest Rogers
even though they had probable cause to do so and to make sure
that no criminal charges were filed.” (Id. at
¶ 63). The complaint alleges that both Wright and Eaves
acted at Kellogg's direction and used their position to
chill her free speech rights. (Id. at ¶¶
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual allegations to state a claim for relief that is
plausible on its face and raising the right to relief above
speculation. Ashcroft v. Iqbal, 556 U.S. 62, 678
(2009). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements” are
insufficient to withstand a motion to dismiss.
Iqbal, 556 U.S. at 678. When reviewing a motion to
dismiss, the Court must accept all well-pleaded factual
allegations as true and draw all reasonable inferences in the
plaintiff's favor. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Pisciota v. Old Nat. Bancorp, 449
F.3d 629, 633 (7th Cir. 2007).
Harvey defendants move to dismiss Count III, arguing that the
Amended Complaint fails to contain sufficient factual support
to allege a constitutional violation or retaliation since the
Harvey defendants were under no obligation to arrest Rogers
and did not have the authority to file charges since that is
the exclusive domain of the prosecutor. They further argue
that the Court should dismiss Adams' attempt to plead
municipal liability because police officers do not have final
policymaking authority. As discussed below, this Court finds
that Adams fails to cure the defects in the claim that this
Court identified when dismissing the prior complaint.
order to state a claim based on a violation of her free
speech rights, Adams must allege “(1) that speech she
engaged in was constitutionally protected under the
circumstances, Connick v. Myers, 461 U.S. 138, 75
L.Ed.2d 708, 103 S.Ct. 1684 (1983); and (2) that defendants
retaliated against her because of that speech. Mt.
Healthy City School Dist. v. Doyle, 429 U.S. 274, 287,
50 L.Ed.2d 471, 97 S.Ct. 568 (1977).” Barkoo v.
Melby, 901 F.2d 613, 617 (7th Cir. 1990). Even if this
Court presumes that the complaint adequately alleges the
first prong, the Court finds that the complaint still fails
to allege sufficient facts to establish the second prong to
show that Eaves and Wright retaliated against her because of
that speech. See Santana v. Cook Cty. Bd. of Review,
679 F.3d 614, 622 (7th Cir. 2012). Adams alleges that Eaves
and Wright (and the City of Harvey) used their authority as
police to stifle her free speech by refusing to pursue
prosecution of her report of criminal activity at the
direction of Eric Kellogg, the mayor of the City of Harvey.
This allegation is no less speculative than the previous bare
assertion that Eaves and Wright would protect Rogers because
he is an ally of the mayor. As this Court stated in prior
orders addressing this issue, police officers are not
required to pursue prosecution of every citizen's report
of criminal activity and therefore Adams has the burden of
alleging facts that make it plausible that her First
Amendment activity was “at least a motivating
factor” in Eaves and Wright's decision not to
arrest Rogers. Notably, Adams does not name Kellogg as a
defendant nor does she allege a conspiracy to deprive Adams
of her constitutional rights.
Monell claim is also too tenuous to survive
dismissal. To state a claim against the City of Harvey, Adams
must allege that Eaves acted pursuant to a municipal custom,
policy, or practice. Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 691 (1978); Wragg v.
Vill. of Thornton, 604 F.3d 464, 467 (7th Cir. 2010).
“To establish an official policy or custom, a plaintiff
must show that his constitutional injury was caused by (1)
the enforcement of an express policy of the [city], (2) a
widespread practice that is so permanent and well settled as
to constitute a custom or usage with the force of law, or (3)
a person with final policymaking authority.”
Wragg, 604 F.3d at 467. Here, Adams makes numerous
general allegations regarding police corruption and
misconduct in the City of Harvey, referring to state and
federal investigations into claims of police brutality.
However, the allegation that Eaves blocked Adams from filing
a criminal complaint about a verbal remark by a fellow member
of the school board remains simply a conclusion based on a
single incident where a police officer allegedly refused to
pursue a report of criminal activity in order to chill the
individual's Free Speech. See Thomas v. Cook County
Sheriffs Dep't, 604 F.3d 293, 303 (7th Cir. 2009)
(holding that a single incident of misconduct is insufficient
to sustain Monell liability). Accordingly, this
Court finds that Adams fails to state a claim in Count III
for First Amendment retaliation.
on the foregoing, this Court grants the Harvey
defendants' Motion to Dismiss Count III of the Amended