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Cannici v. Village of Melrose Park

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

January 27, 2017

JOHN CANNICI, Plaintiff,
VILLAGE OF MELROSE PARK, ILLINOIS, BOARD OF FIRE AND POLICE COMMISSIONERS OF MELROSE PARK, ILLINOIS, MICHAEL CAPUTO, MARK RAUZI and PASQUALE ESPOSITO, Members of the Board of Fire and Police Commissioners of Melrose Park, RICHARD BELTRAME, Melrose Park Fire Chief, and RONALD SERPICO, Mayor of Melrose Park, individually and in their official capacities, Defendants.


          Elaine E. Bucklo

         Plaintiff John Cannici (“Cannici”) brings this suit alleging that his employment as a firefighter for the Village of Melrose Park (“the Village”) was improperly terminated for violating the Village's residency ordinance. In addition to the Village, Cannici has sued the Village's Board of Fire and Police Commissioners (“the Board”); individual Board members Michael Caputo, Mark Rauzi, and Pasquale Esposito (Caputo, Rauzi, and Esposito together, “the Board Members”); the Village's Fire Chief, Richard Beltrame (“Beltrame”); and the Village's Mayor, Ronald Serpico (“Serpico”). Cannici's complaint seeks review of his termination under Illinois' Administrative Review Act (“the Act”), 735 ILCS 5/3-101 et seq. (Count I). He also asserts claims under 42 U.S.C. § 1983, alleging violation of his right to due process (Count II) and to equal protection (Count III). Cannici originally filed suit in the Circuit Court of Cook County, Illinois. The defendants removed the case to this court and now have filed several separate motions to dismiss Counts II and III of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[1] For the reasons below, I grant the defendants' motions and remand the remaining claim for administrative review to the Circuit Court of Cook County.[2]


         In deciding a 12(b)(6) motion, I take all allegations in the complaint as true. See, e.g., Lavalais v. Village of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). Cannici's complaint alleges that he joined the Melrose Park Fire Department in 2000.

         In 2008, he and his wife purchased a second home in Orland Park. According to Cannici, they purchased the home so that their oldest child could attend school in Orland Park, thereby making it unnecessary for Cannici's parents, who provided daycare for the children, to commute between Orland Park and Melrose Park. Cannici's wife and children moved to the Orland Park home, but Cannici continued to live in the Melrose Park residence. The family spent time together on the weekends.

         This arrangement remained in place until 2013, when Cannici agreed to rent a portion of the Melrose Park home to a family experiencing financial hardship. Although the family occupied only part of the home, Cannici began staying at the Orland Park house with his wife and children. He insists, however, that he continued to treat the Melrose Park home as his residence (by, among other things, continuing to pay taxes on the home, keeping his personal property there, and receiving his mail there).

         In May 2016, Cannici was “summoned to appear at an interrogation concerning his residency.” Compl. ¶ 23. On learning of this, the family living in the Melrose Park home voluntarily moved out and Cannici moved back in. In June 2016, Fire Chief Beltrame filed a “Statement of Charges” alleging that Cannici had violated the Village's residency ordinance and requesting a hearing before the Board of Commissioners.[3]According to Cannici, prior to the hearing, the Board's counsel engaged in ex parte communications with the prosecuting attorney. Specifically, Cannici alleges that the Board's counsel notified the prosecuting attorney of a status hearing in the case without giving notice to Cannici's counsel. In addition, Cannici asserts that the Board's Counsel sent the prosecuting attorney case law addressing issues relevant to Cannici's case. When Cannici became aware of the communications, he filed a motion to disqualify the prosecuting attorney and to reappoint the Board's counsel. The motion was summarily denied.

         The hearing on the charges against Cannici was held before the Board on August 4, 2016. Cannici submitted a brief at the hearing, arguing that since his residency in the Village had previously been established, he was not required under Illinois law to maintain a physical presence in Melrose Park, so long as he had no intention of abandoning his residency. Cannici also testified at the hearing, explaining the circumstances surrounding his decision to rent his home, and stating that he never had any intention of abandoning his Melrose Park residency. Neither party presented any other evidence at the hearing.

         On August 24, 2016, the Board issued an order on the charges against Cannici. After reviewing the evidence in the case, the order concluded that Cannici had violated the residency ordinance and that his employment would be terminated. Cannici maintains that the Board's decision mischaracterized his testimony, disregarded the evidence, and misapplied the law. In addition, he contends that although several other Melrose Park firefighters had living arrangements similar to his own, only he was charged with violating the residency ordinance.


         “A motion to dismiss under Rule 12(b)(6) does not test the merits of a claim; rather, it tests the sufficiency of the complaint.” Galvin v. Illinois Republican Party, 130 F.Supp.3d 1187, 1190 (N.D. Ill. 2015) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)). I consider the defendants' arguments for dismissal of Cannici's § 1983 due process and equal protection claims in turn.

         A. Due Process

         To state a procedural due process claim under § 1983, “a plaintiff must allege (1) deprivation of a protected interest, and (2) insufficient procedural protections surrounding that deprivation.” Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). The defendants do not dispute that Cannici has a protected interest in his employment. At issue is only the sufficiency of the procedural protections surrounding his termination.

         Procedural due process claims are of two types: “(a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.” Leavell v. Illinois Dep't of Nat. Res., 600 F.3d 798, 804 (7th Cir. 2010) (quotation marks omitted). Cannici does not allege that his due process rights were violated by an established state procedure. Rather, he claims that the defendants failed to implement or abide by the procedures in a fair manner. Hence, Cannici's due process claim is based on the “random and unauthorized ...

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