United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
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. For the reasons below, I grant the
defendants' motions and remand the remaining claim for
administrative review to the Circuit Court of Cook
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.
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
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).
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.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
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.
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.
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.
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.
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 ...