United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Wood, United States District Judge.
Richard Gonzalez is a police officer employed by Defendant
City of Chicago. Gonzalez alleges that he was unlawfully
suspended from his job for 30-days following an inadequate
complaint and review process. Gonzalez's suspension was
eventually reversed by the Circuit Court of Cook County.
However, Gonzalez alleges that after the Circuit Court's
decision, he was subjected to a campaign of retaliation
carried out by various City of Chicago officials, police
department superintendents and officers, and the Fraternal
Order of Police, Chicago Lodge No. 7 (“FOP”). As
a result, Gonzalez has filed this lawsuit, which includes 11
counts and 16 Defendants. Presently before the Court are four
separate motions to dismiss Gonzalez's amended complaint
filed by the various Defendants pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Dkt. Nos. 20, 25, 32, 39.)
Following the briefing of the four motions, Gonzalez filed a
motion for leave to amend his complaint and add Defendants.
(Dkt. No. 73.) For the reasons explained below, the Court
grants the motions to dismiss but also grants Gonzalez's
motion to amend his complaint.
origins of this case go back almost a decade. At that time,
and at all times pertinent to the amended complaint, Gonzalez
was a police officer employed by the City of Chicago. (Am.
Compl. ¶ 7, Dkt. No. 6.) Gonzalez's problems began
on December 21, 2008, when another Chicago police officer
accidentally discharged mace at a restaurant. (Id.
¶ 27.) According to Gonzalez, he was in the bathroom of
the restaurant at the time the mace was discharged.
(Id.) Nonetheless, the City of Chicago accused
Gonzalez of discharging the mace and initiated a complaint
log against him related to the incident. (Id. ¶
Thereafter, the Independent Police Review Authority
(“IPRA”) assumed responsibility for investigating
the matter. (Id. ¶ 29.)
years later, on March 11, 2011, IPRA recommended that
Gonzalez receive a 30-day suspension based on its
investigation of the complaint. (Id. ¶ 29.)
Following the close of IPRA's investigation, the City of
Chicago Police Board (“Police Board”) took over
the matter. On November 21, 2013, the Police Board conducted
a closed hearing regarding the mace incident. (Id.
¶ 30.) Eventually, the Police Board issued a
“Findings and Decisions” document, signed by
Defendant Max Caproni, Executive Director of the Police
Board, sustaining the 30-day suspension and all alleged rule
violations by Gonzalez. (Id. ¶ 30.) The Police
Board published its findings on the City of Chicago website.
(Id. ¶ 31.) Then, on December 18, 2013, an
online news website, DNAInfo.com, picked up the story and
published an article presenting the Board's findings
against Gonzalez. (Id. ¶ 32.) Gonzalez,
however, did not receive a copy of the Police Board's
findings until December 31, 2013. (Id. ¶ 34.)
five years after the mace incident, on January 16, 2014,
Gonzalez was personally served with a 30-day suspension
notification ordered by Defendant Superintendent Garry
McCarthy. (Id. ¶ 35.) Gonzalez sought and
received assistance from FOP in challenging the suspension.
(Id. ¶ 39.) FOP drafted and filed a petition
for administrative review of Gonzalez's 30-day
suspension. (Id.) But in reviewing FOP's
petition, Gonzalez noticed an erroneous statement regarding
the date on which Superintendent McCarthy ordered the
suspension. (Id. ¶ 39.) Gonzalez alerted FOP to
the erroneous statement but it refused to amend the petition.
(Id. ¶ 41.) Because of this disagreement with
FOP, Gonzalez decided to retain private counsel, and an
amended petition was filed on February 14, 2014.
(Id. ¶ 42.) Gonzalez named the Police Board and
Superintendent McCarthy as defendants in the amended
petition. (City Defs.'s Mot. to Dismiss, Ex. 2, Dkt. No.
26-1.) In response, Defendants attempted to dismiss the
administrative proceedings based on what Gonzalez
characterizes as erroneous and misleading arguments. (Am.
Compl. ¶ 51, Dkt. No. 6.) Gonzalez also claims that,
throughout the course of the state court litigation,
Defendants committed various egregious and malicious acts,
including submitting perjured testimony and backdated
documents, intentionally filing an incomplete record, and
misrepresenting the facts. (Id. ¶ 53.)
Circuit Court issued its ruling on November 10, 2015.
(Id. ¶ 54.) The Circuit Court held that because
Defendants failed to fully comply with the required
procedures for instituting a 30-day suspension, the
suspension must be reversed as a violation of Gonzalez's
due process rights. (Id. ¶ 56.) Neither side
appealed the Circuit Court's findings. (Id.
¶ 57.) After the ruling, Defendants sent Gonzalez a
settlement agreement letter. (Id. ¶ 58.) The
settlement agreement proposed to resolve a grievance filed by
Gonzalez and reduce Gonzalez's 30-day suspension to 15
days, while also removing certain violations from his record.
(Id. ¶ 61.) The settlement agreement was
entered into between FOP and the City of Chicago Police
Department. (Id. ¶ 62.) According to Gonzalez,
however, the grievance cited in the settlement letter had
been withdrawn on October 23, 2015 and only resurrected after
the Circuit Court's decision reversing Gonzalez's
suspension. (Id. ¶ 60.) As a result, Gonzalez
considers the settlement fraudulent.
the alleged constitutional and other legal violations
directly related to the 30-day suspension, Gonzalez also
claims to have been subjected to a campaign of retaliation
due to his decision to challenge the Police Board's
punishment. The first alleged instance of retaliation
actually occurred before the Circuit Court issued its
decision when, on May 13, 2015, Gonzalez met with Sergeant
Don DeVito of the Internal Affairs Division at police
headquarters. (Id. ¶ 63.) The amended complaint
does not detail what exactly was discussed during the
meeting, but at some point DeVito became angry and told
Gonzalez, “I know where you're going with
this” and threatened “You're Done.”
(Id.) DeVito then had Gonzalez escorted out of the
headquarters. (Id.) The following day, Gonzalez
emailed DeVito about the incident. (Id. ¶ 63.)
DeVito never responded to this email. (Id.)
months later, on the morning of November 15, 2015, just five
days after the Circuit Court reversed Gonzalez's
suspension, Gonzalez again went to police headquarters, this
time to meet with a case worker in the medical section.
(Id. ¶ 78.) Gonzalez's aunt accompanied him
on the visit. (Id. ¶ 78.) While he was waiting
for his appointment, Gonzalez overheard the medical section
worker talking over the phone and telling an unknown person,
“He is here. You can see him after he is done.”
(Id. ¶ 79.) Shortly afterwards, Sergeant DeVito
and another tall male arrived. DeVito and the other unknown
male positioned themselves such that they were blocking
Gonzalez's exit. (Id. ¶ 80.) In response to
DeVito's presence, Gonzalez became fearful for himself
and his aunt, and began to experience shortness of breath.
(Id. ¶ 82.) Gonzalez attempted to exit the
waiting room, but DeVito and the other male continued to
block the doorway. (Id. ¶ 83.) DeVito told
Gonzalez, “no, no, no” and grabbed him by the
lower arm. (Id.) Although Gonzalez was eventually
able to exit the room, DeVito followed him into the main
lobby where Gonzalez heard someone say “I will just
lock you up.” (Id. ¶ 84.)
DeVito was not the only officer who is alleged to have
targeted Gonzalez for pushing back against the Police Board.
Gonzalez also claims to have been attacked by Sergeant Andres
Zayas on December 14, 2015 while attending a medical
appointment at Rush Hospital. (Id. ¶ 91.) On
that day, Gonzalez noticed an unknown man staring at him
while he checked in with hospital desk personnel. The man not
only stared at Gonzalez, but he also blocked the hospital
exit. (Id. ¶ 92.) The man told Gonzalez that he
was Sergeant Zayas, and Gonzalez immediately starting
experiencing heart palpitations, shortness of breath, and
anxiety. (Id. ¶¶ 92, 93.) Because Gonzalez
felt threatened and feared for his life, he attempted to walk
around Zayas and leave the area. (Id. ¶ 93.)
Zayas raised his hand to make contact with Gonzalez and, in
response, Gonzalez screamed, “stop threatening
me.” (Id. ¶ 93.) Afterwards, Gonzalez was
able to exit the building. (Id.) Gonzalez
immediately went to the emergency room at Northwestern
Memorial Hospital, where he was informed that due to his
mental state, the hospital could not release him without
prior approval from his psychologist. (Id. ¶
94.) After contacting his psychologist, Gonzalez was
released. (Id. ¶ 95.)
addition to these specific instances of alleged retaliation,
Gonzalez also claims to have been harassed by the police
department more generally. Indeed, Gonzalez contends that
certain members of the Chicago Police Department continue to
harass him, including by making late-night visits to his home
on January 8, 2016 and February 18, 2016. (Id.
¶ 97.) Gonzalez has also been harassed orally and in
writing. (Id. ¶ 98.) Finally, on January 1,
2016, the City of Chicago stopped paying Gonzalez.
(Id. ¶ 96.)
midst of this retaliation campaign, Gonzalez sought medical
attention for the emotional distress caused by the alleged
harassment. Gonzalez started seeing a psychologist after a
medical case worker noticed his distressed mental state and
recommended he seek help. (Id. ¶¶ 66, 67.)
After the medical case worker suggested mental health
treatment, Gonzalez called his primary care doctor regarding
his stress and anxiety, and the doctor prescribed medication
to treat those symptoms. (Id. ¶ 68.) On August
20, 2015, Gonzalez began therapy with a psychologist, who
Gonzalez continues to see. (Id. ¶ 69.) Pursuant
to a recommendation from his psychologist, Gonzalez attended
a psychiatric evaluation on January 4, 2016. (Id.
¶ 99.) The psychiatrist prescribed Gonzalez additional
medication, which he continues to take. (Id. ¶
point, Gonzalez was fired from his position as police
officer. It is unclear from the amended complaint how exactly
Gonzalez was fired but, on April 14, 2016, Gonzalez turned in
his badge and identification card to the Chicago Police
Department. (Id. ¶ 101.) This lawsuit followed
on August 10, 2016.
mentioned above, Gonzalez's amended complaint (which is
currently the operative complaint) includes claims against 16
different Defendants. Those Defendants have organized
themselves into four groups, each represented by separate
counsel and pursuing its own motion to dismiss. Those four
groups are as follows: (1) the City of Chicago, Caproni, and
IPRA Investigator Lakenya White (together, “City
Defendants”); (2) Superintendent McCarthy, Former
Interim Superintendent John Escalante, Superintendent Eddie
Johnson, Chief Juan Rivera, Chief Eugene Williams, Lieutenant
Jacqueline Ellison, and Civilian Director of Human Resources
Division Donald O'Neill (together, “Officer
Defendants”); (3) FOP and First Vice President of the
FOP Ray Casiano (together, “FOP Defendants”); and
(4) Sergeant DeVito and Sergeant Zayas.
first argue that the claims asserted by Gonzalez are barred
by the doctrine of res judicata. Under that
doctrine, “when a final judgment has been entered on
the merits of a case, it is a finality as to the claim or
demand in controversy, concluding parties and those in
privity with them, not only as to every matter which was
offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which might
have been offered for that purpose.” Highway J
Citizens Grp. v. U.S. Dep't of Transp., 456 F.3d
734, 741 (7th Cir. 2006) (quoting Nevada v. United
States, 463 U.S. 110, 129-30 (1983)). Although generally
“it is incorrect to grant a motion to dismiss under
Rule 12(b)(6) on the basis of an affirmative defense”
such as res judicata, see McCready v. eBay,
Inc., 453 F.3d 882, 892 n.2 (7th Cir. 2006), an
exception to this rule exists when a plaintiff
“admit[s] all the ingredients of an impenetrable
defense” in his complaint and thereby pleads himself
out of court. Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899, 901 (7th Cir. 2004).
an Illinois state court rendered the order at issue here,
this Court applies Illinois law to determine whether res
judicata bars Gonzalez's claims. See Long v.
Shorebank Dev. Corp., 182 F.3d 548, 560 (7th Cir. 1999).
Under Illinois law, the doctrine of res judicata
applies when there is “(1) a final judgment on the
merits by a court of competent jurisdiction; (2) an identity
of the causes of action; and (3) an identity of parties or
their privies.” See Perkins v. Cty. of Cook,
No. 13-cv-02430, 2014 WL 4783015, at *3 (N.D. Ill. Sept. 24,
2014); see also Rockford Mut. Ins. Co. v. Amerisure Ins.
Co. and Michigan Mut. Ins. Co., 925 F.2d 193, 195 (7th
Cir. 1991). Here, only the second two elements are at issue.
In addition, the party against whom res judicata is
invoked must have had a “full and fair”
opportunity to litigate the claim in the prior suit.
Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471
(7th Cir. 2007).
Same Causes of Action
determine whether two causes of action are the same, Illinois
courts apply a “transactional test” under which
“separate claims will be considered the same cause of
action for purposes of res judicata if they arise
from a single group of operative facts, regardless of whether
they assert different theories of relief.” River
Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 893
(Ill. 1998). The test is “pragmatic” as it
focuses on the facts underlying the different claims while
disregarding “the number of substantive theories, the
variant forms of relief flowing from those theories, and the
variations in evidence needed to support the theories.”
Garcia v. Vill. of Mount Prospect, 360 F.3d 630, 637
(7th Cir. 2004). In other words, Illinois courts do not
“require the same evidence or an identical theory of
relief” in order for the separate claims to be
considered the same cause of action. Cooney v.
Rossiter, 986 N.E.2d 618, 622 (Ill. 2012).
issue here is whether Gonzalez's state and federal claims
arise from the same group of operative facts as his Circuit
Court case. In his petition before the Circuit Court,
Gonzalez challenged the validity of the Police Board
decision, alleging that it was against the manifest weight of
the evidence, violated his due process rights, and was
otherwise capricious and unreasonable. In the Circuit Court
proceeding, Gonzalez solely sought review and reversal of the
Police Board's suspension decision. Here, in contrast,
Gonzalez brings federal claims pursuant to 42 U.S.C. §
1983, specifically alleging that the suspension decision
violated his constitutional due process rights and accusing
Defendants of conspiracy. Those are the only federal claims
Gonzalez asserts in his amended complaint-Gonzalez's
remaining claims arise under state law.
Gonzalez raises claims in this federal case that were not
raised before the Circuit Court, both the administrative
appeal before the Circuit Court and the instant lawsuit
question the validity of the Police Board's suspension
decision. Furthermore, Gonzalez's claims related to the
30-day suspension that are raised for the first time before
this Court arise from the same group of facts as his previous
claims-namely, the process leading up to his ...