United States District Court, N.D. Illinois, Eastern Division
Charles R. Norgle, Sr., Judge.
DEFENDANT JOHN ESCALANTE'S MOTION FOR
John Escalante (“Escalante”), by and through his
undersigned counsel, in support of his Motion for Judgment on
the Pleadings, pursuant to Fed.R.Civ.P. 12(c), states:
began as a nine-count complaint against thirty-nine
Defendants has been whittled down to a single claim of
procedural due process against the City of Chicago and five
individual Defendants (current and former employees of the
City of Chicago). In sum, Plaintiff alleges that, upon
announcing his retirement from the Chicago Police Department
(“CPD”) on August 13, 2015, Plaintiff was
entitled to a CPD retirement identification card. (First Am.
Compl. or “Compl.” ¶¶ 63, 79.)
Plaintiff alleges that he was denied his retirement
identification card without a “chance to respond nor a
full and fair hearing before he was denied, ” the
retirement identification card, in violation of his due
process rights under the Fourteenth Amendment. (Id.
¶¶ 81-82.) Plaintiff asserts that the determination
of whether an officer retires in good standing, in order to
qualify for a retirement identification card, is left to the
discretion of the CPD Superintendent. (Id.
one Defendant, John Escalante, has nothing to do with
Plaintiff's procedural due process claim. Escalante was
not named the CPD Interim Superintendent until December 1,
2015, three and a half months after Plaintiff retired from
CPD and was denied his retirement identification card. Aside
from the case caption, Escalante's name appears only
twice in the nineteen-page Complaint (Dkt. No. 69), and at no
point in the Complaint does Plaintiff attempt to connect
Escalante to his claimed injury of a denial of his due
process rights. The pleadings, including the Complaint and
Escalante's responses in his Answer, reflect that
Escalante had no part in the denial of Forgue's
retirement identification card. Accordingly, the Court should
enter judgment on the pleadings, pursuant to Fed.R.Civ.P.
12(c), and dismiss Escalante from this action with prejudice.
motion for judgment on the pleadings is reviewed under the
same standard as a motion to dismiss for failure to state a
claim under Rule 12(b)(6). Frankenmuth Mut. Ins. Co. v.
Hodsco Constr., Inc., 191 F.Supp.3d 863, 867 (N.D. Ill.
2016) (Norgle, J.) (citing Lodholtz v. York Risk Servs.
Grp., Inc., 778 F.3d 635, 639 (7th Cir. 2015) and
granting a Rule 12(c) motion)). In order to defeat a Rule
12(c) motion for judgment on the pleadings, a plaintiff's
complaint “must actually suggest that the plaintiff has
a right to relief, by providing allegations that raise a
right to relief above the speculative level.”
Frankenmuth Mut. Ins. Co., 191 F.Supp.3d at 867-68
(quoting Indep. Trust Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 935 (7th Cir. 2012)) (internal
quotation marks and citation omitted)); see also Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (stating
that a complaint must allege “enough facts to state a
claim to relief that is plausible on its face”). The
Court accepts as true the factual allegations contained in
the complaint, and ignores any allegations that are mere
legal conclusions. Frankenmuth Mut. Ins. Co., 191
F.Supp.3d at 868 (citing Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014)).
“In considering a 12(c) motion, the court
‘accept[s] the facts alleged in the complaint in the
light most favorable to the . . . non-moving
party.'” Diamond Blade Warehouse, Inc.,
420 F.Supp.2d at 870 (quoting Guise v. BWM Mortg.,
LLC, 377 F.3d 795, 798 (7th Cir.2004)).
Court will grant a 12(c) motion only if “it appears
beyond a doubt that [Plaintiff] cannot prove any facts to
support a claim for relief and [Defendant] demonstrates that
there are no material issues of fact to be resolved.”
Diamond Blade Warehouse, Inc., 420 F.Supp.2d at 870
(quoting Brunt v. SEIU, 284 F.3d 715, 718-19 (7th
Cir. 2002)). A Rule 12(c) is the appropriate mechanism to
dismiss a formally sufficient complaint when a plaintiff
“does nothing to back it up after the defendant moves
for dismissal.” Chicago Sch. Reform Bd. of Trustees
v. Substance, Inc., 79 F.Supp.2d 919, 940-41 (N.D. Ill.
2000) (Norgle, J.) (citing Walker v. National Recovery,
Inc., 200 F.3d 500 (7th Cir. 1999)) (granting
plaintiff's motion to dismiss defendant's
counterclaims under Rule 12(c) even if the counterclaims
“technically” stated claims pursuant to
fails to articulate a claim against Escalante. Plaintiff
alleges that, “[o]n or about August 13, 2015,
Lieutenant Forgue made known his intentions to retire from
the Police Department of the City of Chicago by surrendering
his active duty card and other issued police equipment to the
Personnel Division of Human Resources, Director Donald J.
O'Neill.” (Compl. ¶ 62.) Plaintiff further
alleges that, on or about August 14, 2015, Plaintiff was
informed that he would not receive his retirement
identification card. (Compl. ¶ 69.) Plaintiff claims
that he was informed of the denial of his retirement
identification card by Yolanda Talley, a CPD Sergeant in the
division of CPD Human Resources. (Id.) Plaintiff
states that the determination of whether a retiring CPD
officer is in “good standing, ” and thus eligible
to receive a retirement identification card, is a
determination made at the discretion of the CPD
Superintendent. (Compl. ¶¶ 65-66.)
at the time Plaintiff retired from the CPD and learned he was
not going to receive his retirement credentials-August
2015-Defendant Escalante was serving as the Chief of the
Bureau of Detectives, not
Superintendent. (Escalante Answer ¶ 7, attached
hereto as Exhibit A.) In fact, Defendant Escalante
lacks any substantive knowledge regarding the facts and
circumstances surrounding the denial of Plaintiff's
retirement credentials, as evidenced by his Answer to the
Escalante is only mentioned twice in the Complaint. First,
Plaintiff includes pro forma language alleging that Escalante
is named as a “present or former employee of the City
of Chicago, ” who “engaged in the conduct
complained of while on duty, in the course and scope of [his]
employment and under color of law . . . [and is] sued in his
individual capacity.” (Compl. ¶ 7.) Second,
Escalante is referenced in Paragraph 64 of the Complaint,
which states that:
At all times relevant hereto it was the policy and practice
of the Chicago Police Department, and in particular
Defendants Police Superintendent John Escalante, and Donald
J. O'Neill, to issue what is known as a “retired
identification card” to those sworn peace officers
employed by Defendant City of Chicago who retire for pension
purposes, such as Lieutenant Forgue.
(Compl. ¶ 64.) Escalante served as the Interim CPD
Superintendent from December 1, 2015, through April 12, 2016.
(Escalante Answer ¶ 7.) Escalante admits it was the
policy of the Chicago Police Department that sworn officers
leaving the Department in good standing and having served a
minimum of ten years creditable service were eligible
retirement identification card. (Escalante Answer ¶ 64.)
This is the extent of Escalante's connection to ...