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Forgue v. City of Chicago

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

April 2, 2018

CITY OF CHICAGO, a municipal corporation, et al., Defendants.

          Hon. Charles R. Norgle, Sr., Judge.


         Defendant 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:


         What 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).[1] 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. ¶¶ 65-66.)

         Yet, 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.


         A 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)).

         The 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 12(b)(6)).


         Plaintiff 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.)

         Critically, 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.[2] (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 Complaint.

         Defendant 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 ...

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