United States District Court, N.D. Illinois, Eastern Division
THOMAS W. SHERRY, Plaintiff,
CITY OF CHICAGO, Defendant.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
Thomas W. Sherry has filed this lawsuit against the City of
Chicago (“the City”), bringing several claims
under 42 U.S.C. § 1983, as well as a state-law claim for
replevin. The City has moved to dismiss Sherry's
complaint under Federal Rule of Civil Procedure 12(b)(6). For
the following reasons, the City's motion  is granted
in part and denied in part.
has worked for the City as a police officer since May 5,
1997. Compl. ¶ 4, ECF No. 1. He was assigned to the
Special Operations Section (“SOS”) of the Chicago
Police Department (“CPD”) in 2004. Id.
¶ 6. In connection with a scandal involving multiple SOS
officers, Sherry was arrested and charged in 2006 with armed
violence, home invasion, residential burglary, and aggravated
kidnapping. Id. ¶ 7. Around the time of the
arrest, the City confiscated Sherry's three firearms and
destroyed one of them. Id. ¶¶ 22-23. The
City then stripped Sherry of his police powers, placed him in
a no-pay status, and prohibited him from working “in
any capacity” while the charges remained pending.
Id. ¶¶ 9-10.
the charges were dropped in February 2009, Sherry returned to
the CPD, although he was placed on “restricted
employment” status. Id. ¶¶ 11, 13.
Specifically, he “remained stripped of all police
powers and was forbidden from carrying a gun on or off
duty.” Id. ¶ 15. As of the filing of this
lawsuit, those restrictions remained in place. Id.
to Sherry, the City has refused to pay “any backpay or
benefits for the two and one-half years that he was unjustly
suspended from employment and facing criminal charges”
because he has yet to face the CPD's internal
disciplinary process. Id. ¶ 14. Although the
CPD operates under a general order establishing certain
disciplinary procedures, including “[p]rompt, thorough
investigations . . . into allegations of misconduct, ”
the City has not filed any charges of misconduct against
Sherry or conducted any investigation of him. Id.
¶¶ 16-19, 21.
alleges that, as a result of the City's “wrongful
suspension and subsequent refusal to reinstate” him, he
has been deprived of “salary and . . . numerous
overtime, special, and secondary employment
opportunities.” Id. ¶ 24. Moreover, he
has missed out on “promotional opportunities to various
positions and pay grades, ” because he has been
effectively prohibited from working as a police officer.
Id. ¶ 25. He states that he has lost
“wages, benefits, pension service credits and
contributions, ” and insurance coverage, and has
experienced “anxiety, emotional distress[, ] and
humiliation.” Id. ¶ 26.
filed this lawsuit on August 13, 2018, asserting a §
1983 claim for violation of his Fifth and Fourteenth
Amendment due-process rights (Count I); a § 1983 claim
for violation of his Second and Fourteenth Amendment rights
(Count II); and a state-law replevin claim. (Count
survive a motion to dismiss under Rule 12(b)(6), a complaint
must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
when considering a motion to dismiss, the Court accepts
“all well-pleaded factual allegations as true and
view[s] them in the light most favorable to the
plaintiff.” Lavalais v. Vill. of Melrose Park,
734 F.3d 629, 632 (7th Cir. 2013). At the same time,
“allegations in the form of legal conclusions are
insufficient to survive a Rule 12(b)(6) motion.”
McReynolds v. Merrill Lynch & Co., Inc., 694
F.3d 873, 885 (7th Cir. 2012) (citing Iqbal, 556
U.S. at 678). As such, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
Statute of Limitations
City first contends that some of Sherry's claims are
barred by the applicable statute of limitations. Although a
complaint “need not anticipate and overcome affirmative
defenses, such as the statute of limitations, ” a
district court may dismiss a claim under Rule 12(b)(6) if the
complaint reveals that the claim is unquestionably untimely.
Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860
F.3d 489, 492 (7th Cir. 2017). Furthermore, a plaintiff may
“plead himself out of court” if his complaint
includes factual ...