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Sherry v. City of Chicago

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

June 19, 2019

THOMAS W. SHERRY, Plaintiff,


          John Z. Lee United States District Judge.

         Plaintiff 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 [17] is granted in part and denied in part.

         Background [1]

         Sherry 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.

         After 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.

         According 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.[2]

         Sherry 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.

         Sherry 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 III).

         Legal Standard

         To 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).

         Additionally, 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. at 678.


         I. Statute of Limitations

         The 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 ...

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