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Marshall v. The Village of Island Lake

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

August 13, 2019



          Harry D. Leinenweber, Judge United States District Court

         Plaintiff Joshua Marshall claims that when he worked for the Defendant Village of Island Lake's police department, Defendants Anthony Sciarrone and Billy Dickerson retaliated against Marshall for speaking out about corruption within the department. Defendants have moved to dismiss Marshall's Complaint on the grounds that Marshall failed to plead facts to state his federal claims, and that the Court should dismiss the remainder of his state law claims. For the reasons stated herein, Defendants' Motion to Dismiss (Dkt. No. 27) is granted in part and denied in part.

         I. BACKGROUND

         The Village of Island Lake, Illinois (“the Village”) is a municipal corporation. (Compl. ¶ 7, Dkt. No. 1.) Plaintiff Joshua Marshall began working for the Village in November 2015. (Compl. ¶ 8.) During the times relevant to this suit, Defendant Anthony Sciarrone was the Village's Chief of Police, Defendant Billy Dickerson was a police sergeant, and Marshall was a police officer in training. (Compl. ¶¶ 4-6.) Marshall's precise employment status is somewhat unclear from the face of the Complaint-Marshall states that he was “a sworn Island Lake police officer, ” enrolled in the Village's “field training officer school, ” and on a “probationary period.” (Compl. ¶¶ 8, 13, 15.) Dickerson was Marshall's supervisor. (Compl. ¶ 6.)

         Around October 2016, Marshall learned that Dickerson was inflating his own pay by claiming he worked more hours than he actually did. (Compl. ¶ 11.) Marshall reported this activity to Sciarrone. (Compl. ¶ 12.) According to Marshall, shortly after making this complaint, and in retaliation for making the complaint, Dickerson removed Marshall from field training officer school. (Compl. ¶ 13.) Sciarrone and Dickerson then began “a campaign of harassment and retaliation” against Marshall, including opening an investigation into his conduct, accusing him of violating department rules, and threatening to prevent Marshall from completing his probationary period. (Compl. ¶¶ 14-15.)

         The conflict among Marshall, Dickerson, and Sciarrone came to a head on December 8, 2017, when Marshall testified at a motion to suppress hearing involving a suspect, he had arrested a year earlier. (Compl. ¶ 17.) When the prosecutor asked Marshall to identify the criminal defendant as the person Marshall had arrested a year earlier, Marshall testified that he could not identify the defendant as that person with 100 percent certainty. (Compl. ¶ 18.) That same day, Dickerson began an investigation into Marshall's testimony, and two weeks later, Dickerson recommended that Marshall be terminated for his testimony. (Compl. ¶ 20.) Sciarrone fired Marshall on December 20, 2017. Marshall believes this termination was in retaliation for having complained about Dickerson's time theft. Furthermore, Marshall alleges that after he was fired, Dickerson interfered with Marshall's ability to obtain new employment as a police officer, by making false and defamatory statements to a police department Marshall later applied to for employment. (Compl. ¶ 22.)

         Marshall filed suit in December 2018. His Complaint sets forth five counts: (1) retaliation in violation of the First Amendment, under 42 U.S.C. § 1983; (2) violation of the Fourteenth Amendment right to due process, under 42 U.S.C. § 1983; (3) retaliation in violation of the Illinois Whistleblower Act, 740 ILCS 174/10 et seq.; (4) common law retaliatory discharge; and (5) common law defamation per se. Defendants now move the Court to dismiss Counts I, II, and V for failure to state a claim, and to decline to exercise supplemental jurisdiction over Counts III and IV, the remaining state law claims. The Court will first address the federal claims before turning to the issue of whether to exercise supplemental jurisdiction, and finally, the Court will assess the defamation claim.


         Dismissal for failure to state a claim under Rule 12(b)(6) is proper when “the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Factual allegations must be enough to raise a right to relief “above the speculative level.” Twombly, 550 U.S. at 555. In reviewing a plaintiff's claim, the court must construe all of the plaintiff's factual allegations as true and must draw all reasonable inferences in the plaintiff's favor. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). However, legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption. Id.


         A. First Amendment Retaliation

         Count I alleges that Defendants retaliated against Marshall for engaging in speech-the complaint to Sciarrone about Dickerson's time theft-that is protected under the First Amendment. Defendants argue that Marshall cannot state a retaliation claim because when he complained about Dickerson's time theft, Marshall was acting in his official capacity as a government official.

         The First Amendment generally prohibits government officials from dismissing or demoting an employee because the employee engaged in constitutionally protected political activity. Heffernan v. City of Paterson, N.J., 136 S.Ct. 1412, 1416 (2016). To state a First Amendment retaliation claim, Marshall must allege that: (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity; and (3) the protected activity he engaged in was at least a motivating factor for the retaliatory action. Archer v. Chisholm, 870 F.3d 603, 618-19 (7th Cir. 2017) (citations omitted). Defendants assert that the first element-whether Marshall engaged in protected speech-is not met here because the speech in question was pursuant to his official duties as a public employee. When public employees make statements “pursuant to their official duties, ” the employees are “not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). The Supreme Court has held that First Amendment protection for a public employee's speech turns on: (1) whether the employee spoke as a private citizen, (2) on a matter of public concern; and (3) if so, whether the governmental entity has offered an adequate justification for its decision to treat the employee differently from the general public. Id. at 418.

         The parties dispute whether Marshall was speaking as a public official or private citizen. Defendants argue that Marshall was speaking pursuant to his official duties because he was a police officer reporting a theft (of time), and it is “axiomatic that part of a police officer's official duties is to act when there is a criminal violation of the law.” (Defs.' Mot. at 5, Dkt No. 29.) Marshall urges that he was speaking as a private citizen about a matter of public concern: “misconduct by a public official.” (Pl.'s Resp. at 4, Dkt. No. 31.) Marshall claims that as a police officer, his professional duties did not include reporting the misconduct of his supervisor, and as such, his complaints about Dickerson were made as a private citizen. (See Pl.'s Resp. at 5 (“In the ordinary course of a police officer's work, they are not involved in rooting out corrupt wage and hour practice by their supervisors. . . . Ferreting out internal corruption was presumably not in Marshall's job description . . . thus he was not acting as a police officer but as a concerned citizen when he reported Dickerson's ...

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