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Sheppard v. Dart

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

September 25, 2019

THOMAS J. DART in his official and individual capacities; THE COOK COUNTY SHERIFF'S MERIT BOARD; KIM FOXX, in her official capacity as Cook County State's Attorney; and COOK COUNTY, a unit of local government as indemnitor; ZELDA WHITTLER Ind. Cap.; GREGORY ERNST Ind. Cap.; and BRADLEY CURRY Ind. Cap., Defendants.


          Virginia M. Kendall, United States District Judge

         Plaintiff David Sheppard, a former long-time employee of the Cook County Sheriff’s Office, filed this eleven count, forty-four page complaint challenging his termination as a Police Investigator within the Sheriff's Office of Correctional Information and Investigations Division. Among the eleven counts is a 42 U.S.C. § 1983 claim that Sheppard's First Amendment rights were violated. Sheppard alleges that he was fired as a means of retaliation for his reporting of certain misconduct he uncovered during the course of his employment. All Defendants moved to dismiss Sheppard's claims on various grounds. However, the Court need only address Defendants’ Motion with respect to Count One. Because the Court ultimately finds that the First Amendment retaliation claim—the only claim this Court has original jurisdiction over—cannot state a claim, the remaining ten counts are remanded back to the Circuit Court of Cook County for further proceedings.


         David Sheppard began serving as a Cook County Sheriff's Police Officer in June of 2004. (Dkt. 13, ¶ 29). Specifically, Sheppard worked in the Correctional Information and Investigations Division (CIID) where he "investigate[d] information and potential crimes committed by detainees and crimes committed on the Cook County Department of Corrections ('CCDOC') properties…" (Id. at ¶¶ 38, 40). One of the potential crimes that Sheppard believes he discovered was a money laundering scheme orchestrated by CCDOC detainees. (Id. at ¶ 41). As part of his job, Sheppard conducted an investigation and proposed plans to eliminate the scheme to his supervisors, Defendants Curry and Ernst. (Id. at ¶ 42). Neither Curry nor Ernst did anything to address the money laundering following Sheppard's report. (Id. at ¶ 43).

         During his employment, Sheppard also learned that an attorney battered a detainee and subsequently filed a false police report about the incident. (Id. at ¶ 44). Sheppard arrested the attorney, and then sought to file felony charges, but was ultimately asked to withdraw the request to press felony charges by Defendants Curry and Whittler. (Id. at ¶¶ 45-46). Sheppard declined to withdraw the charges, but was later ordered to do so by Curry. (Id. at ¶ 48). Sheppard was also involved in a coordinated investigation with the State's Attorney's Office regarding an internal CCDOC incident. (Id. at ¶ 51). As part of the investigation, Sheppard requested video evidence. (Id. at ¶ 52). After receiving initial pushback from the Sheriff’s Video Unit regarding the request, Sheppard sought the assistance of Defendants Ernst and Curry who only provided him with a redacted version of the video. (Id.). Sheppard believed that the redacted video restricted the evidence in the case and therefore was considered evidence tampering. (Id. at ¶ 53). The State's Attorney's Office ultimately subpoenaed the non-redacted video. (Id. at ¶ 54).

         Separately, in 2016, Sheppard reported what he considered to be systemic violations at CCDOC. First, he believed that detainees were regularly not being read their Miranda rights. (Id. at ¶ 56). Second, Sheppard "discovered intake violations of new arrestees." (Id. at ¶ 59). Again he reported his concerns to Curry and Ernst who told him not to worry and did nothing to address his findings. (Id. at ¶¶ 58, 60).

         In March of 2017, Sheppard filed a report with the Cook County Office of the Independent Inspector General (OIIG) regarding the above alleged violations. (Id. at ¶ 62). Sheppard then filed the same report with seven other state and federal agencies and officials, including: Cook County Sheriff's Office of Professional Review, Attorney General's Office of the State of Illinois, Cook County State's Attorney Kimberly Foxx, Cook County Board President Toni Preckwinkle, Cook County Board Commissioner Richard Boykin, Cook County Board Commissioner John P. Daley, and the United States' Attorney's Office. (Id. at ¶ 64).

         Less than a month after submitting this report, Sheppard received notification that he had to attend a Loudermill hearing to determine if he would be suspended without pay pending a termination hearing before the Cook County Sheriff's Merit Board. (Id. at ¶ 65). Sheppard came to learn that Ernst personally filed the complaint against him. (Id. at ¶ 66). Sheriff Dart later approved Sheppard's suspension without pay and the termination charges before the Merit Board. (Id. at ¶ 69). Ultimately, the Merit Board terminated Sheppard for violating the Sherriff's Department rules and regulations. (Dkt. 13-1, pg. 5). Specifically, Sheppard copied files, without permission, that contained "testing scores, evaluations, attribute questions, and operational questions for personnel who applied in the CIID Unit in 2013" in preparation of a union grievance hearing scheduled for October 2016. (Id. at pg. 4).

         Sheppard filed this lawsuit in the Circuit Court of Cook County and Defendants removed the case to Federal court. Along with his First Amendment retaliation claim (Count One), Sheppard alleges violations of the Illinois Whistleblower Act (Count Two), Illinois common law retaliatory discharge (Count Three), violations of Illinois' Administrative Review Law (Counts Four – Six), Illinois Mandamus actions (Counts Seven – Nine), a violation of the Illinois Open Meetings Act (Count Ten), and a count for indemnification against Cook County (Count Eleven).


         To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(internal quotations omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Olson v. Champaign Cty., Ill., 784 F.3d 1093, 1099 (7th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Toulon v. Cont'l Cas. Co., 877 F.3d 725, 734 (7th Cir. 2017) (citing Iqbal, 556 U.S. at 678.).


         I. Sheppard's First Amendment Retaliation Claim Fails as a Matter of Law

         The sole basis for this Court's jurisdiction over the instant matter is Sheppard's § 1983 claim that Defendants Dart, Whittler, Curry, and Ernst violated Sheppard's First Amendment rights when they acted to suspend him without pay and referred him to the Merit Board for termination. Sheppard argues ...

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