Opinion
00 C 0676
July 13, 2001
The defendants move to dismiss parts of the amended complaint. Most of the issues are minor, almost typographic, and have led to some confusion. But dismissal is not necessary. To clarify: Count I is an official capacity claim, not an individual capacity claim and for reasons already stated, that count stands. Count III is an individual capacity claim for racial discrimination (plaintiff withdraws any allegation of First Amendment retaliation against the Director and Merit Board Members individually). The complaint sufficiently pleads personal involvement of the Director and the Merit Board Members in intentionally participating in the procedure of Mata's promotion (or lack thereof). It may be, as defendant suggests, that the Director and Merit Board Members really had no participation sufficient to trigger § 1983 liability. I must leave that question for another day. Since a portion of the individual capacity claims in Count III survive, I deny the motion to strike the request for damages. If, after a factual record is developed, some of Mata's requested relief is beyond the power of defendants, I will address that argument at that time.
I adhere to my view that Count IV states a First Amendment retaliation claim only for conduct occurring after December 21, 1998. I gave plaintiff leave to amend so that he could allege earlier speech on a matter of public concern, but plaintiff chose not to amend. That, of course, is fine with me. To the extent plaintiff has not amended his complaint to conform to my earlier rulings, those rulings apply to the amended complaint. See Mata v. ISP, 2001 WL 292804 *1 (N.D.Ill. 2001); see also Minute Order of 04/23/2001. No further amendment is necessary, however.
I think it unnecessary to strike the reference "State of Illinois" in ¶ 1 of the Amended Complaint. That reference does not name the State as a defendant; it is innocuous. It is also unnecessary to strike any reference to the Merit Board violating Title VII; I do not read the complaint to contain any such allegation (and plaintiff acknowledges that he does not intend to make such an allegation).
The motion to dismiss and strike [34-1, 34-2] is denied.