Summary
dismissing complaint where municipal policy allegations were conclusional and without factual support
Summary of this case from Richardson v. Union Pacific Railroad CompanyOpinion
No. 99 C 7641
March 29, 2000
MEMORANDUM OPINION AND ORDER
Between January 1981 and October 1997, plaintiff Willie Ross worked for the City of Chicago, first in the Department of Aviation, then in the Department of Streets and Sanitation, and finally in the Department of Sewers. Throughout his employment, Ross was a union member, and by 1995 he had achieved "Career Service status," which meant — according to the collective bargaining agreement and the City of Chicago personnel rules — that he could be terminated only for just cause, not "at will." In October 1995, Ross decided to leave his position as a Motor Truck Driver in the Department of Streets and Sanitation to pursue a position as Hoisting Engineer Apprentice (a non-Career Service position) in the Department of Sewers. To safeguard his Career Service status, however, Ross requested a "leave of absence" from John Gustas, his supervisor in the Department of Streets and Sanitation. According to Ross, Gustas denied him the leave of absence and told him that he could not transfer to the apprenticeship position unless he resigned from his current position in the Department of Streets and Sanitation. From what we understand, the essence of Ross' claim is that his supervisors conspired against him when: (1) Gustas intentionally misled him into believing that he needed to resign in order to transfer to the apprenticeship position but that his resignation would not affect his Career Service status; and (2) Zander and Falcon took advantage of Ross' newly unprotected status and fired him for no reason.
After Ross resigned from his position and began the apprenticeship, he got a letter from John Zander, his Department of Sewers supervisor, informing him that he was terminated effective October 24, 1997. When Ross asked why he had been fired, Zander told Ross: (1) that Zander's boss, Mary Jo Falcon — the "Assistant Commissioner for the Department of Sewers" — told Zander to give Ross the termination letter; and (2) that Ross' termination had nothing to do with his performance. Ross tried to get the union to advocate for him, but to no avail; within a week he realized that the union was not going to help him redress his grievances. So Ross sought legal assistance. According to Ross, the attorney who agreed to represent him tried to negotiate a settlement by telling the City that Ross intended to file a lawsuit alleging that he was wrongfully terminated. Ross claims, however, that this lawyer stopped communicating with him after two or three months, and that Ross was unable to contact him. Ross eventually filed a pro se complaint against the City of Chicago in the Cook County Circuit Court on October 26, 1998, and later obtained different counsel. The City removed the action to this Court in November 1999 when they learned that Ross was alleging a federal constitutional violation.
Ross bases his claim on 42 U.S.C. § 1983, alleging that the defendants violated his rights to due process under the Fourteenth Amendment to the United States Constitution. The City of Chicago now moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Ross' amended complaint for failure to state a claim. Although Ross added defendants John Zander, Mary Jo Falcon, and John Gustas in their individual and official capacities shortly before the motion to dismiss was filed, the individual defendants have not yet been served so at this point we will consider only the claims Ross makes against the City of Chicago.
Initially, Ross' complaint included breach of contract and fraudulent misrepresentation claims, but in his response to the City's motion to dismiss Ross concedes that these state law counts do not have merit. We hereby dismiss those counts (II and III) with prejudice.
We observe also that Ross is listed on the docket as a pro se litigant — even though he has been represented by counsel at all times since before this case was removed from state court. Apparently Ross' attorney has not yet filed an appearance with this Court, and we order her to do so immediately.
A municipality is not liable under § 1983 for the actions of tortfeasors employed by the City unless the alleged constitutional injury is inflicted in the execution of an official City policy or custom. Monell v. New York City Dept. of Social Sev's., 463 U.S. 658, 694 (1978). To state a § 1983 municipal liability claim, plaintiffs must allege an "affirmative link" between the policy and the constitutional violation such that the enforcement of the policy was the "moving force" behind the violation. See Cornfield By Lewis v. School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)). A municipal policy can violate an individual's civil rights via: "(1) an express policy that, when enforced, causes a constitutional deprivation; (2) `a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a `custom or usage' with the force of law'; or (3) an allegation that the constitutional injury was caused by a person with `final policymaking authority.'" Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 734-35 (7th Cir. 1994).
Because this is a motion to dismiss, we accept as true Ross' well-pleaded factual allegations and draw all reasonable inferences in the light most favorable to him. See Cornfield by Lewis v. School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). Ross' amended complaint alleges that Zander, Falcon, and Gustas acted pursuant to express City policy and official practice and "with the knowledge, acquiescence and active participation of the highest ranking officers of the City." But Ross offers no facts in support of these claims — he does not identify what kind of policy might have influenced the supervisors' actions nor which "highest-ranking officers" knew of and approved such actions. We recognize that under the federal system of notice pleading plaintiffs are not required to give detailed facts in support of their claims, see Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993), but in § 1983 cases, "`[b]oilerplate allegations of a municipal policy, entirely lacking in any factual support that a [municipal] policy does exist, are insufficient'" to survive a motion to dismiss. McTigue v. City of Chicago, 60 F.3d 381, 382-83 (7th Cir. 1995) (quoting Baxter, 26 F.3d at 736); see also Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir. 1996) ("something more than a conclusory allegation is necessary" to support a Monell policy allegation). Not only are Ross' allegations conclusory, but they are too vague to support a § 1983 municipal liability claim.
Ross' claim that the defendants' unlawful acts "were so pervasive and continuous as to constitute the policy and practice of the City" is similarly deficient. Aside from the inclusion of that boilerplate language, Ross' complaint makes no mention of any widespread practice or custom and does not recount any pervasive or continuous conduct. Ross alleges that all of the individual defendants' actions were unlawful, but all were part of one situation or episode particular to him. Specifically, Ross claims that Gustas told him incorrectly that he had to resign so that he would be eligible for termination at will, and that Zander and Falcon then terminated him. These acts, all part of one isolated incident, do not support Ross' claim that it had become City "custom" or "widespread practice" to engage in unconstitutional conduct. Ross makes no reference to any pattern of practice from which we could infer that Chicago's policymaking officials had knowledge of unconstitutional conduct and ratified it by acquiescence, and we cannot allow a municipal liability suit to proceed based on a respondeat superior theory. See Monell, 436 U.S. at 690-91.
In fact, Ross says elsewhere in the amended complaint that it was policy and practice of the City to grant leaves of absence from one department when a Career Service employee sought a position in another. He alleges that the individual defendants' actions in denying him a leave of absence were " in contravention of the express policies and practice of the City of Chicago" (emphasis added). By alleging that the individual defendants' treatment of him was unauthorized, Ross effectively pleads himself out of court; he cannot consistently claim that the actions were taken pursuant to City policies and practices. See Auriemma v. Rice, 957 F.2d 397, 399, 401 (7th Cir. 1992). Actions that frustrate local government policy cannot be the basis for holding that government body liable; rather, to state a § 1983 claim, "the agent's action must implement" City policy. Id. at 400.
Ross goes on to say that we should consider the allegedly unlawful acts to have stemmed from City policy because the perpetrators were final policymakers for the City or at least were officials to whom final policymaking authority had been delegated. However, the question of final policymaking authority is one of state law, and we know that the "[a]uthority to determine City employment policy is vested only in the City Council and its Department of Personnel," see Limes-Miller v. City of Chicago, 773 F. Supp. 1130, 1136 (N.D. Ill. 1991) (citing Ill. Rev. Stat. Ch. 24, § 10-4-1, granting City Council power to govern relationship between City and its employees, and Ch. 2-754 of Chicago Municipal Code, by which City Council establishes Department and Commissioner of Personnel). As for delegation, the Seventh Circuit recently held that "the mere unreviewed discretion to make hiring and firing decisions does not amount to policymaking authority. There must be a delegation of authority to set policy for hiring and firing, not a delegation of only the final authority to hire and fire." Kujawski v. Bd. of Comm'rs of Bartholomew County, Indiana, 183 F.3d 734, 739 (7th Cir. 1999). While we recognize that plaintiffs are not subject to any heightened standard of pleading specificity in § 1983 cases, see Leatherman, 507 U.S. at 168, we cannot understand what policies Ross thinks were used to violate his rights. And though he claims that Zander, Falcon, and Gustas had "final policymaking authority" to determine whether he would be granted a leave of absence and whether he would be terminated, this does not amount to authority to make policy on the city's behalf. Ross may be claiming that the individual defendants were responsible for any loss he incurred, but his complaint fails to state a municipal liability claim. See Auriemma, 957 F.2d at 401.
Finally, Ross contends that "Defendants failed to properly appoint, train, supervise, regulate, discipline, investigate or otherwise control ranking officers, supervisory and other employees and agents of the City of Chicago and failed to implement and enforce personnel policies and practices which would have prevented the violation of Plaintiff's Fourteenth Amendment right to due process." But again, the single incident of misconduct alleged by Ross will not support a claim of inadequate training by the City, for the same reasons that a single incident cannot support a claim that a municipal custom or practice amounts to policy, See James v. Milwaukee County, 956 F.2d 696, 701 n. 4 (7th Cir. 1992) ("this approach avoids pinning liability on municipalities for the random acts of municipal employees") (discussing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)). Ross fails to allege any facts in support of his inadequate training claim, and the inclusion of this boilerplate language will not keep his claim afloat.
For these reasons, we conclude that no set of facts consistent with the allegations in Ross' complaint would entitle him to relief. Even taking all of the allegations in Ross' complaint as true and drawing all reasonable inferences in the light most favorable to him, we find that he has failed to state a claim for municipal liability under 42 U.S.C. § 1983. We therefore grant the City of Chicago's motion to dismiss all three of Ross' counts against the City itself, and all that remains pending is Count I alleging that the named defendants violated § 1983. The next status hearing is hereby set for Friday, June 30, 2000, at 10:00 a.m. It is so ordered.
See fn 1, supra.