Wheeler v. Piazza

364 F.Supp.3d 870

Paul WHEELER, Plaintiff,

v.Peter PIAZZA, et al., Defendants.

Case No. 16-cv-3861

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

Signed March 5, 2019

Laura Lee Scarry, Debra Ann Harvey, James L. DeAno, DeAno & Scarry, LLC, Chicago, IL, Monifa Kafi Gray, Allen Law Group, Detroit, MI, for Plaintiff.

Sarah Hughes Newman, Illinois Attorney General, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

In his Second Amended Complaint, Plaintiff Paul Wheeler renews his claims against Defendants Peter Piazza, Sydney Roberts, Donnelle Grygiel, and Elmer Garza (collectively "Defendants") for conspiring to and then violating his First Amendment rights under 42 U.S.C. § 1983as well as Illinois state law. Currently before the Court is Defendant's motion to dismiss [54] Plaintiff's second amended complaint for failure to state a claim. For the reasons explained below, Defendants motion [54] is denied in part and granted in part. Count VI is dismissed for failure to state claim, while Plaintiff may proceed with the remaining counts. Additionally, the Court strikes Exhibits A & B [55-1; 55-2] attached to Defendants' motion and did not consider them in the resolution of this motion. The case is set for further status on March 20, 2019 at 9:00 a.m.

I. Background¹

The full background of this case is set forth in the Court's previous opinion, knowledge of which is assumed here. See [46 ( Wheeler v. Piazza , 2018 WL 835353 (N.D. Ill. Feb. 13, 2018) ) ]. In brief, Plaintiff, an officer with the Illinois Secretary of State Department of Police ("ISOS Police"), alleges that from October 2013 to June 2014 he met with various state and federal investigators multiple times to report alleged misconduct and abuse by ISOS Police personnel, including at least two of the defendants. [52, ¶¶ 5, 11–15.] Plaintiff alleges that at some point before June 2014, Defendants became aware of the allegations and the investigations. [Id. ¶ 16.]

Upon learning of these discussions, Defendants allegedly conspired to retaliate against Plaintiff. [Id. ¶¶ 28.] In addition to the allegedly sham investigation that led to the imposition of a punitive leave and a reduction of his responsibilities, [id. ¶¶ 25–59; see also 2018 WL 835353, at *2 ], Plaintiff now alleges several other instances of retaliatory conduct between his protected speech in 2013 and 2014 and March 2015 when Defendants placed him on leave and initiated a sham investigation. Specifically, Plaintiff alleges that Defendants:

(1) purposely delayed his order of specialty body armor (necessitated by his use of an insulin pump) for almost 5 months—from April 3 to August 29, 2014—when such orders typically take 2–3 weeks, [52, ¶¶ 17–18];(2) denied two separate requests from Plaintiff in October 2014 to move his residence to Kane and DeKalb counties, respectively, [id. ¶ 22];² and

(3) denied Plaintiff's request in January 2015 to have a "moving radar" installed in his vehicle despite the availability of funds and the fact that Plaintiff "conducted a majority of investigations in District 1 relating to ‘driving under the influence of alcohol’ [ ] and ‘speeding’ offenses while providing that equipment to less qualified and more junior individuals, [id. ¶ 23].³

Additionally, Plaintiff alleges that in August 2014, a co-worker informed him that "he needed to ‘stay under the radar’ because the Defendants were watching him." [Id. ¶ 21.] The co-worker also informed him that Defendants had been sending emails to each other about him for several months. [Id. ] The alleged conspiracy and pattern of retaliation culminated in what Plaintiff asserts was a sham investigation into a traffic stop that Defendants used as an excuse to punish him for his discussions with investigators. [Id. ¶¶ 25–57.]

In light of Defendants' purported actions, Plaintiff filed this action in March 2016. [1.] Defendants then moved to dismiss the initial complaint, see [16], which the Court struck without prejudice after Plaintiff filed his first amended complaint, see [26]. That complaint asserted claims under § 1983 for violation of Plaintiff's First Amendment and due process rights, conspiracy to deprive him of those rights, and a host of state law claims. See generally [26.] Defendants subsequently filed a motion to dismiss, [33], which this Court granted on February 13, 2018, [46]. The Court's memorandum opinion and order also granted Plaintiff leave to file an amended complaint by March 13, 2018, [46], which Plaintiff did, see [52]. Defendants have again moved to dismiss the entire complaint [54], and the Court now resolves that motion.

II. Standard

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level." E.E.O.C. v. Concentra Health Servs., Inc. , 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

"A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). 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." Twombly , 550 U.S. at 558, 127 S.Ct. 1955. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A. , 507 F.3d 614, 618 (7th Cir. 2007). Evaluating whether a "claim is sufficiently plausible to survive a motion to dismiss is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " Id. (quoting McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011) ).

III. Analysis

Defendants have moved to dismiss all claims in the Second Amended Complaint, arguing that each of Plaintiff's claims fail as a matter of law.

A. Federal Claims

1. Violation of the First Amendment (Count I)

The Court previously dismissed Plaintiff's First Amendment retaliation claim because it concluded that it could not plausibly infer that his speech was a motivating factor for the Defendants' allegedly retaliatory actions. Specifically, the fact that approximately nine months passed between his protected speech and when Defendants allegedly instituted a sham investigation against him was too great a gap for the Court to plausibly infer causation between the protected speech and Defendant's acts. See [46, at 7–12.] Consequently, the Court dismissed the claim with leave to file an amended complaint consistent with that ruling.

Plaintiff now alleges several other instances of retaliatory conduct between his protected speech during period from October 2013 to June 2014 and March 2015 when Defendants placed him on leave and initiated a sham investigation. As noted above, Plaintiff alleges that Defendants: (1) purposely delayed his order of specialty body armor, (2) denied two separate requests to move his residence, and (3) denied Plaintiff's request in January 2015 to have a "moving radar" installed in his vehicle. [52, ¶¶ 17–18, 22, 23.] Additionally, Plaintiff further alleges that in August 2014, a co-worker informed him that "he needed to ‘stay under the radar’ because the Defendants were watching him." [Id. ¶ 21.] The co-worker also informed him that Defendants had been sending emails to each other about him for several months. [Id. ]

As the Court previously explained, a prima facie case of First Amendment retaliation under § 1983 requires a plaintiff to show (1) that his speech was constitutionally protected; (2) that he has suffered a deprivation that is likely to deter free speech; and (3) his speech was "at least a motivating factor in the employer's actions." Wheeler , 2018 WL 835353, at *3. While conceding the first element, Defendants maintain that these new allegations of retaliatory conduct do not constitute a deprivation likely to deter free speech and that even with these new allegations, the Court may not infer that Plaintiff's protected conduct led to the alleged retaliation. The Court address each contention in turn.

a. Adverse Action

"Retaliation need not be monstrous to be actionable under the First Amendment; it need merely create the potential for chilling employee speech on matters of public concern." DeGuiseppe v. Vill. of Bellwood , 68 F.3d 187, 192 (7th Cir. 1995).⁴ In fact, the Seventh Circuit has expressly rejected the notion that plaintiffs alleging retaliation for constitutionally protected speech under § 1983 must allege the same kind of "adverse employment action" as required to state a claim under Title VII or other federal antidiscrimination suits. Power v. Summers , 226 F.3d 815, 821 (7th Cir. 2000). As the court explained in Smith v. Fruin , "even minor forms of retaliation can support a First Amendment claim, for they have may have just as much of a chilling effect on speech as more drastic measures." 28 F.3d 646, 649 n.3 (7th Cir. 1994). " ‘[A] campaign of petty harassment’ and ‘even minor forms of relation,’ ‘diminished responsibility, or false accusations’ " can be actionable under the First Amendment." Power , 226 F.3d...