Spalding v. City of Chi.

Gary Scott Feinerman

Motions denied.

Amanda C. Antholt, Christopher Rudolf Smith, Emily J. Stine, James M. Baranyk, Robert Wade Johnson, Smith, Johnson & Antholt, LLC, Chicago, IL, for Plaintiffs. Alan Sterling King, Francesco Michele Nardulli, Noreen H. Cull, Drinker Biddle & Reath LLP, Arlene Esther Martin, City of Chicago Department of Law, Scott J. Jebson, Christopher A. Wallace, Chicago, IL, for Defendants.

Gary Scott Feinerman, United States District Judge

Shannon Spalding and Daniel Echeverria, both officers with the Chicago Police Department (“CPD”), brought this suit under 42 U.S.C. § 1983 and Illinois law against the City of Chicago and eleven other CPD officers. The amended complaint alleges that Defendants violated the First Amendment and the Illinois Whistleblower Protection Act, 740 ILCS 174/15, by conspiring to retaliate and actually retaliating against Plaintiffs for reporting criminal misconduct by other CPD officers to the FBI and for speaking to the media about this lawsuit. Doc. 44. The City and nine of the officers (collectively, “Chicago Defendants”) have moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), and the two other officers, Juan Rivera and Debra Kirby, have adopted that motion and filed separate Rule 12(b)(6) motions. Docs. 57, 59–60. The motions to dismiss are denied.

II. Kirby's Motion to Dismiss

Kirby presses three other grounds for dismissing the claims against her. Doc. 59 at 4–8. Her arguments are considered in turn.

Kirby contends that “Plaintiffs fail to allege they suffered a deprivation by Chief Kirby likely to deter free speech” or that “any protected speech was at least a motivating factor in Chief Kirby's actions.” Id. at 6. This argument fails. The amended complaint alleges that Plaintiffs were “kicked out” of Detached Services and transferred to a less desirable unit as a result of Kirby falsely telling Cuello that she did not know of Plaintiffs' involvement in the FBI investigation. Doc. 44 at ¶¶ 45–48. Additionally, the amended complaint alleges that Plaintiffs' pre-lawsuit speech caused Kirby's retaliatory conduct. Id. at ¶ 111. Kirby maintains that her “supposed denial of knowing what Plaintiff[ ]s were working on to Cuello in May 2011 is entirely consistent with maintaining Plaintiffs' confidentiality.” Doc. 65 at 3. While that might be turn out to be true, the court at the Rule 12(b)(6) stage must draw all reasonable inferences in Plaintiffs' favor, and that inference is that Kirby lied to Cuello in an effort to undermine Plaintiffs' standing with Cuello and prompt their transfer out of Detached Services.

Kirby next argues that the conspiracy claim against her should be dismissed because it is “so conclusory that it is not entitled the assumption of truth” and because it “fails to allege that Chief Kirby reached an agreement with anyone to violate Plaintiffs' free speech rights.” Doc. 59 at 7. For the reasons discussed in Section I.C, supra, this argument fails. Iqbal does not require that the amended complaint explicitly allege that Kirby entered into an agreement to violate Plaintiffs' constitutional rights. Because the amended complaint's factual allegations make it plausible that Kirby and the other defendant officers reached an agreement to retaliate against Plaintiffs, the conspiracy claim against Kirby survives. See Geinosky, 675 F.3d at 749.

Kirby also argues that she is entitled to qualified immunity. Doc. 59 at 7. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Seventh Circuit asks two questions in determining whether a defendant is entitled to qualified immunity: “(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right [,] and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Hernandez v. Sheahan, 711 F.3d 816, 817 (7th Cir.2013).

Kirby focuses on the second inquiry, arguing that Plaintiffs fail to allege that she violated a clearly established right. Doc. 59 at 7. For a right to be clearly established, it “must be specific to the relevant factual context of a cited case and not generalized with respect to the amendment that is the basis of the claim.” Surita v. Hyde, 665 F.3d 860, 868 (7th Cir.2011). Here, it was clearly established at the time of Kirby's conversation with Cuello that the First Amendment prohibited facilitating the transfer of public employees to less desirable positions because of their involvement in uncovering government misconduct. See Spiegla v. Hull , 371 F.3d 928, 936 (7th Cir.2004) (holding that the plaintiff's First Amendment rights were violated where the defendants facilitated her transfer to an undesirable post in retaliation for reporting other correctional officers' misconduct); see also Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 648 (7th Cir.2013) (holding that the defendants were not entitled to qualified immunity because “it was clearly established at the time of the [defendants'] actions that the First Amendment prohibited investigating and then suspending and terminating a public employee because he had helped another employee pursue a lawsuit aimed at uncovering and proving public corruption”). Kirby therefore is alleged to have violated a clearly established constitutional right.

Like Kirby, Rivera raises three other grounds for dismissing the claims against him. Doc. 60 at 1–2. And as with Kirby, his arguments are without merit.

Rivera contends that his mere refusal to initiate an investigation into the alleged retaliation against Plaintiffs does “not support a protected constitutional right that was violated.” Doc. 60 at 2. This contention misunderstands the nature of Plaintiffs' claim. Plaintiffs do not assert that Rivera was constitutionally required to initiate an investigation; rather, they claim that Rivera retaliated against them—by allowing the ongoing retaliation by others—for their involvement in the FBI investigation. Doc. 44 at ¶ 71 (alleging that “[i]n repeatedly refusing to initiate a[n] ... investigation into the hostile work environment, Defendant Chief Rivera condoned, encouraged, agreed to and allowed the retaliation to continue unabated”). This is sufficient to state a First Amendment retaliation claim against Rivera.

Rivera next contends that Plaintiffs do not state a viable conspiracy claim against him because “[n]othing is alleged [in the amended complaint] other than the simple conclusion that he conspired.” Doc. 67 at 3. This argument is materially identical to Kirby's argument for dismissing the conspiracy claim against her, and it fails for the same reason.

Rivera argues that he is entitled to qualified immunity because “[t]here was no constitutional right to have an internal investigation initiated upon a complaint by Plaintiffs to investigate their belief that they were experiencing retaliation by certain Chicago police officers.” Doc. 60 at 2. Again, Rivera misunderstands Plaintiffs' claim. Nowhere do Plaintiffs claim a constitutional right to have an investigation into their complaints of retaliation. Instead, they allege that Rivera violated the First Amendment by retaliating against them for engaging in protected speech. Moreover, Rivera offers no authority or analysis in the one paragraph of his motion he devotes to qualified immunity, which forfeits the point in any event. See Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir.2012); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir.2011).

For the foregoing reasons, Defendants' motions to dismiss are denied. Defendants shall answer the amended complaint by April 3, 2014.