Richardson v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

Cody Richardson )

)

)

Plaintiff, )

)

v. ) Case No. 22-cv-3126

)

Dee Dee Brookhart, Daniel )

Downen, Rob Jeffreys, )

Camile Lindsay, John Eilers, )

)

)

Defendants. )

OPINION

COLLEEN R. LAWLESS, U.S. District Judge:

Before the Court is Defendants Dee Dee Brookhart, Daniel Downen, Rob Jeffreys,

Camile Lindsay, and John Eilers’s Motion to Dismiss. (Doc. 9, Defs’ Mot. Dismiss). For

the following reasons, the Motion to Dismiss is GRANTED without prejudice.

I. BACKGROUND

On July 8, 2022, Plaintiff Cody Richardson filed a complaint alleging that the

defendants violated his rights under the Fourteenth Amendment and 42 U.S.C. § 1983.

(Doc. 1, Pl. Compl.). On November 7, 2022, Defendants Brookhart, Downen, Jeffreys,

Lindsay, and Eilers moved to dismiss based on Richardson’s failure to state a claim. (Doc.

9; Doc. 10, Defs’ Mot. Dismiss Mem.).

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Il. FACTUAL ALLEGATIONS

On December 1, 2020, Richardson was involved in an incident with an inmate,

during which Richardson used pepper spray on the inmate. (Doc. 1, Pl. Compl. 3).

Richardson alleged that he fully complied with the Department of Corrections’ use of

force policy. (Id.). The relevant policy states: “Force shall be employed only as a last resort

or when other means are unavailable or inadequate, and only to the degree reasonably

necessary to achieve a permitted purpose.” 20 Il. Adm. Code 501.30. “Force” is defined

as “physical contact used to coerce or prevent some action on the part of a committed

person, and the use of chemical agents.” 20 III. Adm. Code 501.20. Richardson also alleged

that Lindsay and Jeffreys have insisted that employees be seriously disciplined and

discharged following the use of force against an inmate, due to their view that force

should never be used. (Doc. 1, at 3).

On April 28, 2021, Richardson was the subject of an employee review board

hearing before Downen. (Doc. 1, at 3). Downen recommended that Richardson be

suspended for a period of 10 days. (Id. at 4). Brookhart recommended that Richardson be

suspended for 7 days. (Id.). Jeffreys, Lindsay, and Eilers determined that Richardson be

terminated from his position of employment, and he was terminated on June 25, 2021.

(Id.). Later, Richardson was reinstated but served a period of suspension. (Id.).

Richardson now contends that the use of force policy was not applied to him, and

that he was instead subject to the unwritten rule devised by Lindsay and Jeffreys. (Doc.

1, at 4). He argues that the unwritten rule provided no notice that his use of force was

prohibited. (Id. at 5). Thus, he believes the unwritten rule is unconstitutionally vague.

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In their combined motion to dismiss, Defendants allege Richardson has failed to

sufficiently bring a claim because he was disciplined for violating the rule as written.

(Doc. 10, Defs’ Mot. Dismiss Mem., 3). Richardson responded by arguing that the

unwritten rule is vague because he was not aware that the unwritten rule would govern

his conduct. (Doc. 11, Pl.’s Response to Mot. Dismiss, 5). Further, he contends a factual

dispute exists because Defendants suggest he was disciplined under the written policy

instead of the unwritten rule. (Id. at 6).

Ill. DISCUSSION

A. Legal Standard

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See

Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). When considering a

motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most

favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all

reasonable inferences in plaintiff's favor. Christensen, 483 F.3d at 458.

To state a claim for relief, a plaintiff need only provide a short and plain statement

of the claim showing he is entitled to relief and giving defendants fair notice of the claims.

Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011). However, the complaint must set forth

facts that plausibly demonstrate a claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 547 (2007). A plausible claim is one that alleges factual content from which the Court

can reasonably infer that defendants are liable for the misconduct alleged. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

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B. The Defendant’s Use of Force Policy

It is a basic principle of due process that a statute or policy is void for vagueness

if its prohibitions are not clearly defined, like when it “fails to provide a person of

ordinary intelligence fair notice of what is prohibited.” Brown v. Chicago Bd. of Educ., 824

F.3d 713, 716-17 (7th Cir. 2016); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). In

order to survive a vagueness challenge, the policy must provide fair notice of conduct

that is forbidden or required. F.C.C. v. Fox TV Stations, Inc., 567 U.S. 239, 253 (2012).

A public employee may challenge the rules pursuant to which he was disciplined

on the basis that they are void for vagueness. See Greer v. Amesqua, 212 F.3d 358, 369 (7th

Cir. 2000). An employee code of conduct does not need to be as clear as a criminal Jaw.

Brown, 824 F.3d at 717. A “regulation is not vague because it may at times be difficult to

prove an incriminating fact but rather because it is unclear as to what fact must be

proved.” F.C.C., 567 U.S. at 253. Further, the government acting in the role of employer

enjoys much more latitude in crafting reasonable work regulations for its employees than

it does in crafting regulations applicable to the general public. Greer, 212 F.3d at 369.

Typically, the existence of a policy, custom, or practice is a question of fact for the

jury. But even at this stage, the plaintiff cannot simply allege that there is a policy in place;

rather he must plead facts that, if true, would give rise to a plausible inference that such

a policy exists. See Twombly, 550 U.S. at 555 (The “[fJactual allegations must be enough to

raise a right to relief above the speculative level.”). “[T]he plaintiff must give enough

details about the subject-matter of the case to present a story that holds together.”

Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010), With formal or written policies,

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satisfying this pleading standard is simple: the plaintiff can simply allege what the policy

is and where it is codified. With informal, unwritten policies, customs, or practices, the

plaintiff can plead either a pattern of multiple similar instances of misconduct or use

other evidence to demonstrate the policy's existence. See Powe v. City of Chicago, 664 F.2d

639, 650 (7th Cir. 1981) (“[W]here the plaintiff alleges a pattern or a series of incidents of

unconstitutional conduct, then the courts have found an allegation of policy sufficient to

withstand a dismissal motion.”). Put simply, the expectation at this stage is that a plaintiff

must allege specific facts regarding why he believes an unwritten policy exists and what

that policy is.

For example, in McCauley v. City of Chicago, 671 F.3d 611, 618-19 (7th Cir. 2011), the

Court held that the plaintiff did not allege enough factual content to prove his claim of

an unwritten policy. The Court stated that for the claim to survive a motion to dismiss,

the plaintiff's complaint must have included enough factual allegations to allow the

Court to draw the reasonable inference that the unconstitutional policy or practice

existed. McCauley, 671 F.3d at 618. The plaintiff's failure to support the allegation was

fatal to the claim, particularly because the allegations set forth by the plaintiff were also

consistent with lawful conduct. Id. at 619.

Here, the written policy gives fair notice of what conduct is prohibited. The written

policy states: “Force shall be employed only as a last resort or when other means are

unavailable or inadequate, and only to the degree reasonably necessary to achieve a

permitted purpose.” 20 II]. Adm. Code 501.30. “Force” is defined as “physical contact

used to coerce or prevent some action on the part of a committed person, and the use of

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chemical agents.” 20 Ill. Adm. Code 501.20. Thus, the use of pepper spray was clearly

prohibited unless it was a last resort. Therefore, the prohibition listed in the written code

of conduct is not vague as applied. Richardson was properly on notice that his use of

pepper spray could lead to disciplinary action. Indeed, Richardson himself does not

argue that the written policy was unconstitutionally vague but, rather, focused on the

application of the alleged unwritten policy. (Doc. 1, at 4; Doc. 11, at 5).

To that end, Richardson claims that he was subject to “unspoken and arbitrary

rules” that were unconstitutionally vague. (Doc. 11, at 6). Richardson avers that the

unwritten rule was that employees who use force against an inmate should be seriously

disciplined and discharged, due to Lindsay and Jeffreys’s view that force should never

be used against inmates. (Doc. 1, at 3). But, just as the plaintiff in McCauley, Richardson

failed to include any specific factual allegations explaining why he believed the unwritten

policy existed. See McCauley, 671 F.3d at 618. Without that factual support, there is not a

plausible inference that such a policy exists and that Richardson is entitled to relief. See

Twombly, 550 U.S. at 555.

IV. CONCLUSION

For these reasons, Defendants’ Motion to Dismiss under Rule 12(b)(6) is

GRANTED without prejudice. Pursuant to Federal Rule of Civil Procedure 15(a)(2), the

Court grants leave for Richardson to file an amended complaint within 21 days of this

Order.

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ENTER: May 15, 2023

COLLEEN LESS

ITED STAT TRICT JUDGE

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