Jackson v. Joliet Police Department, The

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID C. JACKSON,

Plaintiff, No. 19 C 7284

v. Judge Thomas M. Durkin

CITY OF JOLIET; AL ROECHNER; JOSEPH

ROSADO; JOHN PERONA; ED CLARK;

JASON OPIOLA; and FRANK BALOY,

Defendants.

MEMORANDUM OPINION AND ORDER

David Jackson, a Joliet police detective, alleges that certain Joliet and Crest

Hill, Illinois police officers, and one private citizen named Frank Baloy, conspired to

violate his civil rights by retaliating and discriminating against him based on his race

in violation of Title VII and various other federal and state law. In three motions by

Joliet, Crest Hill, and Baloy, some of the defendants have moved to dismiss some of

the claims for failure to state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6). R. 27; R. 36; R. 40. The Joliet motion is denied and the Crest Hill and Baloy’s

motions are granted.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

A. Jackson Experiences Racism

in the Joliet Police Department

Jackson is a Joliet police officer who is Black. R. 24 ¶ 24. He became a Joliet

police officer in 1995 and was promoted to detective five years later. Id. ¶¶ 24-25.

Jackson alleges that the Joliet Police Department has had a racist culture for

many years. Id. ¶¶ 17-23. Specifically, Jackson alleges that defendant Officers Marc

Reid and Al Roechner took adverse actions against him based on his race. Id. ¶¶ 24-

32.

In 2007, defendant Reid was Jackson’s supervisor. Jackson alleges that Reid

harassed him because Jackson is Black. Jackson reported Reid’s conduct but was told

that Reid would not be investigated. Id.

In 2009, defendant Roechner and another Joliet officer (identified in the

complaint only as “Cardwell”) gave Jackson a negative performance evaluation. Id. ¶

34. Jackson formally objected to the evaluation claiming it was based on his race. Id.

¶ 35. In 2012, the Department determined that Jackson had been held to “a less

favorable standard with regard to the 2009 evaluation.” Id. ¶ 36.

Jackson also alleges that he has been subject to “unfounded internal affairs

investigation complaints” that “have held [him] back in his career and negatively

impacted his earning potential.” Id. ¶ 37. Jackson’s complaint does not describe these

investigations. The only negative affect on his career Jackson alleges is that he was

denied a detective position in 2013. Id. ¶ 42.

B. The Allen Lawsuit and Investigation

In 2018, defendant Roechner became the Chief of the Joliet Police Department,

and defendant Reid was promoted to Deputy Chief. Id. ¶¶ 47, 48. That same year

Jackson was elected President of the Joliet Black Police Officers Association

(“BPOA”). Id. ¶ 49.

BPOA member Lionel Allen sued Joliet, defendant Reid, and another officer

for race discrimination and retaliation. Id. ¶ 53. Despite Reid being a defendant in

Allen’s case, Roechner permitted Reid to participate in an internal investigation of

Allen. Id. ¶ 91. Around December 2018, in his role as BPOA president, Jackson

prepared a letter to the National Black Police Association (“NBPA”) expressing

concern about Allen’s case and defendant Roechner’s poor track record on issues of

race in the Department. Id. ¶¶ 56-58.

The next month, January 2019, Roechner recommended that Allen be fired. Id.

¶ 61. Jackson and Roechner met to discuss this recommendation. Id. ¶ 63. Defendant

John Perona, who is another Joliet Deputy Chief, was also present at the meeting.

Id. Roechner told Jackson that he had seen a copy of Jackson’s letter to the NBPA

and he criticized Jackson for drafting it. Id. ¶ 65. Roechner also expressed anger

because Jackson had recommended to the Joliet City Manager a “diversity candidate”

for an open deputy chief position. Id. Jackson alleges that Roechner told him he did

not like the candidate and that he “did not care about diversity.” Id.

About a month later, on February 1, 2019, Jackson made a statement to a

newspaper criticizing Roechner’s recommendation that Allen be fired and explaining

that the BPOA wanted a “fair and non-biased hearing” for Allen. Id. ¶¶ 75-78.

Defendant Lieutenant Joseph Rosado, and non-party Sergeant Rouse, filed internal

affairs charges against Jackson for this statement to the newspaper, accusing him of

making a public statement without authorization in violation of the Department’s

General Order 8-4. Id. ¶ 79. Jackson alleges that Rosado told him that Roechner and

a deputy chief ordered him to file the charges. Id. ¶ 81. Jackson was suspended for

one day based on the charges. Id. ¶ 83.

By contrast, Jackson alleges that a white officer faced no discipline for similar

actions. Id. ¶ 84. Jackson claims that non-party Sergeant Cardwell, who is white,

sent an email to the Joliet Board of Fire and Police Commissioners accusing them of

neglect and questioning their integrity, and sent a copy of the email to a newspaper.

Id. ¶ 84. Cardwell also argued with the Commissioners at a public meeting, and his

statements were reported in the media. Id. ¶ 85. Then Cardwell made a statement to

the media accusing Joliet’s mayor of trying to make the Police Department his

“political playground.” Id. ¶ 86. Jackson alleges that Cardwell was not investigated

or disciplined for any of these public statements. Id.

Later in February, Jackson called a public meeting on behalf of the BPOA to

discuss Allen’s treatment. Id. ¶ 88. Defendants Roechner, Perona, and Reid were in

attendance, among a number of other officers and citizens. Id. ¶ 89. Jackson again

criticized Roechner’s recommendation that Allen be fired and questioned whether it

was appropriate for Reid to participate in Allen’s investigation. Id. ¶ 90-91. Jackson

alleges that Roechner berated him at the meeting for questioning him and the

integrity of the investigation. Id. ¶ 92-93.

C. Jackson’s Arrest

A little more than a month later, on the night of March 9, 2019, Jackson went

on a date in Crest Hill, Illinois. Id. ¶ 96-97. At some point that night, Jackson’s date

called the Crest Hill police department to accuse Jackson of battery. Id. ¶¶ 96-101.

Jackson alleges that Roechner told other Joliet officers that he sent defendant Rosado

to the Crest Hill Police Department to “make sure Crest Hill didn’t screw up the

charges.” Id. ¶ 106.

That night, after Jackson had apparently returned home, Rosado called him

from the Crest Hill police station to have Jackson speak to defendant Crest Hill

Officer Jason Opiola. Id. ¶ 107. Jackson alleges he told Opiola that surveillance video

from a bar owned by defendant Frank Baloy would show that his date’s injuries were

caused when she fell at Baloy’s bar. Id. ¶¶ 108, 124. Jackson alleges that Officer

Opiola and another Crest Hill Officer, defendant Ed Clark, determined there was

probable cause to arrest Jackson, and obtained a warrant and a $20,000 bond. Id. ¶¶

109-10. Jackson alleges that $20,000 is two to four times greater than the normal

bond for the level of charges he faced. Id. ¶ 110.

At 4 a.m. on March 10, Rosado again called Jackson to tell him that Roechner

ordered Jackson to report to the Joliet Police Station immediately. Id. ¶ 111. When

he arrived, Jackson was arrested and charged with two counts of misdemeanor

domestic battery and placed on administrative duty. Id. ¶ 112-14.

Jackson alleges that Opiola and Clark permitted Rosado to participate in Crest

Hill’s investigation of the charges against Jackson, including interviewing Jackson’s

accuser and her son. Id. ¶¶ 116-19. Rosado also conducted Joliet’s internal

investigation. Id. ¶ 120. Rosado did not review the surveillance video from Baloy’s

bar. Id. ¶ 121.

Jackson’s attorney attempted to acquire the video, but Baloy refused to provide

it without a subpoena. Id. ¶¶ 123-25. Jackson alleges that Baloy did so at the behest

of the Joliet Police Department. Id. ¶ 125. Baloy is related to a Joliet police officer.

Id. ¶ 129. By the time Jackson obtained a subpoena, the surveillance video had

“looped,” meaning that it had recorded more recent events over the older events

Jackson was interested in viewing. Id. ¶ 128. The charges against Jackson were

ultimately dismissed. Id. ¶ 134.

D. Jackson’s Claims

Jackson filed an EEOC charge against Defendants on July 18, 2019. Id. ¶ 143.

He alleges that since he filed the EEOC charge, Joliet has taken the following actions

against him: (1) stating that he is not in “good standing,” which has prevented

Jackson from obtaining certain housing; (2) refusing to pay for a BPOA member to

attend the NBPA national conference, as has been customary; (3) filing “frivolous”

internal affairs charges against Jackson on December 30, 2019 and January 9, 2020;

(4) maintaining “an unlawful ‘no contact’ order against Jackson”; and (5) claiming

that Jackson is under investigation. Id. ¶ 148.

Jackson filed this lawsuit on November 4, 2019. He brings federal

discrimination and retaliation claims, and state law claims regarding the alleged

impropriety of his arrest and prosecution. He makes his claims via seven counts in

his complaint:

Count I claims violations of the First, Fourth, Fifth, and Fourteenth

Amendments, pursuant to 42 U.S.C. § 1983, against all Defendants except

Baloy;

Count II claims a conspiracy to violate Jackson’s civil rights under 42 U.S.C. §

1985, against all Defendants, including Baloy;

Count III claims race discrimination and retaliation in employment in violation

of Title VII, 42 U.S.C. § 2000, against the City of Joliet;

Count IV claims violation of 42 U.S.C. § 1981 against all Defendants except the

City of Joliet and Baloy;

Count V claims intentional infliction of emotional distress against all

Defendants;

Count VI claims false arrest and imprisonment against all Defendants except

Baloy; and,

Count VII claims malicious prosecution against all Defendants except Baloy.

Analysis

Three motions to dismiss have been filed: (1) a motion by the City of Joliet and

the individual Joliet officers, R. 40; (2) a motion by Crest Hill Officers Opiola and

Clark, R. 36; and (3) a motion by Baloy, R. 27. The heart of Jackson’s complaint, his

federal claims against Joliet and Roechner, are not at issue because Joliet and

Roechner have not moved to dismiss them.1

I. Joliet’s Motion

Joliet’s motion makes the following arguments: (1) the civil rights claims

(Count I) against Rosado and Perona should be dismissed based on qualified

immunity; (2) the Section 1981 claim (Count IV) against Rosado and Perona should

be dismissed for failure to allege an adverse action; (3) the intentional infliction of

emotional distress claim (Count V) against Perona should be dismissed because

Perona’s conduct was not extreme and outrageous; (4) the false arrest claim (Count

VI) should be dismissed because the Joliet defendants were not responsible for

Jackon’s arrest; and (5) the malicious prosecution claim (Count VII) should be

1 Joliet initially argued that Jackson had failed to administratively exhaust his Title

VII claims but withdrew that argument after Jackson attached the EEOC Right to

Sue Letter to his opposition brief. See R. 55 at 9.

dismissed because the Joliet defendants did not play a substantial role in Jackson’s

prosecution.

A. Qualified Immunity

To establish qualified immunity, a defendant must show that his conduct did

not violate a clearly established constitutional right. See Lovett v. Herbert, 907 F.3d

986, 991 (7th Cir. 2018). Rosado and Perona argue that there is no clearly established

constitutional right to be free from a retaliatory or improper investigation. Although

neither the Supreme Court nor the Seventh Circuit have addressed this issue, several

Circuits have found that a retaliatory investigation is actionable under the First

Amendment. See Hernandez v. Cook Cty. Sheriff’s Office, 2017 WL 4535982, at *7

(N.D. Ill. Sept. 25, 2017) (citing cases). Moreover, Jackson was not merely

investigated. He was arrested, allegedly without probable cause. Defendants have not

argued that a retaliatory arrest without probable does not violate a clearly

established constitutional right. They also have not argued that Jackson failed to

plausibly allege that his arrest lacked probable cause.

Furthermore, even if a retaliatory arrest does not violate a clearly established

constitutional right, Jackson claims that Defendants also acted with racially

discriminatory motivation. He claims that he was suspended, and later arrested, not

only because he spoke out in his role as BPOA president against what he perceived

to be racially motivated actions against Officer Allen but also because he (Jackson) is

Black. He claims that Joliet and Roechner have taken numerous actions against him

not only because he filed an EEOC charge regarding his suspension and arrest but

also because he is Black. Suspending and arresting a person because that person is

Black is a clear violation of the Fourteenth Amendment. Rosado and Perona do not

argue otherwise.

Perona also argues that the specific allegations against him do not implicate a

constitutional right. Jackson makes the following allegations against Perona: (1) he

attended a meeting with Roechner in order to intimidate Jackson; (2) with Roechner,

he jointly ordered Jackson to return to the Joliet Police Station where he was

arrested; and (3) he commented at roll call meetings that Jackson was “guilty of a

crime.” Of course, Jackson does not claim that these individual actions violated his

rights. Rather, he makes these allegations to show Perona’s participation in the

conspiracy to suspend and arrest him in retaliation for his public comments and

because he is Black. It maybe that discovery will show that Perona did not sufficiently

participate in the events to establish causation and liability, either directly or in

conspiracy with the other defendants. But Perona does not argue in his motion that

Jackson has failed to plausibility allege Perona’s participation in the otherwise well

pled constitutional violations.

Therefore, Perona’s and Rosado’s motion to dismiss based on qualified

immunity is denied.

B. Section 1981

“To prevail on either a discrimination or retaliation claim under Section 1981

in the employment context, a plaintiff must allege that her employer subjected her to

adverse actions.” Adam v. Obama for America, 210 F. Supp. 3d 979, 988 (N.D. Ill.

2016). Perona and Rosado argue that their “alleged actions do not qualify as adverse

job actions.” This argument misses the point. Jackson’s allegations about Perona’s

and Rosado’s “actions” are not the “adverse actions” themselves that he alleges for

purposes of his claims. The adverse actions Jackson alleges are his suspension and

arrest, and Joliet’s continued statements that he is not in good standing as an officer,

which certainly qualify at this stage of the case as “adverse job actions.” Jackson’s

allegation about Perona’s and Rosado’s conduct are intended to demonstrate that

they participated in the conspiracy against him making them liable for the adverse

actions he suffered. Therefore, Perona’s and Rosado’s motion to dismiss the Section

1981 claim is denied.

C. Intentional Infliction of Emotional Distress

Under Illinois law, the elements of an intentional infliction of emotional

distress claim are: “(1) the defendants’ conduct was extreme and outrageous; (2) the

defendants knew that there was a high probability that their conduct would cause

severe emotional distress; and (3) the conduct in fact caused severe emotional

distress.” Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 864 (7th

Cir.2010) (citing Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992)). “To

meet the ‘extreme and outrageous’ standard, the defendants’ conduct ‘must be so

extreme as to go beyond all possible bounds of decency, and to be regarded as

intolerable in a civilized community.’” Swearnigen-El, 602 F.3d at 864 (quoting

Kolegas, 607 N.E.2d at 211). In determining whether conduct meets the “extreme and

outrageous” standard, courts consider three main factors: (1) “the more power or

control the defendant has over the plaintiff, the more likely the conduct will be

deemed extreme”; (2) “whether the defendant reasonably believed its objective was

legitimate”; and (3) “whether the defendant was aware the plaintiff was ‘peculiarly

susceptible to emotional distress, by reason of some physical or mental peculiarity.’”

Franciski v. Univ. of Chi. Hosp., 338 F.3d 765, 769 (7th Cir. 2003) (quoting McGrath

v. Fahey, 533 N.E.2d 806, 811 (Ill. 1998)). In essence, the Illinois Supreme Court has

explained that conduct is of an extreme and outrageous “where recitation of the facts

to an average member of the community would arouse his resentment against the

actor, and lead him to exclaim, ‘Outrageous!’” Doe v. Calumet City, 641 N.E.2d 498,

507 (Ill. 1994).

The Seventh Circuit has held that “typical disagreements or job-related stress

caused by the average work environment” are insufficient to support a claim for

intentional infliction of emotional distress. See Lewis v. Sch. Dist. # 70, 523 F.3d 730,

747 (7th Cir. 2008). But such conduct can be extreme and outrageous when the

employer or supervisor knows that there is no legitimate objective for the disciplinary

investigation. See Franciski, 338 F.3d at 769. In such circumstances, the “extreme

and outrageous nature of the conduct may arise not so much from what is done as

from abuse by the defendant of some relation or position which gives him actual or

apparent power to damage the plaintiff's interests. The result is something very like

extortion.” Milton v. Ill. Bell Tel. Co., 427 N.E.2d 829, 832 (Ill. App. Ct. 1st Dist. 1981)

(citation omitted). In the employment context, “courts have found extreme and

outrageous behavior to exist . . . where the employer clearly abuses the power it holds

over an employee in a manner far more severe than the typical disagreements or job-

related stress caused by the average work environment.” Honaker v. Smith, 256 F.3d

477, 491 (7th Cir. 2001). Indeed, Illinois courts have held that a “sham” or improperly

motivated investigation into, and discipline of, an employee’s conduct can be “extreme

and outrageous.” See Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 868 (Ill.

App. Ct. 1st Dist. 2000); see also Vickers v. Abbott Labs., 719 N.E.2d 1101, 1115 (Ill.

App. Ct. 1st Dist. 1999) (“a conspiracy or a systematic effort to remove plaintiff from

his managerial position” in the employment context can be extreme and outrageous).

Here, Jackson alleges that Perona participated in a sham investigation of

Jackson motivated by racial dissemination and retaliation. Perona argues that when

an arrestee brings an IIED claim arising out of his arrest, “there must be more than

just a lack of probable cause or some excessive force.” R. 55 at 16. But the something

“more” here is that Jackson claims his arrest was the product of retaliatory and

discriminatory motive. Moreover, Perona’s and the other defendants’ conduct did not

merely expose Jackson to the threat of the loss of his employment; Jackson faced the

threat of imprisonment as well. Perona and the defendants surely knew that the

threat of imprisonment would cause Jackson severe emotional distress, especially

since he is a police officer. Moreover, if Perona’s actions were in fact motivated by

discrimination and retaliation, causing such distress was likely his goal. Therefore,

Perona’s motion to dismiss Jackson’s claim for intentional infliction of emotional

distress is denied.

D. False Arrest

Joliet argues that Jackson has failed to state a claim for false arrest because

“the Joliet Defendants were [not] the individuals who literally restrained Plaintiff, or

otherwise directed the Crest Hill Defendants to arrest Plaintiff,” and “the Joliet

Defendants were [not] the ‘sole source’ of the domestic violence allegations lodged

against Plaintiff that led to his arrest.” R. 55 at 18. But Jackson alleges that he was

arrested by Joliet police officers, who the Court can plausibly infer were subject to

the command of Chief Roechner and Deputy Chief Perona. Furthermore, Jackson has

alleged that Roechner and Rosado communicated with Crest Hill police officers and

were involved in the decision to seek a warrant for Jackson’s arrest. The case Joliet

cites to argue that Illinois law requires them to have been the “sole source” of the

complaint concerns a false arrest claim made against a “private party.” See Shea v.

Winnebago Cty. Sheriff’s Office, 2014 WL 4449605, at *20 (N.D. Ill. Sept. 10, 2014)

(“In Illinois, when a plaintiff seeks to hold a private party liable for false

imprisonment because the private party provided information to police, the plaintiff

must allege that the defendant was the “sole source” of information or allege that the

defendant actually “commanded[ed], request[ed], or direct[ed]” authorities to arrest

plaintiff.”). The Joliet Defendants are not “private parties,” but are police officers who

participated in Jackson’s investigation and arrest. Thus, the “sole source” rule is not

relevant here.

Joliet argues that Roechner is entitled to immunity for the false arrest claim

under Illinois’s Tort Immunity Act because “Roechner’s decision to order Plaintiff

back to the City Police Station was a discretionary police decision, which is immune

from liability.” But Jackson does not object merely to being ordered to show up at the

Joliet Police Station. He objects to the fact that he was arrested upon arrival, and

plausibly claims that Roechner is liable for that arrest, in part because he ordered

Jackson to return to the station. Joliet does not, and cannot, argue that Roechner is

entitled to immunity for an arrest made with retaliatory and discriminatory intent,

lacking probable cause, as Jackson alleges. See Lonzo v. City of Chicago, 461 F. Supp.

2d 661, 665 (N.D. Ill. 2006) (Section 2-201 of the Tort Immunity Act “does not protect

public employees where their acts were based on ‘corrupt or malicious motives.’”).

Therefore, Joliet’s motion to dismiss Jackson’s false arrest claim is denied

E. Malicious Prosecution

The first element of a malicious prosecution claim in Illinois is “the

commencement or continuance of an original criminal or civil judicial proceeding by

the defendant.” Beaman v. Freesmeyer, 131 N.E.3d 488, 495 (Ill. 2019). “In other

words, the relevant inquiry is whether the officer proximately caused the

commencement or continuance of the criminal proceeding.” Id. at 496.

Joliet argues that Jackson fails to allege they caused his prosecution because

none of the Joliet Defendants played a “significant role” in it. This argument,

however, is based on isolated analysis of each individual defendant’s conduct apart

from the others. This argument ignores Jackson’s claim that Defendants conspired

against him making them jointly liable. When Jackson’s allegation against all

Defendants are taken as whole, the plausibly of Jackson’s claim is apparent. He

plausibly alleges that the Joliet Defendants had animosity towards him because of

his criticism of the Department and because he is Black. He also plausibly alleges

that he was investigated and arrested without probable cause. And he plausibly

alleges that the Joliet Defendants immediately sought involvement in the

investigation and were granted authority to conduct it. From these allegations, the

Court can infer that Crest Hill sought an arrest warrant for Jackson at the Joliet

Defendants’ behest. And the Joliet Defendants arrested Jackson at the Joliet Police

Station. These allegations are sufficient to state a claim that the Joliet Defendants

played a “significant role” in Jackson’s prosecution. Therefore, Joliet’s motion to

dismiss Jackson’s malicious prosecution claim is denied.

II. Crest Hill’s Motion

Crest Hill’s motion seeks dismissal of only the Section 1981 claim (Count IV)

against Opiola and Clark arguing that Jackson fails to allege discriminatory intent.

Section 1981 provides that “[a]ll persons . . . shall have the same right in every State

and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 42

U.S.C. § 1981(a). The statute protects both the privilege to make and enforce

contracts, as well as benefits provided by the contract. Id. § 1981(b) (The phrase

“make and enforce contracts” means “the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.”). The statute covers not only conduct by

the contracting parties, but third parties who act to impair protected privileges. See

Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 896 (7th Cir. 2015)

(recognizing that third-parties may be liable under the statute for tortiously

interfering with an employee's relationship with her employer for racial reasons);

A.H. Employee Co. v. Fifth Third Bank, 2012 WL 686704, at *13 (N.D. Ill. Mar. 1,

2012) (“under section 1981, individuals who are personally involved in impairing the

right to contract may be held liable”); Garcia v. Rush-Presbyterian-St. Luke's Medical

Center, 80 F.R.D. 254, 267 (N.D. Ill. 1978) (“[A] third party's interference with rights

guaranteed by section 1981 will subject such a person to personal liability.”). The

statute prohibits only intentionally racially discriminatory conduct. See Morris v.

Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (“To establish a claim under § 1981,

the plaintiffs must show that . . . the defendant had an intent to discriminate on the

basis of race[.]”).

Opiola and Clark argue that Jackson’s allegations do not plausibly

demonstrate that they intended to discriminate against Jackson based on his race.

Jackson has plausibly alleged that the Joliet defendants were motivated by racial

discrimination because he has alleged that they were aware of his complaints about

racism in the Department, his statements to the press, and the fact that he is Black.

Jackson has not alleged, however, that Opiola and Clark had that knowledge. See

Smith v. Bray, 681 F.3d 888, 905-06 (7th Cir. 2012) (“individual liability” for

conspiracy to violate civil rights requires showing that each conspirator “shared a

common unlawful motive”); Walton v. First Merchants Bank, 772 F. App’x 349, 351

(7th Cir. 2019) (“factual allegations [are required] to support a reasonable inference

of discriminatory intent.”); Naguib v. Ill. Dep’t of Prof’l Regulation, 986 F. Supp. 1082,

1092 (N.D. Ill. 1997) (“[B]ald assertions of discriminatory animus behind the

conspirators’ action, unsupported by any meaningful, factual allegations is not

enough to withstand a motion to dismiss.”). Jackson has plausibly alleged that Opiola

and Clark agreed to arrest Jackson without probable cause, and notably, Opiola and

Clark have not moved to dismiss the false arrest or malicious prosecution claims

against them. But there is simply no allegation in the complaint permitting the

inference that Opiola and Clark were aware of the Joliet defendants’ alleged

discriminatory and retaliatory motivation. Therefore, Opiola and Clark’s motion to

dismiss the Section 1981 is granted.

III. Baloy’s Motion

Jackson claims that Baloy conspired with the other defendants to violate his

civil rights and that Baloy’s conduct constitutes intentional infliction of emotional

distress under Illinois law. Baloy argues that Jackson has failed to plausibly allege

that Baloy knowingly conspired with the other defendants and that he acted with the

requisite intent for either claim.

Jackson has sufficiently alleged Baloy’s agreement to withhold the

surveillance video. Baloy is “related” to a Joliet police officer and Jackson alleges that

Baloy said “the Joliet Police told him that if someone came around looking for that

video, that I should tell them to give me a subpoena.” These allegations are sufficient

to plausibly demonstrate that Baloy agreed with the Joliet defendants to withhold

the surveillance video.

However, Jackson’s allegations of discriminatory intent against Baloy suffer

from the same deficiency as his Section 1981 allegations against Opiola and Clark.

Intent can be alleged generally. But Jackson makes no allegation at all about Baloy’s

intent. See Stillwell v. Mayflower Contract Servs., Inc., 1995 WL 368898, at *5 (N.D.

Ill. June 19, 1995) (the plaintiff must allege that “each alleged conspirator had an

unconstitutional intent” (citing Cunningham v. Southlake Center for Mental Health,

Inc., 924 F.2d 106, 108 (7th Cir. 1991))) (emphasis added). As discussed, the

discriminatory and retaliatory intent of the other defendants can be plausibly

inferred from their alleged conduct and the context; for instance, the timing of the

suspension and arrest close in time to Jackson’s statements; or the allegations that

Jackson is Black and was arrested without probable cause despite (or because of) his

position as a police officer. But Baloy is not a member of the Joliet Police Department.

Jackson has not alleged that he has a personal relationship with Baloy. Jackson has

not alleged that Baloy was aware of Jackson in any way, let alone that Baloy knew

Jackson was Black. At most, Jackson has alleged that Baloy agreed with the Joliet

Defendants to withhold the videotape absent a subpoena. But without an allegation

that Baloy was aware that the Joliet defendants asked him to do this in order to harm

Jackson, Jackson has failed to allege that Baloy acted with discriminatory intent.

True, the possibility of an innocent explanation is an insufficient basis to grant a

motion to dismiss. See Geinosky v. City of Chicago, 675 F.3d 743, 750 (7th Cir. 2012)

(“[W]e cannot resolve the question of Officer Aguilar's alleged involvement on the

pleadings merely because we can imagine an innocent explanation for the alleged

actions.). But the plaintiff must plausibly allege a nefarious explanation. Here, as

with Opiola and Clark, Jackson has not made any a plausible allegation regarding

Baloy’s intent. Without an allegation of intent, the claims against Baloy must be

dismissed.

The lack of a plausible allegation of intent is also fatal to Jackson’s intentional

infliction of emotional distress claim against Baloy. Without a plausible allegation

that Baloy knew the potential consequences of withholding the video and why the

Joliet defendants were asking him to withhold it, Jackson has failed to allege that

Baloy intended to cause Jackson emotional distress.

IV. Punitive Damages

Joliet contends that Jackson’s complaint seeks punitive damages against

Joliet. Joliet argues that this claim should be dismissed because Illinois

municipalities are not liable to pay punitive damages under Illinois law. The Court

is not certain based on its reading of Jackson’s complaint that he seeks punitive

damages from Joliet. In any event, damages are not yet at issue. Decisions on

available damages will await a motion in limine or preparation of jury instructions if

this case goes to trial.

Conclusion

Therefore, Joliet’s motion [40] is denied; Crest Hill’s motion [36] is granted;

and Baloy’s motion [27] is granted. The Section 1981 claims against Opiola and Clark,

and all the claims against Baloy, are dismissed without prejudice. Jackson may file a

motion for leave to file an amended complaint if he believes he can cure the

deficiencies in these claims described in this opinion. That motion must be filed by

October 30, 2020 or dismissal of these claims will be with prejudice.

A status phone hearing is set for October 14, 2020, at which the parties should

be prepared to set a discovery schedule. Jackson should also be prepared to state

whether he intends to file a motion to leave to file an amended complaint.

ENTERED:

Aeaniee M Budler.

Honorable Thomas M. Durkin

United States District Judge

Dated: September 29, 2020

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