Connelly v. Cook County, an Illinois Municipal Corporation

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARGARET CONNELLY, )

) Case No. 19-cv-07894

Plaintiff, )

) Judge Sharon Johnson Coleman

v. )

)

COOK COUNTY ASSESSOR’S OFFICE; )

FRITZ KAEGI, individually, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is defendants’ partial motion to dismiss plaintiff’s first amended complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, defendants’

partial motion to dismiss [38] is granted in part without prejudice and denied in part.

Background

On March 22, 2021, the Court granted in part without prejudice and denied in part

defendants’ Rule 12(b)(6) motion to dismiss plaintiff’s three-count complaint. In particular, the

Court dismissed defendant Cook County, the municipality, as a named defendant in the lawsuit due

to Cook County’s inability to be held liable for the actions of Cook County Assessor Fritz Kaegi.

The Court granted plaintiff leave to file an amended complaint identifying the proper Cook County

entity. On April 15, 2021, plaintiff filed a First Amended Complaint, adding the Cook County

Assessor’s Office (“CCAO”) as a defendant. Kaegi remains a defendant. Plaintiff alleges that the

CCAO and Kaegi wrongfully terminated her employment in violation of her First Amendment right

to free speech and right to associate under 42 U.S.C. § 1983. She also asserts a claim pursuant to

Monell v. Department of Social Services. 436 U.S. 658, 98 S. Ct. 2018, 56 L.E.2d 611 (1978).

Defendants CCAO and Kaegi have brought a partial motion to dismiss the First Amended

Complaint pursuant to Rule 12(b)(6) on two grounds: (1) the CCAO is a non-suable entity; and (2)

plaintiff’s Monell claim is insufficiently pled.1

Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency

of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S. Ct. 1289, 179 L. Ed. 2d

233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual

allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551

U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam). To survive a motion to

dismiss, a plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A complaint is facially

plausible when the plaintiff alleges “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Discussion

Defendants claim that the CCAO should be dismissed from this case because it is a non-

suable entity. Additionally, defendants argue that plaintiff has insufficiently pleaded her Monell claim.

The Court addresses each argument in turn.

1 In their motion, defendants state in a footnote that the CCAO has not been served. (Dkt. 38 at 1 n.1.) On reply,

defendants again mention this point in a footnote and add (in the body of their brief) that the CCAO has still not been

served with a summons and complaint “which is improper under Federal Rule of Civil Procedure 4.” (Dkt. 44 at 1–2.)

To the extent that defendants also seek dismissal on the basis of improper service, they have failed to sufficiently make

the argument. Cursory arguments made in footnotes and arguments made for the first time in reply briefs are waived. See

White v. United States, 8 F.4th 547, 552 (7th Cir. 2021); Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, 894 F.3d 807, 817 (7th

Cir. 2018).

Whether the CCAO Is a Suable Entity

Federal Rule of Civil Procedure 17(b) provides that, for parties other than individuals and

corporations, the “[c]apacity to sue or be sued is determined . . . by the law of the state where the

court is located.” Fed. R. Civ. P. 17(b)(1)-(3); see also Magnuson v. Cassarella, 812 F. Supp. 824, 827

(N.D. Ill. 1992) (Aspen, J.) (“The federal courts look to state law to determine if a defendant is

amenable to suit.”). Under Illinois law, to be a suable entity, “a defendant must have a legal

existence, either natural or artificial.” Magnuson, 812 F. Supp. at 827 (citing Jackson v. Vill. of Rosemont,

180 Ill. App. 3d 932, 937–38, 536 N.E.2d 720, 723 (1st Dist. 1988)).

Here, neither side has pointed the Court to an opinion directly addressing whether the

CCAO is a suable entity under Illinois law, nor has this Court located any relevant case law on this

specific point. Defendants argue that the CCAO is not a suable entity, relying on cases where the

Cook County Clerk’s Office and the Cook County Sheriff’s Office were found to be improper

defendants. Plaintiff responds that, because defendants “have agreed to the entry of Consent

Decrees regulating the CCAO’s conduct,” they have effectively admitted that the CCAO is a suable

entity, and point to state court cases in which the CCAO was named as a defendant. (Dkt. 42 at 4–

6.) Again, the cases cited by the parties do not directly discuss whether the CCAO is a suable entity.

Nonetheless, case law involving a similarly structured entity—the Cook County Sheriff’s Office—

informs the Court’s decision in this case.

Under Illinois law, the Sheriff is an independently elected constitutional officer. Ill. Const.

Art. VII, § 4(c); see also DeGenova v. Sheriff of DuPage Cnty., 209 F.3d 973, 976 n.2 (7th Cir. 2000)

(citations omitted). So too is the Cook County Assessor. Ill. Const. Art. VII, § 4(c). Whether a

sheriff’s office is a legal entity capable of being sued has produced mixed results in this District. See

Zimny v. Cook Cnty. Sheriff’s Office, No. 12 C 5963, 2014 WL 4555302, at *6 (N.D. Ill. Sep. 15, 2014)

(Ellis, J.), vacated on reconsideration on other grounds, 2014 WL 7176623 (N.D. Ill. Dec. 15, 2014)

(explaining that the Cook County Sheriff’s Office “sometimes, but not always” seeks dismissal

“because it is not a legal entity capable of being sued,” and noting that numerous cases in this

District have “proceed[ed] against the Sheriff’s Office past the motion to dismiss stage”). Some

courts have concluded that the proper defendant is the sheriff in his official capacity, rather than the

sheriff’s office or department. See, e.g., Whitted v. Eve Cook Cnty. Sheriff’s Office, 12 C 2461, 2013 WL

4840488, at *2 (N.D. Ill. Sept. 10, 2013) (St. Eve., J.) (denying defendants’ motions to dismiss “based

on the parties’ oversight as to the proper, suable Defendant” but noting “the proper Defendant

should be the Cook County Sheriff”); see also Robinson v. Cook Cnty. Sheriff’s Dep’t, No. 14 C 9064,

2015 WL 2375390, at *2 (N.D. Ill. May 14, 2015) (Aspen, J.) (“It is well-settled that the Cook

County Sheriff’s Department is not a separate legal entity under Illinois law and cannot be sued

directly.”). These cases, and others, rely on Castillo v. Cook County Mail Room Department, 990 F.2d

304 (7th Cir. 1993). In Castillo, the plaintiff named the “Mail Room Dept.” at the “Cook County Jail”

as a defendant. Id. at 307. The Seventh Circuit explained that “[t]he Cook County Department of

Corrections is not a suable entity,” and thus “[i]t follow[ed] that the mail room, as a subdivision of

the Department of Corrections, is not subject to suit either.”2 Id.

Other courts in this District have held that a sheriff’s office is a suable entity. See, e.g.,

Leinenweber v. DuPage Cnty., No. 08 CV 3124, 2009 WL 458622, at *3 (N.D. Ill. Feb. 23, 2009)

(Manning, J.) (rejecting the argument that the DuPage County Sheriff’s Office is not a legal entity

because it is “not well-founded, as numerous courts have permitted claims to proceed against the

office of a county sheriff”); see also Young v. City of Chi., No. 13 C 5651, 2017 WL 25170, at *4 (N.D.

Ill. Jan. 3, 2017) (Gottschall, J.) (noting that, unlike the Chicago Police Department, which has no

2 Similarly, defendants cite Suarez v. Cook County Clerk’s Office, No. 01 C 5830, 2002 WL 31833686 (N.D. Ill. Dec. 17, 2002)

(Andersen, J.), which held that the Cook County Clerk’s Office is a non-suable entity. But the cases Suarez relies upon

held that, given how Illinois statutes organized the Public Defender’s Office, that office was not a suable entity. See Clay v.

Friedman, 541 F. Supp. 500, 503 (N.D. Ill. 1982) (Shadur, J.) and Woidtke v. Cnty. of St. Clair, 02-CV-225, 2002 WL 31553528,

at *3 (S.D. Ill. Nov. 8, 2002).

separate legal existence apart from the City of Chicago, a county sheriff’s office has a legal existence

separate from the county and state) (citation omitted). Though courts sometimes grapple with the

decision to permit suits against an elected county official versus the entity itself, many have

explained that the distinction makes little difference where an officer is sued in his official capacity

because “[a]n official capacity suit is the same as a suit against the entity of which the officer is an

agent.” DeGenova, 209 F.3d at 974 n.1 (citation omitted); Leinenweber, 2009 WL 458622, at *3.3

As this Court explained in its March 2021 opinion, just as sheriffs are independently elected

officials responsible for their office, the assessor is an independently elected official responsible for

his office. The assessor answers to the electorate, not to the Cook County Board of Commissioners.

Indeed, as the Seventh Circuit noted in DeGenova, “Within the sheriff’s prescribed range of activity,

he and not some legislative-type body is at the apex of the governmental pyramid.” DeGenova, 209

F.3d at 976 n.2 (quoting Hvorcik v. Sheahan, 847 F. Supp. 1414, 1417 n.7 (N.D. Ill. 1994) (Shadur, J.)).

The Seventh Circuit concluded that “the Sheriff’s office has a legal existence separate from the

county and the State, and is thus a suable entity.” Id.; see also Mitter v. Cnty. of DuPage, No. 13 C 841,

2013 WL 5951810, at *4 (N.D. Ill. Nov. 7, 2013) (Feinerman, J.) (“[s]ettled precedent” that a

sheriff’s office is a suable entity).

The Court finds that the above analysis of the suability of the sheriff’s office is sufficiently

similar to that of the CCAO, and thus the motion to dismiss the CCAO on the ground that it cannot

be sued is denied.

3 On reply, defendants argue that if the Court finds that the CCAO is a suable entity, the Court should dismiss the § 1983

claims against Kaegi as duplicative. (Dkt. 44 at 4.) Kaegi, however, has only been named in his individual capacity in this

case. As noted above, the case law (including that to which defendants cite) contemplates duplication where individual

defendants are sued in their official capacity. See, e.g., Kiser v. Naperville Cmty. Unit, 227 F. Supp. 2d 954, 960–61 (N.D. Ill.

2002) (Gottschall, J.) (agreeing with individual defendants, who were each sued only in their official capacity, that

“[b]ecause official capacity suits are equivalent to suing the entity itself . . . naming them in their official capacities serves

no legitimate purpose”).

Additionally, because the CCAO remains in the case, Cook County the municipality is now a

necessary party in the case. In an answer to a certified question from the Seventh Circuit, the Illinois

Supreme Court determined that, “[b]ecause the office of the sheriff is funded by the county, the

county is therefore required to pay a judgment entered against a sheriff’s office in an official

capacity.” Carver v. Sheriff of LaSalle Cnty., 203 Ill.2d 497, 499, 787 N.E.2d 127, 129 (2003). The

Seventh Circuit held that the Supreme Court of Illinois’s answer “implie[d] an additional point of

federal law: that a county in Illinois is a necessary party in any suit seeking damages from an

independently elected county officer (sheriff, assessor, clerk of court, and so on) in an official

capacity. Because state law requires the county to pay, federal law deems it an indispensable party to

the litigation.” Carver v. Sheriff of LaSalle Cnty., 324 F.3d 947, 948 (7th Cir. 2003) (internal citation

omitted). Cook County must therefore be joined as a defendant, not based on its participation in

any alleged conduct, but “solely in its capacity as indemnitor” of the CCAO. Askew v. Sheriff of Cook

Cnty., 568 F.3d 632, 636 (7th Cir. 2009); Wuerffel v. Cook Cnty. Sheriff’s Office, 14 C 3990, 2016 WL

1660497, at *3 (N.D. Ill. Apr. 27, 2016) (Kocoras, J.) (citation omitted).

Monell Claim

Defendants also argue that plaintiff has failed to adequately plead a Monell claim.4 To state a

Monell claim against a municipality or comparable entity, a plaintiff must allege facts sufficient to show

that the alleged constitutional violation was caused by “(1) an express municipal 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 act] by a person with final policymaking authority.” Molloy v.

Acero Charter Schs., Inc., No. 19 C 785, 2019 WL 5101503, at *5 (N.D. Ill. Oct. 10, 2019) (Feinerman,

4 In their motion to dismiss, defendants argue that plaintiff’s First Amended Complaint is unclear as to whether plaintiff

intended to assert a Monell claim against the CCAO, Kaegi, or both. Plaintiff’s response clarifies that her Monell claim is

brought only against the CCAO. (Dkt. 42 at 3.)

J.) (citing Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002)). “In addition to showing that the

municipality acted culpably in one of those three ways, the plaintiff must allege causation, meaning

that the municipality, through its deliberate conduct, . . . was the ‘moving force’ behind the injury

alleged.” Id. (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137

L.Ed.2d 626 (1997)) (emphasis and internal quotation marks omitted). In her response, plaintiff

explains that she is proceeding under a “final policymaker” theory and argues that she has carried her

burden to establish a constitutional deprivation caused by an individual with final policymaking

authority. On reply, defendants contend that plaintiff’s allegations fall short because (1) whether a

person has final policymaking authority turns on state law and plaintiff “fails to provide any state law

support” for her assertion that Kaegi was the final policymaker for the CCAO with respect to

terminating employees; and (2) plaintiff attempts to rely on facts “alleg[ing] a widespread practice or

policy” in support of her final policymaker theory. (Dkt. 44 at 2–3.)

“State law informs who legally constitutes a final policymaker.” Walker v. Bd. of Educ. of City of

Chi., No. 19 CV 4115, 2021 WL 1143517, at *4 (N.D. Ill. Mar. 25, 2021) (Blakey, J.) (citing Burger v.

Cnty. of Macon, 942 F.3d 372, 375 (7th Cir. 2019)). “Final policymaking authority may be granted

directly by statute or delegated or ratified by an official having policymaking authority.” Kujawski v.

Bd. of Comm’rs of Bartholomew Cnty., 183 F.3d 734, 737 (7th Cir. 1999). A person has final policymaking

authority for employment purposes if he has “authority to set policy for hiring and firing.” Id. at 739

(“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.”); Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir.

2009) (“It is a well-established principle that the mere unreviewed discretion to make hiring and firing

decisions does not amount to policymaking authority.”) (internal quotation marks and citations

omitted).

Plaintiff’s First Amended Complaint alleges that Kaegi was sworn in as the Cook County

Assessor on December 3, 2018, and, that same day, Kaegi “began to terminate those employees of

the CCAO that were hired by Mr. Berrios, engaged in political speech in favor of Mr. Berrios and/or

were known to associate politically with Mr. Berrios and/or his campaign.” (Dkt. 37, Compl. at ¶

12.) Plaintiff alleges that her own termination was due to her being hired by Berrios “and thus

considered to be a political supporter of his,” as well as her political speech in favor of and political

association with Berrios. (Id. at ¶ 16.) The complaint also alleges that “Kaegi was the final

policymaker for the CCAO with respect to terminating employees,” and that Kaegi’s acts “constitute

a policy, custom, and practice of the CCAO to terminate those employees that engage in political

speech or association in favor of Mr. Berrios.” (Id. at ¶¶ 38–39.) Plaintiff alleges that each of

Kaegi’s acts with respect to the CCAO “constitutes a policy of the CCAO,” and that, as a result of

the “policy, custom and practice espoused by the CCAO to retaliate against political supports of Mr.

Berrios,” she suffered a deprivation of rights. (Id. at ¶¶ 40–41.)

At the motion to dismiss stage, plaintiff must plead sufficient “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. As this Court stated in its March 2021 opinion, Kaegi is plausibly the final

policymaker for the CCAO. However, although the First Amended Complaint concludes that Kaegi

“was the final policymaker for the CCAO with respect to terminating employees,” it alleges no facts

to support this claim. In other words, beyond stating that “Kaegi was the final policymaker” for the

CCAO’s termination decisions, the complaint lacks sufficient facts to allege that Kaegi possessed or

was delegated final policymaking authority for termination decisions. Such facts are necessary to

permit the inference that Kaegi indeed had final policymaking authority with respect to firing

employees. Cf. Thuet v. Chi. Pub. Schs., No. 20 C 1369, 2020 WL 5702195, at *4 (N.D. Ill. Sept. 24,

2020) (Feinerman, J.) (plaintiff adequately alleged that Chicago Public Schools’ CEO was the final

policymaker for hiring and firing where plaintiff referenced applicable guidelines, which “yield[ed] a

permissible inference that [the CEO] not only made hiring and firing decisions in individual cases,

but also set policy for termination and DNH [or ‘do not hire’] decisions”’); see also Kristofek v. Will. of

Orland Hills, 712 F.3d 979, 987 (7th Cir. 2013) (finding that plaintiff stated, “albeit barely,” a

plausible claim that a police chief “had at least de facto authority to set policy for hiring and firing,”

where the complaint suggested he was “fully in charge of the police department and that his firing

decisions were not reviewed”). Defendants’ motion to dismiss is, therefore, granted without

prejudice as to plaintiffs Mone/ claim. Plaintiff has leave to amend her complaint to include

sufficient factual allegations to proceed under a “final policymaker” theory.

Conclusion

Based on the foregoing discussion, defendants’ partial motion to dismiss [38] 1s granted in part

without prejudice and denied in part. Defendants’ motion to dismiss on the basis that the CCAO is

not a suable entity is denied. Plaintiff's Mone// claim is dismissed without prejudice and with leave to

replead. By February 22, 2022, plaintiff may file an amended complaint to cure the deficiencies

described in this opinion. The portion of defendants’ motion that requests a stay of the deadline to

answer the remaining claims in the First Amended Complaint until after the instant decision [38] 1s

stricken as moot.

TIT IS SO ORDERED.

Date: 02/01/2022

Entered:

SHARON JOHNSON COLEMAN

United States District Judge