hearing occurred. Ouzounian’s suspension lasted for approximately one year. After
Ouzounian was found not guilty of attempting to solicit a bribe he filed charges against

defendants in this court.

II. ANALYSIS

When considering a motion to dismiss under Fe. R. CIv. P. 12(b)(6), the court
must accept as true all well-pleaded facts and must draw all reasonable inferences
from those allegations in plaintiff's favor. Hernandez v. City of Goshen, 324 F.3d 535,
537 (7th Cir. 2003). The federal notice pleading standard requires only that “a
complaint state the plaintiffs legal claim, ... together with some indication . . . of time
and place.” Thomson v. Washington, No. 01-526-DRH, 2004 U.S. App. LEXIS 6086, at
*4.5 (7th Cir. April 1, 2004). The purpose of the pleading is to give a defendant notice
_ of the claims against him and the grounds upon which they rest. Thompson v. Il. Dep't

| of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). Thus, so long as a plaintiff

supplies adequate notice of legal claims which, if factually supported, would entitle him
i. to relief, his claims will not be dismissed under Rule 12(b)(6). See Washington, supra,
at *6.

f : A. Count I - § 1983 False Arrest

A valid claim under § 1983 requires Ouzounian to allege that a person acting
i ‘under color of state law deprived him of a federal right. See Ienco v. City of Chicago,

286 F.3d 994, 997-98 (7th Cir. 2002). That defendants Sheahan, Shaughnessy, Swaine,

4.


Jaw requires the plaintiff to allege: (1) that he was subject to judicial proceedings; (2)
for which there was no probable cause; (3) the defendant instituted the proceedings
maliciously; (4) the proceedings were terminated in the plaintiffs favor; and (5)
plaintiff suffered an injury. Sneed v. Rybicki, 146 F.3d 478, 480-81 (7th Cir. 1998).
Here, Ouzounian claims that Swaine and Pavilionis, together with Andrews,
knowingly fabricated charges against him and then arrested, indicted and prosecuted
him for those false charges. Ouzounian further contends that he was eventually found
not guilty and that he suffered monetary and emotional injury from defendants’
prosecution of false charges against him. Ouzounian’s pleadings are more than
sufficient to put defendants on notice of his malicious prosecution claim. However, the
court will retain jurisdiction of this state law claim pursuant to 28 U.S.C. § 1867 only
so long as federal claims persist. Thus, if Ouzounian fails within 30 days to file an
amended complaint stating an actionable § 1983 claim in Counts J and/or II, the court

will dismiss Count III for lack of jurisdiction.


his arrest was made pursuant to legal process (assuming that being “charged” means
having a warrant or indictment returned against him). See Gauger v. Hendle, 349 F.3d
354, 361 (7th Cir. 2003) (“A warrant is legal process, and so a complaint about conduct
pursuant to it is a challenge to legal process and thus resembles malicious
prosecution.”). But if instead Ouzounian means that his arrest occurred first, prior to
his being charged, there could exist at least the possibility that the arrest occurred
without probable cause.

Liberal as they are, federal notice pleading standards still require a plaintiff to
plead “the bare minimum facts necessary to put the defendant[s] on notice of the claim
ob that [they] can file an answer.” Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002).
Here, Ouzounian has pleaded facts that are insufficient to inform the court or
‘defendants of the circumstances of his false arrest claim. But since his complaint
contains enough to suggest that there might exist a set of facts which, if proven, would
entitle him to relief, the court gives Ouzounian 30 days from the date of this order to
amend his complaint accordingly.

B. Count II - §1983 Due Process

Ouzounian claims that his year-long suspension from the Cook County Sheriffs

b

' Office without pay violated his constitutional right to due process because it occurred

\

with “no evidence presented at any hearing” and despite “having no legitimate

hearing.” To state a colorable due process claim under § 1983 a plaintiff must plead:
(2) the existence of a cognizable property interest, (2) deprivation of that interest, and

6) a denial of due process. Licari v. City of Chicago, 298 F.3d 664, 668 (7th Cir. 2002).

-6-

(


and Pavilionis were acting under color of state law at all relevant times is not in
dispute. With respect to the second element, Ouzounian claims that defendants’
“actions of having him charged and arrested violated [his}) constitutional rights as
protected under 42 U.S.C. § 1982 [sic].” A false arrest made without probable cause is
actionable under § 1983, but “malicious prosecution is not tenable as an independent
constitutional theory.” Newsome v. McCabe, 256 F.3d 747, 753 (7th Cir. 2001). The
difference between the two is that a false arrest claim asserts a violation of the fourth
amendment’s right to be free from unreasonable seizure while a malicious prosecution
(claim asserts a violation of due process under the fifth and fourteenth amendments.
Since due process is satisfied by the opportunity to pursue a claim in state court,
Albright v. Oliver, 510 U.S. 266 (1994), “the existence of a state-law tort remedy
‘enocks out’ any constitutional tort under due process for the same conduct.” McCullah
b Gadert, 344 F.3d 655, 659-60 (7th Cir. 2003). Thus, a plaintiff who seeks relief for

false arrest under § 1983 must make clear in his complaint that the arrest itself was

|
| executed without probable cause and that his § 1983 action does not rely on allegations

of wrongful conduct occurring after the arrest.

From the face of Ouzounian’s complaint it is impossible to determine whether

he was arrested without probable cause, and therefore impossible to determine

'whether he has stated a valid claim for false arrest under § 1983. The only facts

available to the court are Ouzounian’s assertion that he was “charged and arrested”

fl
in violation of his constitutional rights. If by this Ouzounian means that he was first

charged and then arrested, his § 1983 claim must be dismissed because he admits that

-5-


already been assured by the arrest and the filing of charges.”). While Ouzounian was
not entitled to a pre-suspension hearing, “the more pressing question is whether the
post-suspension process satisfied the requirements of due process.” Luellen, 350 F.3d
at 615. Under Illinois law, Ouzounian’s suspension without pay was permissible for up
to thirty days without providing him a hearing. See 55 ILCS § 5/3-7011. But once it
became clear that his suspension was to endure longer than thirty days, due process

required a hearing before Sheahan could continue to deprive Ouzounian of his

recognized property interest.

Once again, the court cannot discern from ambiguous language in the complaint

| whether Ouzounian has stated a claim for relief. Quzounian complains both that “no

evidence was presented at any hearing” and that he received “no legitimate hearing.”
i If by this Ouzounian means that he was afforded no post-suspension hearing of any
tal

kind, or that the hearing was constitutionally infirm, he perhaps has stated a claim for

| violation of his due process rights. However, in order to rely on this inference and
im

validate Ouzounian’s § 1983 claim, the court needs to see in the complaint “some
lta. .
indication ... of [the] time and place” of any hearing “together with [Ouzounian’s] legal

aim? that he was deprived of due process. See Washington, 2004 U.S. App. LEXIS

6086, iat *5. The court gives Ouzounian 30 days from the date of this order to amend
an :

|
his complaint accordingly.
in|

¢, Count IH - Malicious Prosecution under Illinois law

Ouzounian complains that Swaine and Pavilionis are liable for malicious

a prosecution under the laws of Hlinois. A claim for malicious prosecution under Illinois

i |
Wd 8.


1 Mig Order Form (0697)

United States District Court, Northern District of Hlinois

serge Magistrate ude Joan B. Gottschall “than Asigned Judge
CASE NUMBER 02 C 7161 DATE 5/14/2004
CASE David Ouzounian vs. Michael Sheahan, et al.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
Defendants’ Motions to Dismmiss
DOCKET ENTRY:
(63) Oo Filed motion of [ use listing in “Motion” box above.]
Q) oO Brief in support of motion due
@) a Answer brief to motion due__. Reply to answer briefdue__.
(4) Oo Ruling/Hearingon____setfor___at
(5) oO Status hearing[held/continued to] [set for/re-set for]on__ssetfor__—__at.
(®) Oo Pretrial conference[held/continued to] [set for/re-set for}on___—_setfor__—-—at__
(0) o Trial[set for/re-set for}on__at
(8) oO [Bench/Jury trial) [Hearing] held/continuedto at
(9) a) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

DOFRCPA(m) OLocal Rule 41.1 OFRCP4i(a\(i) 0 FRCP41(a)(2).

[Other docket entry) Enter Memorandum Opinion and Order. For the reasons stated in the
attached memorandum opinion and order, defendants’ motion to dismiss [18-1] is denied.
Plaintiff has leave to file an amended complaint within 30 days of the date of this order
remedying certain deficiencies in his original complaint. If no amendment is filed within
that time, the court will enter an order dismissing Counts I and II for failure to state a

claim and Count III for lack of jurisdiction.

(11), a [For further detail see order attached to the original
| \}| No notices required, advised in open court.

ia

1
| No notices required.
i

|: Notices mailed by judge's staff.

| Notified counsel by telephone.

X | | Docketing to mai notices.

|| Mail Ao 450 form. i

1] Copy to judge/magistrate judge. see
Vis

| (
! courtroom feng os
RKB deputy’s te

initials

~ Date/time received in
central Clerk’s Office



il. CONCLUSION

The court cannot determine from the face of Ouzounian’s complaint whether he
was arrested without probable cause or whether he was denied an adequate post-
suspension hearing. Absent these crucial facts, the court cannot decide whether Counts
I and II, respectively, state a claim upon which relief can be granted. The court
therefore gives Ouzounian leave to file an amended complaint addressing these specific
deficiencies within 30 days of the date of this order. If no amendment is filed within
that time, the court will enter an order dismissing Counts I and II for failure to state
a claim and Count III for lack of jurisdiction.

ENTER:

B BOTTSCHALL
ited States District Judge

DATED: May 14, 2004

-10-


The first two elements are satisfied easily in this case. First, in light of applicable
federal and Illinois law, Ouzounian has a constitutionally protected property interest
in his continued paid employment as a sheriff's deputy. Gilbert v. Homar, 520 U.S. 924,
928 (1997) (‘The protections of the Due Process Clause apply to government
deprivation of those prerequisites of government employment in which the employee
has a constitutionally protected ‘property’ interest.”); Lalvani v. Cook County, Nl., 269
F.3d 785, 791 (7th Cir. 2001) (“{A] claim of entitlement is typically rooted in statutory
or contractual language indicating that the employee cannot be terminated but for
cause.”); 55 ILCS 5/3-7012 (“no deputy sheriff in the County Police Department .. .
shall be removed, demoted, or suspended except for cause, upon written charges filed
with the board by the Sheriff and a hearing before the Board”). And second, since
Ouzounian has an interest in his continued employment, suspension from that
employment without pay is a recognized deprivation of that interest. Gilbert, 520 U.S.
at 929 (assuming that suspension infringed a protected property interest).

The third element gives the court pause, however, because Ouzounian’s
complaint is not clear on the issue of what, if any, process he received. As an initial
matter, Gilbert instructs that due process does not require government employers to

| provide a pre-suspension hearing in cases like this, where an employee who occupies
\a highly visible position of public trust has felony charges filed against him. Id., 520
‘US. at 932-34 (“[T]he purpose of any pre-suspension hearing [is] to assure that there

are reasonable grounds to support the suspension without pay . . . [and] that has

-7-


had been seized by the Cook County Sheriffs Department and if they did not leave they
would be arrested for criminal trespass.

After contacting his supervisors, Ouzounian was ordered to the scene to secure
the property. Upon arriving at the restaurant, Ouzounian discovered that the locks had
been changed. Ouzounian again contacted Andrews and ordered him to turn over the
new keys to the restaurant. When Andrews refused, Ouzounian filed criminal charges
against him. It is at this time that Ouzounian learned, through unnamed sources, that
Andrews had powerful “political connections.” These political connections supposedly
included ties to the Inspector General's Office where defendants Shaughnessy, Swaine,
and Pavilionis allegedly conspired to aid Andrews and thwart Ouzounian’s efforts to
regain possession of Andrews’ property on behalf of the Cook County Sheriffs office.
In an apparent act of retaliation against Ouzounian, Andrews made allegations
and pursued a charge that Ouzounian attempted to solicit a bribe. Defendants at the
Inspector General’s Office allegedly failed to meaningfully investigate this charge, and
instead conspired with Andrews to prosecute a criminal charge against Ouzounian that
defendants Shaughnessy, Swaine, and Pavilionis knew was false. On October 4, 2000,

the criminal allegations of the Inspector General's office and the actions of Andrews

| resulted in Ouzounian being “indicted and charged/arraigned” for attempting to solicit

H a bribe.

As a result of the charges filed against Ouzounian, Sheriff Sheahan suspended

him from his deputy position without pay. Ouzounian never received a pre-suspension
|

_ hearing and it is unclear from the amended complaint whether any post-suspension

3+


Swaine’s, and Pavilionis’s motions to dismiss the charges against them pursuant to
FED. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For

the following reasons, defendants’ motion to dismiss is denied.

I, BACKGROUND

Ouzounian’s first amended complaint alleges the following facts which are
assumed to be true for the purpose of this motion. Frederick v. Simmons Airlines, Inc.,
144 F.3d 500, 502 (7th Cir. 1998). In August of 1999 a levy was held at a restaurant
located at 1330 W. Madison in Chicago, Illinois, and the Cook County Sheriffs
Department tock control of the premises, including all its equipment. At this time
defendant Nick Andrews, the owner of the property, demanded return of the keys so
he could retake possession of the property. Ouzounian, who was then a Deputy of Cook
County for the Department of Revenue, explained to Andrews that his property had
been lawfully seized by the Sheriffs department. Notices were subsequently posted at
the building giving public notice of the levy and the scheduled public sale.

On August 23, 1999, the Department of Revenue conducted an auction of the
property and an individual named John Ress placed the winning bid. On September
3, 1999, Ress contacted Ouzounian and said he had just driven past the restaurant and
observed Andrews, accompanied by Chicago Police officers, breaking into the property.

Ouzounian then called Andrews and spoke with a Chicago Police Lieutenant who said
ri

he had been ordered by his Commander to protect Andrews while he changed the locks
on the building. Ouzounian informed the Lieutenant and Andrews that the property

‘| 2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
David Ouzounian, ) MAY 19 2004
)
Plaintiff, )
) Case No. 02 C 7161
v. )
) Honorable Joan B. Gottschall
Sheriff Michael Sheahan, Individually and )
officially, Inspector General Joseph )
Shaughnessy, Investigator Thomas Swaine, )
Investigator Rodney Pavilionis and Nick )
Andrews, Individually, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER

Plaintiff David Ouzounian brings this action under 42 U.S.C. § 1983 and Illinois
state law against Cook County Sheriff Michael Sheahan, Inspector General Joseph
Shaughnessy, Investigators Thomas Swaine and Rodney Pavilionis, and an individual
citizen named Nick Andrews, alleging that they violated his constitutional and state
rights by arresting and indicting him on false charges of attempting to solicit a bribe
and suspending him from his position as a Deputy Cook County Sheriff without due
process. Specifically, Count I charges Shaughnessy, Swaine, and Pavilionis with false
_ arrest under § 1983, Count II charges Sheahan with a due process violation under §
1983, and Count HI charges Swaine, Pavilionis and Andrews with malicious

prosecution under Illinois law. Now before the court are Sheahan’s, Shaughnessy’s,

-1-