plaintiff.” Hentosh v. Herman M. Finch Univ. of Health Scis./The Chicago Med. Sch., 167 F.3d
1170, 1173 (7th Cir. 1999). Dismissal is proper where “it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). Ifthe complaint fails to allege an element necessary to
obtain relief, dismissal is appropriate. R.J.R. Servs., Inc. v. Aetna Cas, & Sur. Co., 895 F.2d 279,
281 (7th Cir. 1989), However, if relief could be granted under any set of circumstances
consistent with the allegations set forth in the complaint, dismissal is improper. Conley, 355
US. at 45-46.

Defendants argue the Complaint must be dismissed for two reasons: (1) if and when
Willow Springs Police Department issues its decision on the Carr’s appeal of several disciplinary
actions, he will be collaterally estopped from bringing any claim that he did not raise during the
administrative review process; and (2) Carr fails to allege an equal protection violation because
he has failed to assert he is a member of any protected class. The Court addresses each in turn.

First, defendants argue that if the Willow Springs Police Department issues a decision on
Carr’s appeal of certain disciplinary decisions, Carr is collaterally estopped from bringing any
claim that he did not raise during the administrative review process.

Under Illinois law, collateral estoppel requires that: (1) the issues decided in the

prior adjudication are identical to issues presented for adjudication in the current

proceeding; (2) there be a final judgment on the merits; and (3) the party against

whom estoppel is asserted was a party or in privity with a party in the prior action.
Kalush v, Deluxe Corp., 171 F.3d 489, 493 (7th Cir. 1999) (emphasis added).

As defendants concede, Carr has not yet presented his case to the Village President

regarding his disciplinary actions. Accordingly, there have been no issues decided in a prior


accepted as true for purposes of the motion.” Jd. (citations omitted). “The Court may weigh the
evidence in order to satisfy itself that jurisdiction exists; as such, disputes over material facts will
not preclude the court from deciding jurisdictional issues.” Board of Trustees of Pipe Fitters’
Welfare Fund Local 597 v. Adams, No. 97 C 5592, 1998 WL 259543, at *2 (N.D. Ill. May 7,
1998).

Defendants’ appear to launch a factual attack on jurisdiction because they argue Carr’s
characterization of this case as ripe for judicial review is incorrect. Of course, Carr disagrees
and, as it turns out, with good reason.

Defendants argument rests on the premise that a section 1983 equal protection claim is
unripe if the plaintiff is still engaged in appellate procedures for disciplinary actions. This
argument is without merit.

In Patsy v. Board of Regents of the State of Florida, a case in which an applicant for
employment brought a section 1983 equal protection claim against a state university and the
employer moved to dismiss for failure to exhaust available state administrative remedies, the
Supreme Court held that “exhaustion of state administrative remedies should not be required as a
prerequisite to bringing an action pursuant to § 1983.” 457 U.S. 496, 516 (1982). Defendants
have provided no case law to support that an exception to the Supreme Court’s holding in Patsy
applies in this case, and the Court finds none. Accordingly, the Court denies defendants’ Rule
12(b)(1) motion.

Next, defendants move to dismiss the Complaint for failure to state a claim pursuant to
Rule 12(b)(6). On a Rule 12(b)(6) motion to dismiss, the court accepts the “well-pleaded

allegations in the complaint as true and draw{s] all reasonable inferences in favor of the


adjudication, and clearly there has been no final judgment on the merits. Therefore, the elements
of collateral estoppel have not been satisfied.

The Court finds defendants’ second argument, that the Complaint fails to state a claim
because Carr does not allege that he is a member of a protected class, equally unavailing. Since a
class of one is likely to be the most vulnerable of all, the equal protection clause does not require
that the plaintiff be a member of a class because “[i]f the power of government is brought to bear
on a harmless individual merely because a powerful state or local official harbors a malignant
animosity toward him, the individual ought to have a remedy in federal court.” Esmail v.
Macrane, 53 F.3d 176, 179-80 (7th Cir. 1995). Thus, absent a fundamental right or a suspect
class, to allege a viable claim, plaintiff must allege “governmental action wholly impossible to
relate to legitimate governmental objectives.” Forseth v. Village of Suffex, 199 F.3d 363, 371
(7th Cir. 2000) (quoting Esmail, 53 F.3d at 180); see Hager v. City of West Peoria, 84 F.3d 865,
872 (7th Cir. 1996). In other words, plaintiff must simply allege that he was treated differently
and that the defendant’s actions were irrational, arbitrary, and even vindictive. Olech y. Village
of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998), aff'd, 528 U.S. 562 (2000).

In this case, Carr does not allege that he was a member of a class, but alleges he was
singled out by Chief Schultz for unwarranted discipline because of his personal animosity toward
Carr since he perceived Carr as a formidable and popular candidate, i.e., competition, for the
Chief of Police position. This allegation, in and of itself, is sufficient to state a claim ofa
violation of Carr’s right to equal protection because he alleges that Schultz’s vindictive treatment
was not related to a legitimate objective.

In sum, Carr is not collaterally estopped from bringing his section 1983 claim, and the


Minate Order Form (06/97)
cS

United States District Court, Northern District of Illinois

D f Assigned Ji Sitting Judge if Oth

aa octrate Juae Ronald A. Guzman than Amsinged Suds

CASE NUMBER 01 C 7807 DATE 7/15/2002
CASE GARY L. CARR vs. VLG. OF WILLOW SPRINGS,et al
TITLE

[In the following box (a) indicate the party filing the motion, c.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.}

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due.

4 Oo Ruling/Hearingon_sset fort

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor saat

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on____——ssetfor_ saat.
(7) oO Trial{set for/re-set for]on__at

(8) a [Bench/Jury trial] [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CGeneralRule21 CIFRCP41(a)(1) CIFRCP41(a)(2).

do) of [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendants’ motion
to dismiss for lack of jurisdiction and for failure to state a claim [8-1] is denied. Status hearing set for
7/26/02 at 9:30a.m.

(al) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

‘No notices required, number of notices

Notices mailed by judge's staff JUL 1 6 2002
[)

Notified counsel by telephone. date dooketed

ocketing deputy intials

v | Docketing to mail notices.

Mail AO 450 form.
Copy to judge/magistrate judge. a) 03 \ 4 \
courtroom uy SI “cr date mailed notice
TBK deputy’s LZ? 4 Wd
initials Seah
* ny i
ie} panera Office mailing deputy initials



allegations in the Complaint are sufficient to state a claim of an equal protection violation. Thus,

the Court denies defendants’ Rule 12(b)(6) motion.

CONCLUSION
For the foregoing reasons, the Court denies defendants’ motion to dismiss for lack of

jurisdiction and for failure to state a claim [doc. no. 8-1].

SO ORDERED ENTERED:

ON. RONALD A. GUZM,
United States Judge

Sul seem


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

GARY L. CARR,

Plaintiff,
Judge Ronald A. Guzman
v.
01 C 7807
VILLAGE OF WILLOW SPRINGS,
and WILLOW SPRINGS CHIEF OF
POLICE, JEROME SCHULTZ, in his
individual and official capacities,

DOCKETED

‘yur 1 6 2002

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Gary L. Carr (“Carr”) has sued the Village of Willow Springs (“Willow
Springs”), and its Chief of Police, Jerome Schultz (“Schultz”) pursuant to 42 U.S.C. § 1983 for
the alleged deprivation of his right to equal protection as provided by the Fourteenth Amendment
to the U.S. Constitution. Defendants have moved to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6). For the reasons provided in this

Memorandum Opinion and Order, the Court denies defendants’ motion to dismiss.

Facts
Carr is a Willow Springs police officer. (Compl. 4.) Schultz, as Chief of Police, is
Willow Springs’ highest ranking police official and makes final policy-making decisions for
Willow Springs. (/d. {| 6-7.) Carr has sued Schultz in his individual and official capacities. (Id.
7.) Carr alleges that Schultz intentionally subjected him to less favorable terms and conditions

of his employment than similarly situated police officers under his command, and neither Schultz

wz


nor Willow Springs can assert a rational basis for the difference in treatment. (/d. J 10.)
According to Carr, Schultz acted with a discriminatory motive when he subjected him to
unwarranted suspensions without pay, a demotion from detective to patrol officer, and a
publicized order for Carr to submit to a psychological evaluation. (Id. 11.) Schultz allegedly
perceived Carr as a formidable and popular candidate for the position of Chief of Police. (/d.)
Schultz’s reasons for the unwarranted discipline were unrelated to any legitimate state objective.

(Id. 4 12.)

Discussion

Defendants have moved to dismiss the Complaint for lack of jurisdiction and for failure
to state a claim. Defendants’ motion, which also serves as the memorandum in support, consists
of eleven sentences. Although not always the case, the lack of substance in defendants’ motion
mirrors its lack of merit.

When moving to dismiss pursuant to Rule 12(b)(1), a defendant may opt for a facial
attack, i.e., a challenge of the court’s subject matter jurisdiction based on the sufficiency of the
complaint’s allegations, or a factual attack, i.e., a challenge of the factual basis for the court’s
subject matter jurisdiction. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir.
1993). If defendant makes a facial attack, the “allegations are taken as true and construed in a
light most favorable to the complainant.” Jd. “If the Rule 12(b)(1) motion denies or controverts
the pleader’s allegations of jurisdiction, however, the movant is deemed to be challenging the
factual basis for the court’s subject matter jurisdiction.” Jd. When making a factual attack, “the

allegations in the complaint are not controlling, and only uncontroverted factual allegations are