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Milwaukee Police Association v. Flynn

United States District Court, E.D. Wisconsin

September 30, 2016

MILWAUKEE POLICE ASSOCIATION itself and on behalf of its members, DANIEL J. VIDMAR, CHRISTOPHER E. MANNEY, RUDOLFO GOMEZ, JR., Plaintiffs,
v.
EDWARD FLYNN, Chief of Police for the City of Milwaukee, CITY OF MILWAUKEE, Defendants.

          DECISION AND ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 9)

          C. N. CLEVERT, JR. U.S. DISTRICT JUDGE

         The Milwaukee Police Association and former officers Daniel J. Vidmar, Christopher E. Manney, and Rodolfo Gomez, Jr. sue Chief of Police Edward Flynn and the City of Milwaukee under 42 U.S.C. § 1983, alleging deprivation of property without due process of law and unlawful withholding of pay and benefits. Defendants move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the ground that plaintiffs have failed to state a claim. For the reasons set forth below, the motion will be granted.

         STANDARD OF REVIEW

         Rule 12(c) permits a party to move for judgment after the complaint and answer have been filed. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir.1998); see Fed. R. Civ. P. 12(c). The factual allegations in the complaint are taken as true, with all reasonable inferences drawn in plaintiffs' favor. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). However, facts set forth in the complaint that undermine the plaintiffs' claims are not ignored. N. Ind. Gun & Outdoor Shows, Inc., 163 F.3d at 452.

         The standard applied to a Rule 12(c) motion is the same as that applied to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. The complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Pisciotta, 499 F.3d at 633. Factual allegations must be enough to rise above the speculative level, id., which means that sufficient facts are set forth to state a claim plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). The essence of a Rule 12(b)(6) motion is that even assuming all of the alleged facts are accurate, plaintiff has no legal claim. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999).

         The pleadings referenced in Rule 12(c) include the complaint, the answer, and any written instruments attached as exhibits to those pleadings. N. Ind. Gun & Outdoor Shows, Inc., 163 F.3d at 452-53. Further, the court may take judicial notice of facts that are not subject to reasonable dispute because they are “generally known within the trial court's territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Judicial notice “is an adjudicative device that substitutes the acceptance of a universal truth for the conventional method of introducing evidence.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997).

         Here, the defendants attached to their brief in support of the motion an appendix containing documents from the Wisconsin Legislative Bureau. (See Doc. 10 app.) The documents contain legislative history of which the court takes judicial notice with due regard for plaintiffs' acknowledgment of the same. (Doc. 11 at 15.)

         ALLEGED FACTS

         Daniel J. Vidmar was employed as a police officer for the City of Milwaukee. (Doc. 1, ¶ 6.) On January 1, 2014, Chief Edward Flynn ordered that Vidmar be discharged from employment, and his pay and benefits were terminated by the City of Milwaukee immediately thereafter. (Doc. 1, ¶¶ 12-13.) Vidmar appealed, and the Board of Fire and Police Commissioners conducted a trial on May 12 and June 17, 2014. (Id., ¶ 14.) On June 17, 2014, the Board concluded that discharge was appropriate. (Id.)

         Christopher E. Manney was employed as a police officer for the City of Milwaukee. (Doc. 1, ¶ 7.) On October 15, 2014, Chief Flynn ordered that Manney be discharged from employment, and his pay and benefits were terminated by the City of Milwaukee immediately thereafter. (Doc. 1, ¶¶ 15-16.) Manney appealed, and the Board conducted a trial from March 19 through March 23, 2015. (Id., ¶ 17.) On March 23, 2015, the Board concluded that discharge was appropriate. (Id.)

         Rudolfo Gomez, Jr. was employed as a detective for the City of Milwaukee.[1](Doc. 1, ¶ 8.) On December 3, 2013, Chief Flynn ordered that Gomez be discharged from employment, and his pay and benefits were terminated by the City of Milwaukee immediately thereafter. (Doc. 1, ¶¶ 18-19.) Gomez appealed, but his trial before the Board was adjourned pending resolution of criminal charges against him. (Doc. 5, ¶ 20.) Following the resolution of the criminal charges, Gomez's Board trial was conducted on July 22 through July 24, 2015. On July 24, 2015, the Board concluded that discharge was appropriate. (Id.)

         DISCUSSION

         Plaintiffs allege that the termination of their pay and benefits before a final decision by the Board deprived them of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, as well as article I, sections 1 and 9 of the Wisconsin Constitution. (Doc. 1, ¶ 1.) In the complaint, plaintiffs cited § 62.50(11) and (18) as the source of their property right. (Id.) However, they subsequently stated that they wrongly cited to § 62.50(18) and meant to cite § 62.50 generally as the source of their property right. (Doc. 11 at 11.)

         In addition, plaintiffs allege a state-law wage claim for violation of Wis.Stat. § 109.03 by the defendants' failure to timely compensate them as required by state law. The plaintiffs assert that the pay and benefits that should have been paid to them under § 62.50 constitute a “wage” as defined in Wis.Stat. § 109.01(3) and that the ...


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