United States District Court, E.D. Wisconsin
MILWAUKEE POLICE ASSOCIATION itself and on behalf of its members, DANIEL J. VIDMAR, CHRISTOPHER E. MANNEY, RUDOLFO GOMEZ, JR., Plaintiffs,
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)
CLEVERT, JR. U.S. DISTRICT JUDGE
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.
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.
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).
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).
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.)
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.
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.
Gomez, Jr. was employed as a detective for the City of
Milwaukee.(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.)
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.)
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 ...