Starks v. City Of Waukegan et al

Filing 118

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 5/21/2013.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BENNIE STARKS,
Plaintiff,
vs.
CITY OF WAUKEGAN, LIEUTENANT URBANCIC,
W. BIANG, P. STEVENSON, M. JUAREZ, D.
DEPREZ, DR. CARL HAGSTROM, DR. RUSSELL
SCHNEIDER, and SHARON THOMAS-BOYD,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

09 C 348
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Plaintiff Bennie Starks was convicted of aggravated criminal sexual assault, attempted
aggravated criminal sexual assault, and aggravated battery in the Circuit Court of Lake County,
Illinois. Doc. 95 at ¶ 40. In 2006, after 20 years in prison, Starks was released after the
Appellate Court of Illinois vacated the two sexual assault convictions. Id. at ¶ 48. Starks then
brought this civil suit under 42 U.S.C. § 1983 and Illinois law against the City of Waukegan,
Illinois; five former or present Waukegan police officers named Urbancic, Biang, Stevenson,
Juarez, and Deprez, who allegedly participated in the investigation that led to his conviction
(collectively, “Police Defendants”); Dr. Carl Hagstrom and Dr. Russell Schneider, two dentists
who were involved in the investigation and trial as expert witnesses for the prosecution (together,
“Dentist Defendants”); and Sharon Thomas-Boyd, a serology expert who also participated in the
investigation and trial. The amended complaint, which Starks filed in January 2013 after a
lengthy stay of this case had been lifted, is organized into nine counts: (1) a § 1983 claim against
all Defendants for violating Starks’s Fourteenth Amendment right to due process of law; (2) a
§ 1983 claim against the Police Defendants for failure to intervene; (3) a § 1983 claim against all

1

Defendants for conspiracy to violate Starks’s constitutional rights; (4) a § 1983 claim against the
City under Monell v. Department of Social Services, 436 U.S. 658 (1978); (5) a state law
malicious prosecution claim against all Defendants; (6) a state law intentional infliction of
emotional distress claim against all Defendants; (7) a state law conspiracy claim against all
Defendants; (8) a state law respondeat superior claim against the City with respect to the alleged
state law violations by its officers; and (9) a state law indemnification claim against the City
under 745 ILCS 10/9-102. Doc. 95.
Thomas-Boyd has answered the amended complaint. Doc. 99. The City and the Police
Defendants (collectively, “Waukegan Defendants”) filed a motion to dismiss, Doc. 103, and the
Dentist Defendants filed a separate motion to dismiss, Doc. 100. The motions are denied, except
as to the intentional infliction of emotional distress and Monell claims, which are dismissed.
Background
In considering the motions to dismiss, the court assumes the truth of the amended
complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d
630, 632 (7th Cir. 2012). The court must consider “documents attached to the complaint,
documents that are critical to the complaint and referred to in it, and information that is subject to
proper judicial notice,” along with additional facts set forth in Starks’s briefs opposing dismissal,
so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d
743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Starks as these
materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012). The court’s recitation
of these facts at the pleading stage is not intended to endorse them.
In January 1986, a woman referred to as M.G. reported to the Waukegan police that she
had been attacked and raped by an African-American man. Doc. 95 at ¶ 10. She gave the police

2

a physical description of her attacker that did not match Starks’s appearance. Id. at ¶ 11. The
police found a coat and other clothing that belonged to Starks at the scene of the alleged assault.
Id. at ¶ 12. But this clothing had been stolen from Starks by two men on the evening that the
assault occurred. Id. at ¶ 13. A few days later, Defendants Biang and Juarez showed M.G. a
photo of Starks as part of a suggestive photo array and induced her to identify Starks as her
attacker. Id. at ¶ 14.
The same day, Starks voluntarily came to the police station and was interviewed by
Biang. Id. at ¶ 15. Biang could have recorded the interview but did not, and he proceeded to
prepare a police report that attributed various inculpatory statements to Starks, when in fact
Biang made up those statements himself. Id. at ¶¶ 15-16. The next day Starks was interrogated
by Defendant Deprez, who, like Biang, did not record the interview and then filed a police report
that falsely attributed inculpatory statements to Starks. Id. at ¶¶ 17-18. Defendant Urbancic, a
police lieutenant and the supervisor of Biang, Deprez, Juarez, and Stevenson, was closely
involved in the investigation. Id. at ¶ 19. Although the Police Defendants knew that M.G. was
unreliable and that her identification of Starks was unreliable and a product of improper
suggestion, they failed to tell the prosecutors any of this. Id. at ¶¶ 20, 22. Instead, they met with
M.G. several more times and, through suggestion, led her to change significant aspects of her
story to match the other evidence in the case and to undermine Starks’s alibi. Id. at ¶ 21. As a
result of the Police Defendants’ acts and omissions, Starks was arrested and charged. Id. at ¶ 23.
The Dentist Defendants held themselves out as experts in forensic dentistry. Id. at ¶ 5.
The prosecution hired the Dentist Defendants to compare an alleged bite mark on M.G.’s body
with Starks’s teeth. Id. at ¶ 24. The Dentist Defendants reported that the bite mark had been
made by Starks. Id. at ¶ 25. But they intentionally misapplied the methodology they purported

3

to use, employed a method of comparison that has been rejected by the forensic dentistry
community, and used flawed preservation and photography techniques. Id. at ¶ 26. Thus, while
they told the prosecution that they could confidently attribute the bite mark to Starks, they were
actually aware that they could not reliably make that identification. Id. at ¶ 27.
Defendant Thomas-Boyd was an employee of the Northern Illinois Crime Laboratory and
held herself out as an expert in serology, the science of bodily fluids. Id. at ¶ 6. As part of the
investigation, Thomas-Boyd examined semen that had been recovered from M.G. and physical
evidence from Starks. Id. at ¶¶ 28-29. The results of her tests excluded Starks as a possible
source of the semen, providing very strong evidence of his innocence given that M.G. had not
had sexual intercourse during the two weeks preceding the attack, meaning that the semen
recovered from her body and clothing must have come from her attacker. Id. at ¶¶ 30-31. But
Thomas-Boyd kept this to herself and instead submitted a report that said, falsely, that Starks
could have been the source of the semen. Id. at ¶¶ 32-33.
Juarez gave false testimony to the grand jury, leading it to indict Starks. Id. at ¶ 34. At
trial, Juarez, Biang, and Deprez all gave false testimony against Starks, including by saying that
the photo array that led to M.G.’s identification of Starks had not been suggestive and that Starks
had made inculpatory statements during interrogation. Id. at ¶ 35. The Dentist Defendants also
gave false testimony, repeating their assertion, previously made to the prosecutors, that they
could reliably link the bite mark on M.G. to Starks’s teeth when in fact their data did not allow
them to make that link. Id. at ¶ 36. Thomas-Boyd testified that the semen collected from M.G.’s
body and clothing could have been Starks’s and concealed her knowledge that the tests had
actually excluded Starks as a possible source. Id. at ¶ 38. The Police Defendants never told the
prosecution or the defense that M.G.’s testimony was the product of their suggestive practices.

4

Id. at ¶ 39. Starks alleges that Defendants did all this pursuant to a conspiracy among them to
deprive Starks of his constitutional rights and to secure his conviction, and that the acts described
above were overt acts taken by Defendants pursuant to their conspiracy. Id. at ¶ 57.
Starks was convicted of aggravated criminal sexual assault, attempted aggravated sexual
assault, and aggravated battery, and was sentenced to 60 years in prison. Id. at ¶ 40. His
conviction was affirmed on direct appeal. Id. at ¶ 42. In March 2002, more than 16 years after
his arrest, Starks filed a motion for a new trial in which he asserted that he was innocent, that
post-conviction DNA tests excluded him as the source of the semen, and that Thomas-Boyd had
lied about the results of her tests. Id. at ¶ 43. The state trial court denied Starks’s motion. Id. at
¶ 44. But the Appellate Court of Illinois reversed the trial court’s judgment, vacated Starks’s
aggravated criminal sexual assault and attempted aggravated criminal sexual assault convictions,
and remanded the case for a new trial on those charges. Id. at ¶ 45; see People v. Starks, 850
N.E.2d 206 (Ill. App. 2006), appeal denied, 861 N.E.2d 662 (Ill. 2006). The court takes judicial
notice of the appellate court’s statement that “[d]uring the first trial, the jury was incorrectly
advised that the seminal fluid found on the victim’s underwear and in the victim’s vaginal fluid
could not be excluded as being [Starks’s]. Therefore, the jury was provided incorrect testimony
by the State’s own expert witness regarding the serology results as they related to [Starks].” 850
N.E.2d at 215. The court also said that “[t]he DNA results as presented are probative of a factual
situation that is so different from the victim’s testimony that … the outcome on retrial would
probably be changed.” Id. at 214. After 20 years in prison, Starks was released on bond pending
retrial. Doc. 95 at ¶ 49.
The State kept up the prosecution until May 2012, at which point the aggravated criminal
sexual assault and attempted aggravated criminal sexual assault charges were dismissed nolle

5

prosequi. Id. at ¶ 50. Starks alleges that by that point, most of the evidence against him had
been disproved, including the identification of the semen as possibly having come from him and
the Dentist Defendants’ assertion that his teeth matched the bite mark on M.G. Id. at ¶ 51.
Starks had also filed a post-conviction petition to challenge his aggravated battery conviction,
and in June 2012 the appellate court reversed the trial court’s dismissal of his petition. Id. at
¶ 52; see also People v. Starks, 975 N.E.2d 71 (Ill. App. 2012), appeal denied, 981 N.E.2d 1002
(Ill. 2012). The appellate court stated that “the bite mark evidence has been discredited by a
report by two odontologists who examined it. The report states that the method used by the
State’s forensic odontologists in 1986 has since been rejected by its own creators. The report
also states that the State’s odontologists misapplied the methodology and used flawed
preservation and photography techniques. Accordingly, we determine that the new DNA and
bite mark evidence is of such a conclusive nature that it would probably change the result on
retrial.” 975 N.E.2d at 77-78. The appellate court remanded the post-conviction petition to the
trial court, instructing it to hold an evidentiary hearing to determine whether Starks’s aggravated
battery conviction had denied him due process because he was actually innocent. Id. at 78. In
January 2013, the State agreed that the battery conviction should be vacated and dismissed nolle
prosequi all remaining criminal charges against Starks. Doc. 95 at ¶ 55.
Starks filed this lawsuit in January 2009, after his sexual assault convictions had been
vacated and he had been released on bond pending a new trial on those charges, but before his
aggravated battery conviction had been vacated and before the State had dismissed any of the
charges against him. Doc. 1. The court stayed the lawsuit pending the resolution of the state
court criminal proceedings. 2010 WL 481290 (N.D. Ill. Feb. 4, 2010) (Coar, J.). After the last
charges against him were dismissed in January 2013, Starks moved to lift the stay; the court

6

granted the motion and allowed Starks to file a nine-count amended complaint. Doc. 94. The
court has original jurisdiction over Starks’s § 1983 claims under 28 U.S.C. § 1331 and
supplemental jurisdiction over his state law claims under 28 U.S.C. § 1367(a).
Discussion
The Waukegan Defendants’ and the Dentist Defendants’ motions to dismiss both purport
to come under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 100 at 1; Doc. 104
at 2-3. There is no argument in either motion that plausibly aims at the court’s subject matter
jurisdiction, as required for dismissal under Rule 12(b)(1). The Dentist Defendants appear to
believe that the rule of Heck v. Humphrey, 512 U.S. 477 (1994), is jurisdictional, Doc. 110 at 37, but they are wrong, as “the Heck defense is not jurisdictional.” Okoro v. Bohman, 164 F.3d
1059, 1061 (7th Cir. 1999). So the court will treat the motions as seeking dismissal only under
Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
I.

The Waukegan Defendants’ Motion to Dismiss
The grounds for dismissal advanced by the Waukegan Defendants can be categorized as

follows: (1) a challenge to the complaint as a whole for “group pleading”; (2) a challenge to the
complaint as a whole for “shotgun pleading”; (3) a challenge to the due process claim on the
ground that it is a “hybrid claim”; (4) a challenge to the due process claim on absolute immunity
grounds; (5) a challenge to the failure to intervene claim; (6) a challenge to the conspiracy claim;
(7) a challenge to the § 1983 failure to intervene and conspiracy claims that incorporates the
Dentist Defendants’ challenge to those counts; (8) a challenge to the Monell claim; (9) a
challenge to the malicious prosecution claim; (10) a challenge to the intentional infliction of
emotional distress claim, again via incorporation of the Dentist Defendants’ arguments; and (11)
a challenge to the state law conspiracy claim. The court will address these arguments in turn.

7

A.

“Group Pleading”

Starks names nine defendants, each of whom is alleged to have taken distinct unlawful
actions; the one exception is that the allegations against the Dentist Defendants do not
distinguish between those two defendants. Several counts in the complaint refer generally to
“the Defendants” rather than specifying which defendants are the subjects of that count. It is not
clear that all claims are actually aimed at all nine defendants. For instance, Starks cannot state
claims against the City for denial of due process (Count I) or conspiracy (Count III) under
§ 1983, because the only way the City could be liable under those claims is by virtue of the acts
of its employees, yet municipalities cannot be held liable under § 1983 under a respondeat
superior theory for the acts of their officers. See Monell, 436 U.S. at 691. Probably Starks did
not intend to include the City as a defendant with respect to those two counts.
Setting aside Starks’s failure to state explicitly that some claims are not aimed at the City,
the court perceives nothing problematic in Starks’s use of collective references to “the
Defendants” to refer to all of them. The Waukegan Defendants point out, correctly, that Starks is
obliged to “adequately plead[] personal involvement” of each defendant, Brooks v. Ross, 578
F.3d 574, 582 (7th Cir. 2009), and that “[v]ague references to a group of ‘defendants,’ without
specific allegations tying the individual defendants to the alleged unconstitutional conduct, do
not raise a genuine issue of material fact with respect to those defendants,” Grieveson v.
Anderson, 538 F.3d 763, 778 (7th Cir. 2008). Doc. 104 at 3-4. But in the “Facts” section of his
complaint, Doc. 95 at ¶¶ 10-60, Starks states quite clearly what each individual defendant is
alleged to have done, as can be seen from the account of the factual allegations given above.
Starks’s “complaint is therefore quite different from the one in Grieveson, where a prisoner
asserted § 1983 claims against seven different officers arising from seven different attacks

8

without tying any particular officer to any particular injury.” Engel v. Buchan, 710 F.3d 698,
710 (7th Cir. 2013). Starks has done all he must to give the Waukegan Defendants the notice to
which Rule 8(a) entitles them, and the fact that some paragraphs of the complaint refer to “the
Defendants” rather than listing each defendant’s name does not require dismissal.
B.

“Shotgun Pleading”

By “shotgun pleading,” the Waukegan Defendants mean the statement in the first
paragraph of each count that “[e]ach paragraph of this Complaint is incorporated as if restated
fully herein.” Doc. 95 at ¶¶ 61, 69, 73, 80, 85, 92, 98, 103, 106. They quote CustomGuide v.
CareerBuilder, LLC, 813 F. Supp. 2d 990 (N.D. Ill. 2011), which states: “Courts have
discouraged this type of ‘shotgun’ pleading where each count incorporates by reference all
preceding paragraphs and counts of the complaint notwithstanding that many of the facts alleged
are not material to the claim, or cause of action, appearing in a count’s heading. Such pleadings
make it virtually impossible to know which allegations of fact are intended to support which
claim(s) for relief.” Id. at 1001 (citation, brackets, and internal quotation marks omitted). The
Waukegan Defendants did not raise this “shotgun pleading” argument until their reply brief, and
so they forfeited it and the court will not consider it. See Narducci v. Moore, 572 F.3d 313, 324
(7th Cir. 2009) (“the district court is entitled to find that an argument raised for the first time in a
reply brief is forfeited”); Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 389 (7th
Cir. 2003) (“Because Volvo raised the applicability of the Maine statute in its reply brief, the
district court was entitled to find that Volvo waived the issue.”).
C.

Count I (Due Process) as a “Hybrid Claim”

The Waukegan Defendants next argue that Count I, titled “42 U.S.C. § 1983 Claim for
Denial of Due Process,” is an impermissible “hybrid claim” because it does not specify the

9

particular due process doctrine that Defendants are alleged to have transgressed. Doc. 111 at 57; see Daniels v. Williams, 474 U.S. 327, 337 (1986) (Stevens, J., concurring in the judgment)
(noting that the Fourteenth Amendment’s Due Process Clause is the source of several distinct
legal doctrines). Defendants make this argument only in their reply brief, resulting in another
forfeiture. See Narducci, 572 F.3d at 324; Cromeens, Holloman, Sibert, Inc., 349 F.3d at 389.
D.

Absolute Immunity for Count I (Due Process)

Paragraphs 34-38 of the complaint allege that the Police Defendants gave knowingly
false testimony either to the grand jury that indicted Starks or during his criminal trial. Doc. 95
at ¶¶ 34-38. The Supreme Court has made clear that a witness has absolute immunity against
any § 1983 claim based on his grand jury or trial testimony. See Rehberg v. Paulk, 132 S. Ct.
1497, 1506 (2012) (grand jury testimony); Briscoe v. LaHue, 460 U.S. 325, 326 (1983) (trial
testimony). The Court held that such immunity extends to law enforcement witnesses. See
Rehberg, 132 S. Ct. at 1505-06; Briscoe, 460 U.S. at 341-44. Moreover, the Court held that “this
rule may not be circumvented by claiming that a grand jury witness conspired to present false
testimony or by using evidence of the witness’ testimony to support any other § 1983 claim
concerning the initiation or maintenance of a prosecution.” Rehberg, 132 S. Ct. at 1506. Given
this, the facts alleged in ¶¶ 34-38 cannot ground liability on any of Starks’s claims.
Defendants argue that this requires dismissal of Count I, the due process claim. Doc. 104
at 4-5. But as recounted above, the Police Defendants are alleged to have done much more than
just give false testimony and conspire to do so, and nothing in Count I suggests that Starks means
to base his due process claim solely on the acts—testifying before the grand jury and the jury—
for which the Police Defendants have absolute immunity. The Police Defendants do not argue
that the other allegations against them—for instance, that they caused M.G. to identify Starks as

10

her assailant by giving her a suggestive photo array, and filed reports that falsely attributed
inculpatory statements to Starks—could not ground a due process claim. See Whitlock v.
Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012) (“a police officer who manufactures false
evidence against a criminal defendant violates due process if that evidence is later used to
deprive the defendant of her liberty in some way”). Because the Police Defendants have not
made that argument, the court will not make it for them. See Franklin v. Gilmore, 188 F.3d 877,
884 (7th Cir. 1999) (noting that a litigant could have made an argument but had not, and
concluding that “we will not make it for him”). Thus, the Police Defendants’ proper assertion of
absolute immunity for allegedly giving false testimony fails to undermine the due process claim
in its entirety, and so it does not require dismissal of that claim.
E.

Count II: § 1983 Failure to Intervene Claim

After incorporating by reference all other paragraphs in the complaint, Count II, titled
“42 U.S.C. § 1983 Claim for Failure to Intervene,” alleges as follows:
70. One or more of the Defendant officers [the Police Defendants] had
opportunities to intervene on behalf of Plaintiff and prevent the continuing
constitutional violations described herein, but due to their intentional conduct
and/or reckless or deliberate indifference, declined or refused to do so.
71. As a direct and proximate result of Defendant officers’ failure to
intervene to prevent the continuing violation of Plaintiff’s constitutional
rights, Plaintiff suffered the injuries set forth above, including physical pain
and suffering and emotional distress.
72. The misconduct described in this Count was committed
intentionally, willfully, and/or with reckless or deliberate indifference to
Plaintiff’s clearly established constitutional rights.
Doc. 95 at ¶¶ 70-72.
The Seventh Circuit has held that “under certain circumstances a state actor’s failure to
intervene renders him or her culpable under § 1983. … An officer who is present and fails to

11

intervene to prevent other law enforcement officers from infringing the constitutional rights of
citizens is liable under § 1983 if that officer had reason to know (1) that excessive force was
being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional
violation has been committed by a law enforcement official; and the officer had a realistic
opportunity to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994). The Police Defendants construe Count II as a claim that the prosecution in Starks’s
criminal trial deprived him of due process as interpreted by Brady v. Maryland, 373 U.S. 83
(1963), by suppressing evidence—the Dentist Defendants’ and Thomas-Boyd’s knowledge that
the dental and serological tests they had done did not implicate Starks—that might have
materially assisted his defense, and that the Police Defendants are liable for failing to force the
prosecutors to disclose that evidence. Doc. 104 at 6 (“The gist of such a claim here … would
have to be that the Waukegan Police Defendants had knowledge that Brady required the
disclosures about the DNA and bite marks and that the prosecutors were purposely not going to
make the disclosures Plaintiff alleges should have been made … yet he tries to weave in the
police defendants for liability for the prosecutors’ failure to disclose that evidence.”).
But as Starks says in his brief opposing dismissal, “[t]hat is obviously not Plaintiff’s
claim.” Doc. 109 at 9. Rather, Count II alleges that each of the Police Defendants participated
in the fabrication of evidence against him, Doc. 95 at ¶¶ 14-22, and that each knew that the
others were doing so and failed to intervene to prevent those constitutional violations, Doc. 109
at 10. Under Yang, that plainly suffices to state a § 1983 claim for failure to intervene, since it is
alleged that each officer knew that constitutional violations were being committed by other
officers and could have prevented these violations but failed to do so.

12

F.

Count III: § 1983 Conspiracy Claim

Defendants next contend that Count III, which alleges that Defendants conspired to
deprive him of his constitutional rights in violation of § 1983, falls short of the Rule 8(a)
pleading standard as interpreted by Ashcroft v. Iqbal, 556 U.S. 662 (2009). Doc. 104 at 6-8.
Iqbal held that “[a] claim has facial plausibility [as required to survive dismissal] when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 556 U.S. at 678.
Starks’s § 1983 conspiracy claim meets that standard. The complaint describes acts
performed by the individual defendants that were intended to and did lead to his prosecution and
conviction for crimes he did not commit. The complaint further alleges that “Defendants agreed
among themselves and with other individuals to act in concert in order to deprive Plaintiff of his
constitutional rights, including his rights to due process and to a fair trial, as set forth” in the
complaint’s fact section. Doc. 95 at ¶ 74. Even if this particular allegation is conclusory,
meaning that the court should not accept it as true standing alone, see Iqbal, 556 U.S. at 678
(“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions”), the complaint’s other allegations satisfy Iqbal because they
allow the court to draw the reasonable inference that Defendants really did agree to act together
to violate Starks’s constitutional rights. The complaint amply alleges that the Police Defendants,
the Dentist Defendants, and Thomas-Boyd all worked to get Starks convicted for a crime he did
not commit, and it is more plausible that they each made their contributions to that effort in the
context of an agreement to secure a wrongful conviction than that, by some wild coincidence,
everyone who came into contact with Starks’s case independently developed a desire to see him
convicted and a willingness to lie in pursuit of that goal.

13

This is not a case where “the well-pleaded facts do not permit the court to infer more than
the possibility of misconduct.” Id. at 679. In other words, this case is not like Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), which held that a complaint alleging antitrust
conspiracy had to be dismissed because it lacked “factual context suggesting agreement, as
distinct from identical, independent action.” Id. at 549. Rather, this case is like Geinosky v. City
of Chicago, supra, where the Seventh Circuit rejected a comparable Iqbal argument with the
following explanation:
While the complaint makes only rather conclusory direct allegations of
conspiracy, the complaint also alleges a pattern of harassment by several
officers over a period of months. It is a challenge to imagine a scenario in
which that harassment would not have been the product of a conspiracy.
Under Twombly, all plaintiff needed to allege was a plausible account of a
conspiracy. This complaint goes well beyond that. … Iqbal calls on us to
apply our “judicial experience and common sense.” If several members of the
same police unit allegedly acted in the same inexplicable way against a
plaintiff on many different occasions, we will not dismiss a complaint for
failure to recite language explicitly linking these factual details to their
obvious suggestion of collusion.
675 F.3d at 749 (quoting Iqbal, 556 U.S. at 679) (one citation omitted). Because Starks’s factual
allegations make an agreement among Defendants plausible, he has a viable conspiracy claim.
G.

The Dentist Defendants’ Limitations Challenge to Counts II and III

In their reply brief, the Police Defendants seek to incorporate by reference the Dentist
Defendants’ statute of limitations challenge to Counts II and III, the § 1983 failure to intervene
and conspiracy claims. Doc. 111 at 7. As set forth below, the court declines to consider the
Dentist Defendants’ argument with respect to Count II because, as the Dentist Defendants’
recognize, they are not named as defendants to that count and therefore cannot properly
challenge it. But if the court were to consider their argument as to Count II, the court would
reject it on the same grounds given below with respect to the Dentist Defendants’ limitations

14

challenge to Count I; those grounds suffice for Count II as well because the Dentist Defendants
do not distinguish between the two counts. And for the reasons given below, the court rejects the
Dentist Defendants’ argument that Count III is time-barred. Accordingly, the Dentist
Defendants’ arguments regarding Counts II and III do not entitle the Police Defendants to
dismissal of those claims.
H.

Count IV: Monell Claim

After incorporating by reference all other paragraphs in the complaint, Count IV, titled
“42 U.S.C. § 1983 Monell Policy Claim Against City of Waukegan,” alleges as follows:
81. The actions of [the Police Defendants] as alleged above, were
done pursuant to one or more interrelated de facto policies, practices and/or
customs of the Defendant City of Waukegan[,] its Police Department, Police
Board, and/or City Council.
82. At all times material to this complaint, Defendant City and its
Police Department had interrelated de facto policies, practices, and customs
which included, inter alia:
a) filing false reports and giving false statements and pursuing and
obtaining wrongful prosecutions and false imprisonments on the basis of such
reports and statements;
b) the failure to properly train, supervise, discipline, transfer, monitor,
counsel and/or otherwise control police officers, particularly those who were
repeatedly accused of wrongful imprisonments, malicious prosecutions and
wrongful convictions and of making false reports and statements;
c) the police code of silence, specifically in cases where police
officers refused to report or otherwise covered up instances of police
misconduct, and/or the fabrication, suppression and destruction of evidence of
which they were aware, despite their obligation under the law and police
regulations to do so;
d) covering up, suppressing and withholding exonerating,
exculpatory, and/or other evidence favorable to criminal Defendants; and
e) coercing and fabricating false and inculpatory statements from
suspects and witnesses.

15

83. These policies, practices and customs, as set forth above, both
individually and together, were maintained and implemented with deliberate
indifference, encouraged, inter alia, the fabrication, coercion, manipulation,
and alteration of evidence, the making of false statements and reports, the
giving of false testimony, and the pursuit and continuation of wrongful
convictions and false arrests and imprisonments, and otherwise covering up
police misconduct, and were, separately and together, a direct and proximate
cause of the unconstitutional acts committed by the named Defendants and the
injuries suffered by the Plaintiff.
84. Additionally, said failure to properly train, discipline, monitor,
control, assign, transfer, supervise, and counsel the police Defendants herein
was done with deliberate indifference and likewise acted as a direct and
proximate cause of the injuries to Plaintiff.
Doc. 95 at ¶¶ 81-84. None of the complaint’s factual allegations pertain to the City’s customs or
policies, and so none buttress this claim. Starks’s brief opposing dismissal mentions four cases
of similar misconduct in Waukegan. Doc. 109 at 12-13.
To state a municipal liability claim under Monell, the plaintiff must allege “that an
official policy or custom not only caused the constitutional violation, but was the moving force
behind it.” Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007)
(internal quotation marks omitted). “An official policy or custom may be established by means
of [1] an express policy, [2] a widespread practice which, although unwritten, is so entrenched
and well-known as to carry the force of policy, or [3] through the actions of an individual who
possesses the authority to make final policy decisions on behalf of the municipality or
corporation.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012); see also
Milestone v. City of Monroe, 665 F.3d 774, 780 (7th Cir. 2011). Starks has not alleged any
express policy, and nor has he referred to any decision by an official policymaker of the City of
Waukegan. The court therefore assumes that he seeks to proceed under the second prong by
establishing a widespread though unwritten practice of fabricating inculpatory evidence and
suppressing exculpatory evidence to secure the prosecution and conviction of innocent people.

16

Starks’s unwritten practice allegations do not satisfy Rule 8(a). Iqbal holds that
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” 556 U.S. at 678. The complaint’s allegations amount to nothing
more than conclusory boilerplate. As the Seventh Circuit has recognized, to allow a plaintiff to
proceed to discovery with Monell allegations like those in Starks’s complaint “would be
tantamount to allowing suit to be filed on a respondeat superior basis. Plaintiffs could file
claims whenever a police officer abused them, add Monell boilerplate allegations, and proceed to
discovery in the hope of turning up some evidence to support the ‘claims’ made.” Strauss v. City
of Chicago, 760 F.2d 765, 768 (7th Cir. 1985). Claims like Starks’s that are “based on wholly
conclusory allegations of a de facto municipal policy … the existence of which is to be inferred
not from something the municipality did but rather from its inaction, constitute one of the most
prevalent forms of abuse in section 1983 actions.” Ibid. (internal quotation marks omitted).
The four other alleged cases of similar misconduct cited in Starks’s brief, which must
also be considered on a Rule 12(b)(6) motion, see Geinosky, 675 F.3d at 745 n.1, do not save the
Monell claim from dismissal. The four other cases are: a § 1983 suit by a person arrested and
convicted for home invasion and sexual assault in 1989, see Dominguez v. Hendley, 545 F.3d
585, 588 (7th Cir. 2008); a state appellate court decision holding that a 2009 conviction had been
supported by insufficient evidence, see People v. Rivera, 962 N.E.2d 53 (Ill. App. 2011); an
account of a failed murder prosecution in 1996, see
www.law.northwestern.edu/legalclinic/wrongfulconvictions/exonerations/il/james-edwards.html;
and the docket of an ongoing civil lawsuit in which the plaintiff alleges that he was prosecuted as
a result of police misconduct in 2005, see Hobbs v. Cappelluti, No. 10 C 7649, Doc. 159 at 2
(N.D. Ill. filed Dec. 1, 2010). Even assuming that these four cases involved misconduct by the

17

Waukegan police similar to that to which Starks allegedly was subjected, five cases (including
Starks’s) over a period of more than twenty years are insufficient to create municipal liability for
a “widespread practice.” In Gable v. City of Chicago, 296 F.3d 531 (7th Cir. 2002), the Seventh
Circuit held that three incidents of constitutional violation within a four-year period “were too
few to indicate that the City had a widespread custom of which City policymakers had reason to
be aware.” Id. at 538. The Seventh Circuit also favorably cited and discussed Denno v. School
Board of Volusia County, 218 F.3d 1267 (11th Cir. 2000), which held that evidence of the same
constitutional violation against four individuals “did not represent a persistent and widespread
practice.” Id. at 1277. Starks’s allegations are similarly, if not more, insufficient.
Starks also seeks to assert a Monell claim against the City for failure to train its officers.
Doc. 95 at ¶ 84. “In limited circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the level of an
official government policy for purposes of § 1983.” Connick v. Thompson, 131 S. Ct. 1350,
1359 (2011). “A municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train. To satisfy the statute, a municipality’s failure to train its
employees in a relevant respect must amount to deliberate indifference to the rights of the
persons with whom the [untrained employees] come into contact.” Ibid. (citation and internal
quotation marks omitted); see also Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). The
complaint has no allegations to that effect. Starks’s failure-to-train allegation is the merest
boilerplate, and so it cannot survive dismissal.
I.

Count V: State Law Malicious Prosecution Claim

The Police Defendants seek dismissal of Count V, which asserts a state law malicious
prosecution claim. “Under Illinois law, the elements of a malicious prosecution are (1)

18

commencement of criminal proceedings by the defendants; (2) termination of that matter in favor
of the plaintiffs; (3) the absence of probable cause for the proceedings; (4) the presence of
malice; and (5) resulting damages.” Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir. 2009)
(citing Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)). Defendants challenge the
malicious prosecution claim on two grounds: (1) that Starks has failed to allege that the
prosecutions were terminated in a manner indicative of his innocence, as required by the second
element; and (2) that Starks has failed to allege that the Police Defendants commenced the
criminal proceeding against him within the meaning of the first element because, as the
Waukegan Defendants put it, “[p]olice do not prosecute, prosecutors do.” Doc. 104 at 13.
“In regard to the second element, a malicious prosecution action cannot be predicated on
underlying criminal proceedings which were terminated in a manner not indicative of the
innocence of the accused.” Swick, 662 N.E.2d at 1242. The question, then, is whether Starks has
failed to adequately allege that the nolle prosequi dismissals of the criminal proceedings against
him were indicative of his innocence. “The abandonment of the proceedings is not indicative of
the innocence of the accused when the nolle prosequi is the result of an agreement or
compromise with the accused, misconduct on the part of the accused for the purpose of
preventing trial, mercy requested or accepted by the accused, the institution of new criminal
proceedings, or the impossibility or impracticability of bringing the accused to trial.” Ibid. For a
nolle prosequi dismissal to satisfy the favorable termination element, “[t]he circumstances
surrounding the abandonment of the criminal proceedings must compel an inference that there
existed a lack of reasonable grounds to pursue the criminal prosecution.” Id. at 1243.
Nothing in the complaint suggests that the dismissals of the criminal charges against
Starks were brought about by an agreement or compromise with Starks, misconduct on the part

19

of Starks for the purpose of preventing trial, mercy requested or accepted by Starks, the
institution of new criminal proceedings against Starks, or the impossibility or impracticability of
bringing him to trial. Rather, taking the alleged facts as true, the inference that there existed a
lack of reasonable grounds to pursue Starks’s prosecution is compelled. The dismissals were the
direct results of the two above-referenced state appellate court decisions, which held that the
evidence against Starks had been undermined and that a jury aware of the true evidence would
more likely than not acquit. See Starks, 975 N.E.2d at 77-78; Starks, 850 N.E.2d at 214. Swick
is distinguishable, since in that case there was no “evidence of the reason for the entry of the
nolle prosequi.” Id. at 1243. Here, the context makes clear that the prosecutor dropped the
charges against Starks because new evidence had exonerated him. Starks has amply alleged that
the prosecutions were terminated in his favor.
As to the first malicious prosecution element, the Police Defendants’ argument that
“[p]olice do not prosecute, prosecutors do,” Doc. 104 at 13, is similarly unavailing. Illinois law
holds that “[l]iability for malicious prosecution is not confined to situations where the defendant
signed a complaint against the plaintiff. Rather, liability extends to all persons who played a
significant role in causing the prosecution of the plaintiff, provided all of the elements of the tort
are present.” Rodgers v. Peoples Gas, Light & Coke Co., 733 N.E.2d 835, 842 (Ill. App. 2000);
see also Allen v. Berger, 784 N.E.2d 367, 370-71 (Ill. App. 2002) (same); Frye v. O’Neill, 520
N.E.2d 1233, 1240 (Ill. App. 1988) (same). The Police Defendants fit that description, since by
leading M.G. to name Starks as her assailant through a suggestive photo array and by getting her
to change her story to strengthen the case against him, Doc. 95 at ¶¶ 14, 21, and also by filing
reports that falsely attributed inculpatory statements to him, id. at ¶¶ 15-18, the Police

20

Defendants directly brought about Starks’s prosecution—at the least, the court must draw that
inference from the allegations at this stage in the litigation.
J.

Count VI: Intentional Infliction of Emotional Distress Claim

In their reply brief, the Police Defendants incorporate by reference the Dentist
Defendants’ argument that Starks’s intentional infliction of emotional distress claim is barred by
the statute of limitations. Doc. 111 at 10. As explained below, the Dentist Defendants are
correct. Moreover, the Dentist Defendants’ arguments apply equally to the Police Defendants.
Accordingly, the emotional distress claim is dismissed.
K.

Count VII: State Law Civil Conspiracy Claim

Count VII advances a claim for civil conspiracy under Illinois law. In their motion to
dismiss, the Waukegan Defendants say only this: “Plaintiff’s state law claim for civil conspiracy
is derivative of his federal claim [of conspiracy to deprive him of his constitutional rights],
discussed above in Section IV. For those same reasons, Plaintiff’s Count VII must also be
dismissed.” Doc. 104 at 14. Because the court has held that the § 1983 conspiracy claim should
not be dismissed, and because Defendants propose no other ground for dismissing the state law
civil conspiracy claim, the motion to dismiss is denied as to that claim.
II.

The Dentist Defendants’ Motion to Dismiss
The Dentist Defendants press four grounds for dismissal: (1) that Starks’s claims are

barred by the applicable statutes of limitations; (2) that the § 1983 claims against them fail
because they are private actors who did not act “under color of” state law; (3) that the § 1983
conspiracy claim fails to satisfy Iqbal; and (4) that the emotional distress claim fails because the
Dentist Defendants have absolute immunity under Illinois law for their testimony at his trial.

21

A.

The Statute of Limitations

The Dentist Defendants contend that several of Starks’s claims are barred by the statute
of limitations. Doc. 102 at 5-8. In their reply brief, however, they acknowledge that the § 1983
failure to intervene claim is aimed only at the Police Defendants, Doc. 110 at 1-2; see Doc. 95 at
¶¶ 70-71 (Count II, referring specifically to “the Defendant officers”), and so the court will not
consider the Dentist Defendants’ limitations arguments as they pertain to that claim.
“A statute of limitations defense, while not normally part of a motion under Rule
12(b)(6), is appropriate where the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an
action is untimely under the governing statute of limitations.” Andonissamy v. Hewlett-Packard
Co., 547 F.3d 841, 847 (7th Cir. 2008) (internal quotation marks omitted). In this case, both
sides agree that the complaint provides the court with all the information it needs to rule on the
statute of limitations arguments. Doc. 102 at 5; Doc. 108 at 5 n.3.
1.

Count I: § 1983 Due Process Claim

As noted above, Count I alleges that Defendants violated Starks’s due process rights by
fabricating inculpatory evidence and suppressing exculpatory evidence during the investigation
and trial, leading to his conviction and incarceration. The parties agree that the statute of
limitations is two years and that Starks filed this suit on January 20, 2009. Doc. 102 at 6; Doc.
108 at 6. Thus, the claim is time-barred if it accrued prior to January 20, 2007. Defendants say
it accrued in October 2006, when Starks was released on bond pending retrial on the sexual
assault charges. Doc. 102 at 6. Starks says that the claim accrued only when the criminal
proceedings against him were terminated in his favor, which happened, he says, when the
charges were dismissed nolle prosequi in May 2012 and January 2013. Doc. 108 at 6.

22

Starks cites Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008), which says that a
Brady claim accrues when the plaintiff is “acquitted,” and Northfield Insurance Co. v. City of
Waukegan, 701 F.3d 1124, 1130-31 (7th Cir. 2012), which states that his due process claim
accrued “on the day of [his] exoneration.” Northfield Insurance arises out of the same facts as
this case—it was an action by the City’s insurers for a declaratory judgment that they had no
duty to defend against Starks’s suit. Id. at 1127. But Starks was never “acquitted,” and it is not
entirely clear whether he was “exonerated” when his convictions were vacated and a retrial
ordered or only when the prosecutor dismissed the charges. Northfield Insurance appears to
address this question, saying that “[i]f the prosecution was abandoned for reasons of Starks’s
innocence, then May 15, 2012 [when the aggravated sexual assault charges were dismissed nolle
prosequi], is the trigger date for his malicious prosecution claim.” 701 F.3d at 1131-32. By
“malicious prosecution claim,” the Seventh Circuit meant Starks’s malicious prosecution,
wrongful prosecution, and due process claims, which it was discussing collectively. Id. at 1130;
see Brooks, 578 F.3d at 579 (holding that a § 1983 due process claim that “essentially contests
the fairness of [the plaintiff’s] prosecution … is … similar to his malicious prosecution claim,
and ‘claims resembling malicious prosecution do not accrue until the prosecution has terminated
in the plaintiff’s favor’”) (quoting Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239
F.3d 892, 896 (7th Cir. 2001)). Thus, Northfield Insurance indicates that Starks’s due process
claim accrued in May 2012, rendering the claim timely.
Even if this over-reads Northfield Insurance, the Dentist Defendants have failed to show
that the due process claim is time-barred. They cite only two cases, Wallace v. Kato, 549 U.S.
384 (2007), and a district court opinion based on Wallace, Johnson v. Garza, 564 F. Supp. 2d
845, 849-50 (N.D. Ill. 2008). Both concern Fourth Amendment claims, not due process claims,

23

and the Seventh Circuit has held that “[a] Brady claim [which arises from the Due Process
Clause] is not controlled by Wallace but rather by Heck v. Humphrey.” Johnson, 515 F.3d at
782. In their reply brief, the Dentist Defendants say that they “cite to Johnson, not because this
case involves a Fourth Amendment unlawful search claim, but rather, for its holding that the
accrual of Plaintiff’s causes of action is his release of custody on October 4, 2006.” Doc. 110 at
2. What this fails to comprehend is that, as Johnson says, the rules governing the accrual of
Fourth Amendment claims are different from those that apply to due process claims. The Dentist
Defendants say that “Plaintiff has not argued against the holding in Johnson as to the accrual
date of his § 1983 claims,” Doc. 110 at 3, but that is wrong because Starks cites a case for the
proposition that “Wallace has no application to a denial of due process claim,” Doc. 108 at 6, and
asserts (correctly) that Johnson is “inapposite” because it “discuss[es] the date of accrual of a
Fourth Amendment unlawful search claim,” id. at 5 & n.1. So Starks has amply rebutted the
argument that the Dentist Defendants actually make: that his due process claim is time-barred
under Johnson and Wallace. The Dentist Defendants’ failure to cite pertinent authority to
support their argument that the due process claim is time-barred forfeits the argument. See
United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“perfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are waived”).
In their reply brief, Defendants at last discuss a relevant precedent—Heck—and contend
that “the nolle prosequi of May 15, 2012 and January 6, 2013 did not terminate the criminal
proceedings in [Starks’s] favor and thus” the claim must be dismissed under Heck. Doc. 110 at
5. For the reasons discussed above, on the facts alleged by Starks, the nolle prosequi dismissals
were terminations in his favor and were indicative of his innocence. Accordingly, the Dentist
Defendants have failed to establish that the due process claim is time-barred.

24

2.

Count III: § 1983 Conspiracy Claim

The Dentist Defendants concede “that a federal conspiracy claim which rests upon a due
process violation accrues at the same time, and has the same limitations period[,] as the
underlying claim.” Doc. 110 at 3. In light of that concession, and because Defendants do not
contend that the conspiracy claim is time-barred if the underlying due process claim is not, their
limitations challenge to the § 1983 conspiracy claim is rejected for the reasons just given with
respect to the due process claim.
3.

Count V: State Law Malicious Prosecution Claim

Defendants treat the malicious prosecution claim together with the due process and
conspiracy claims. Because they have not made any separate argument that it is time-barred, and
because the court has already rejected their contentions with respect to the due process and
conspiracy claims, their limitations challenge to the malicious prosecution claim is also rejected.
In their reply brief, the Dentist Defendants argue for the first time that Count V should be
dismissed because Starks has not adequately alleged that the dismissals nolle prosequi were for
reasons indicative of his innocence. Doc. 110 at 5-7. By failing to introduce this argument prior
to their reply brief, the Dentist Defendants forfeited it. See Narducci, 572 F.3d at 324;
Cromeens, Holloman, Sibert, Inc., 349 F.3d at 389. Even if the argument had been properly
presented, the court would reject it for the same reasons given above with respect to the Police
Defendants’ similar argument.
4.

Count VI: Intentional Infliction of Emotional Distress Claim

Starks concedes that Illinois law subjects intentional infliction of emotional distress
(“IIED”) claims to a one-year statute of limitations. Doc. 108 at 9. The Dentist Defendants
contend that Starks’s emotional distress claim accrued when he was convicted in 1986. Doc. 102

25

at 7. Defendants are correct. In Brooks v. Ross, supra, the Seventh Circuit held that although the
plaintiff’s malicious prosecution and § 1983 due process claims accrued only upon the favorable
termination of the prosecutions, his emotional distress claim arising out of that prosecution
accrued when he was indicted. 578 F.3d at 579. Starks attempts to avoid that result by arguing
that he “has alleged that his emotional distress claim is based on the continuing criminal
prosecutions of him which lasted until May 15, 2012, and January 7, 2013, and that the dentist
Defendants remained involved in those prosecutions by continuing to maintain that their reports
linking Plaintiff to the bite mark on the victim were valid and reliable, and refusing to
acknowledge that they did not have a sufficient basis to make that finding. Thus, the IIED
allegations against the dentist Defendants are based on the facts underlying the malicious
prosecution claim and did not accrue until the prosecutions were terminated.” Doc. 108 at 8-9.
But Brooks addressed and rejected this argument:
It is also clear that the continuing tort rule does not apply in this case. The
Supreme Court of Illinois has stated that “where there is a single overt act
from which subsequent damages may flow, the statute begins to run on the
date the defendant invaded the plaintiff’s interest and inflicted injury, and this
is so despite the continuing nature of the injury.” The single overt act here is
Brooks’s indictment, even if the damages that Brooks suffered may have
continued throughout his trial. We therefore find Brooks’s … state law …
IIED claim[] time-barred.
578 F.3d at 579 (quoting Feltmeier v. Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003)). Thus, although
Starks continued to suffer harm from the Dentist Defendants’ actions throughout his
incarceration and up until the point when the last charge against him was dropped in January
2013, Brooks makes clear that the emotional distress claim accrued when Starks was indicted,
not when he ceased to suffer continuing harm from those actions.
Starks cites Parish v. City of Elkhart, 614 F.3d 677 (7th Cir. 2010), which held that an
IIED claim “could not have [been] brought … until [the plaintiff’s] conviction was disposed of

26

in a manner favorable to him” and therefore had not accrued upon conviction. Id. at 683-84. But
Parish was discussing an emotional distress claim under Indiana law and is therefore inapposite
here, where Illinois law is at issue. Ibid.
5.

Count VII: State Law Civil Conspiracy Claim

As with their malicious prosecution argument, the Dentist Defendants treat their
argument that Starks’s state law civil conspiracy claim is time-barred along with their argument
that his due process claim is time-barred. Doc. 102 at 5-7; Doc. 110 at 7. Accordingly, their
limitations challenge to the civil conspiracy claim is rejected for the reasons given above with
respect to the due process claim.
B.

The State Action Doctrine

The Dentist Defendants next contend that they are private actors who were not acting
“under color of” state law when they performed the actions alleged, as required for liability
under § 1983. Doc. 102 at 8-10. They do not explain why they think they were not acting under
color of state law when they assisted the investigation and prosecution of Starks by asserting that
the bite mark on M.G. had been made by Starks, Doc. 95 at ¶ 25. Precedent holds that “[a]
private defendant acts ‘under color of’ state law for purposes of Section 1983 when it is ‘a
willful participant in joint action with the State or its agents.’” Leahy v. Bd. of Trs. of Cmty.
Coll. Dist. No. 508, 912 F.2d 917, 921 (7th Cir. 1990) (quoting Dennis v. Sparks, 449 U.S. 24,
27 (1980)) (brackets omitted). That description fits Starks’s allegation that the Dentist
Defendants “became involved in the prosecution when they were hired by the prosecution to
compare an alleged bite mark on M.G. with the teeth of” Starks. Doc. 95 at ¶ 24. The Dentist
Defendants do not argue to the contrary; they merely state in conclusory fashion that they were
not acting under color of state law. They are not entitled to dismissal on that ground.

27

Like the Police Defendants, the Dentist Defendants point out that they enjoy absolute
immunity for their trial testimony under Briscoe v. LaHue, supra. This is true, and so they
cannot be held liable on the basis of ¶ 36 of the complaint, which alleges that they “testified
falsely at Plaintiff’s trial that the alleged bite mark on the victim could be reliably linked to
Plaintiff to a reasonable degree of medical certainty when they knew that the information they
had did not support such a statement.” But as with the Police Defendants, the complaint includes
other allegations against the Dentist Defendants that are not covered by Briscoe, Doc. 95 at
¶¶ 24-27, and so Briscoe does not require dismissal of any count of the complaint.
C.

Count III: § 1983 Conspiracy Claim

The Dentist Defendants next argue that the § 1983 conspiracy claim against them must be
dismissed because its allegations are insufficiently concrete and specific to state a claim. The
court rejects this argument for substantially the same reasons given above with respect to the
Police Defendants’ similar argument. As discussed above, Starks has adequately alleged that the
Police Defendants, the Dentist Defendants, and Thomas-Boyd all made false statements intended
to secure his conviction. A highly plausible inference from these allegations is that Defendants
had all agreed among themselves to contribute to the effort to secure that conviction, as it is
unlikely that each of them independently decided to lie to the prosecutors in order to send an
innocent man to prison. See Geinosky, 675 F.3d at 749.
The Dentist Defendants rely heavily on Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009).
The plaintiff in that case, Cooney, was a mother who had “lost custody of her two sons after an
Illinois state court found that she suffered from ‘Munchausen syndrome by proxy,’ in which an
individual produces or feigns physical or emotional symptoms in another person under his or her
care. Usually the victim is a young child, and the person producing the symptoms may be the

28

child’s parent or caretaker, most often the mother.” Id. at 969 (internal quotation marks
omitted). Cooney had divorced her husband and been awarded custody of their two sons, but the
ex-husband had filed a petition to transfer custody to himself. Ibid. The child custody court
appointed a man named Bischoff to be the children’s representative—a hybrid between a child’s
attorney and a guardian ad litem—and Bischoff appointed a man named Rossiter to be the
children’s psychiatrist. Ibid. Rossiter concluded that Cooney was exhibiting signs of
Munchausen by proxy, the father’s attorney asked the court for an emergency order of
protection, and the court granted the order with the statement that Cooney was “armed and
suicidal” and transferred custody to the father. Id. at 969-70. Cooney claimed that Bischoff had
“orchestrated” a plot with the other persons just mentioned to deprive her of custody of her
children, and sued all of them for conspiracy under § 1983. Id. at 970. The Seventh Circuit
affirmed the dismissal of this claim under Iqbal, saying that the complaint was “bereft of any
suggestion, beyond a bare conclusion, that the … defendants were leagued in a conspiracy ….
No factual allegations tie the defendants to a conspiracy with a state actor.” Id. at 971.
Cooney is inapposite. Central to Iqbal is the proposition that “[d]etermining whether a
complaint states a plausible claim for relief will … be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” 556 U.S. at 679. As
discussed above, common sense permits the inference that Defendants were leagued together to
deprive Starks of his constitutional rights; their parallel actions are otherwise difficult to explain.
Moreover, the context-specific nature of the inquiry militates against reliance on Cooney, which
the Seventh Circuit said was potentially “paranoid pro se litigation, arising out of a bitter custody
fight and alleging … a vast, encompassing conspiracy.” 583 F.3d at 971. Starks is not paranoid;

29

the Appellate Court of Illinois has credited his contention that his convictions resulted from false
statements by Defendants. The § 1983 conspiracy claim therefore survives dismissal.
D.

Count VI: Intentional Infliction of Emotional Distress Claim

Finally, the Dentist Defendants contend that they are entitled to dismissal of the
intentional infliction of emotional distress claim because they have absolute immunity for their
testimony at his trial under Illinois law. Doc. 102 at 12-14. The court has already held that the
Dentist Defendants are entitled to dismissal of this claim on limitations grounds, so this
argument need not be considered.
Conclusion
The Waukegan Defendants’ motion to dismiss is granted with respect to the Monell and
intentional infliction of emotional distress claims and otherwise is denied. The Dentist
Defendants’ motion to dismiss is granted with respect to the emotional distress claim and
otherwise is denied. The dismissal of the emotional distress claim is with prejudice because the
flaw in that claim, the statute of limitations, cannot be cured by repleading. See Rosenfield v.
HSBC Bank, USA, 681 F.3d 1172, 1189-90 (10th Cir. 2012) (affirming the district court’s
rejection of the plaintiff’s request for leave to amend where the amendment would have been
futile because the claims were untimely); Dodds v. Cigna Sec., Inc., 12 F.3d 346, 353 (2d Cir.
1993) (same); see generally Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir. 2012) (“District
courts have broad discretion to deny leave to amend … where the amendment would be futile.”)
(internal quotation marks omitted). The dismissal of the Monell claim is without prejudice
because it is possible that the flaw in that claim can be cured by repleading. See Bogie v.
Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013) (“When a complaint fails to state a claim for relief,
the plaintiff should ordinarily be given an opportunity, at least upon request, to amend the

30

complaint to correct the problem if possible.”); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th
Cir. 2010) (“As a general matter, Rule 15 ordinarily requires that leave to amend be granted at
least once when there is a potentially curable problem with the complaint or other pleading.”). If
Starks wishes to replead the Monell claim, he must do so by June 11, 2013.

May 21, 2013
United States District Judge

31