Frederickson v. County of Will et al

Filing 137

MEMORANDUM Opinion and Order: Defendants' motion to dismiss 117 is granted in part and denied in part. The Bolingbrook Defendants also seek to have Sergeant Gunty dismissed from the case on statute of limitations grounds. Frederickson conce des this argument, and does not contest Sergeant Gunty's dismissal. See R. 132 at 12. For this reason, Frederickson's claims against Sergeant Gunty are dismissed. Sergeant Gunty terminated. Signed by the Honorable Thomas M. Durkin on 10/29/2015:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REX ALLEN FREDERICKSON,
Plaintiff,
No. 11 C 3484

v.
DETECTIVE TIZOC LANDEROS; DETECTIVE
SCARPETTA; UNIDENTIFIED OFFICERS OF
THE JOLIET POLICE DEPARTMENT;
DETECTIVE BRICK; DETECTIVE TALBOT;
SERGEARNT GUNTY; UNIDENTIFIED
OFFICERS OF THE BOLINGBROOK POLICE
DEPARTMENT,

Judge Thomas M. Durkin

Defendants.
MEMORANDUM OPINION AND ORDER
Sergeant Gunty, Detective Joseph Brick, Detective Sean Talbot, and other
unidentified officers of the Bolingbrook Police Department (the “Bolingbrook
Defendants”) have moved to dismiss Count V of Frederickson’s complaint, which
alleges a civil conspiracy in violation of Illinois law, and to dismiss all claims
against Sergeant Gunty. R. 117. That motion is denied in part and granted in part.
The Bolingbrook Defendants argue that they are immune to Count V
pursuant to Section 2-201 of the Illinois Tort Immunity Act, which provides:
Except as otherwise provided by Statute, a public
employee serving in a position involving the
determination of policy or the exercise of discretion is not
liable for an injury resulting from his act or omission in
determining policy when acting in the exercise of such
discretion even though abused.

745 ILCS 10/2-201. According to the Illinois Supreme Court, for immunity to apply,
the Bolingbrook Defendants’ actions must have been “both a determination of policy
and an exercise of discretion.” Van Meter v. Darien Park Dist., 799 N.E.2d 273, 283
(Ill. 2003). A policy decision requires “a government entity to balance competing
interests and to make a judgment call as to what solution will best serve those
interests.” Van Meter, 799 N.E.2d at 283. Further, under Illinois law, “discretionary
actions” are distinguished from “ministerial actions.” See Harrison v. Hardin Cnty.
Cmty. Unit Sch. Dist. No. 1, 758 N.E.2d 848, 852 (Ill. 2001). The Illinois Supreme
Court has held that whether an action is discretionary or ministerial “resists precise
formulation and . . . [such a] determination . . . must be made on a case-by-case
basis.” Snyder v. Curran Twp., 657 N.E.2d 988, 992-93 (Ill. 1992).
Section 2-201 is an affirmative defense for which the Bolingbrook Defendants
bear the burden of proof. See Lane v. Dupage Cnty. Sch. Dist. 45, 2014 WL 518445,
at *3 (N.D. Ill. Feb. 10, 2014); see also Van Meter, 799 N.E.2d at 280 (“Because the
immunities afforded to governmental entities operate as an affirmative defense,
those entities bear the burden of properly raising and proving their immunity under
the Act.”). Accordingly, the issue here is whether Frederickson’s allegations
establish as a matter of law that the Bolingbrook Defendants’ actions were policy
determinations and discretionary. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th
Cir. 2001) (“Because an immunity defense usually depends on the facts of the case,
dismissal at the pleading state is inappropriate . . . .”).

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Frederickson’s

allegations

do

not

allow

for

such

a

determination.

Frederickson alleges that the Bolingbrook Defendants conspired with the Joliet
defendants to harass Frederickson by preventing him from moving to Bolingbrook
and requiring him to remain in Joliet. There is nothing about Frederickson’s
allegations that would provide a basis to find that the Bolingbrook Defendants’
“balance[d] competing interests” and made a policy decision in addressing
Frederickson’s registration attempts.
Additionally, Frederickson alleges that the Illinois Sex Offender Registration
Act (“SORA”) requires a police department to document the registration by a person
without a fixed residence if that person reports to the sheriff or chief of police in his
community at the designated time. See R. 115 ¶ 18. With this allegation,
Frederickson alleges that the Bolingbrook Defendants had a ministerial—as
opposed to discretionary—duty to register him when he appeared. Frederickson also
identifies a number of provisions in the SORA that impose non-discretionary duties
on police departments in Illinois. See R. 132 at 10-11.
The Bolingbrook Defendants argue that they denied Frederickson’s attempt
to register in Bolingbrook because they could not verify his address, and the Joliet
defendants told them that Frederickson was attempting to register in Bolingbrook
under false pretenses. The Bolingbrook Defendants argue that these facts
demonstrate that they were engaged in policy making and discretionary decisions.
But this argument is based on alleged facts that are not included in
Frederickson’s complaint, and which actually contradict Frederickson’s allegations.

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The Seventh Circuit has held that such questions of fact preclude application of
Section 2-201 immunity at the summary judgment stage. See Valentino v. Village of
South Chicago Heights, 575 F.3d 664, 679 (7th Cir. 2009) (holding that a mayor who
fired an employee after she exposed corrupt practices in the mayor’s office was not
immune from retaliatory discharge). And a number of courts in this district have
denied motions to dismiss where similar factual disputes were present. See Weiler v.
Village of Oak Lawn, 86 F. Supp. 3d 874, 885 (N.D. Ill. 2015) (“[T]here is a factual
dispute concerning whether [the defendant] was determining policy when he
recommended the elimination of [the plaintiff’s] department. Accepting [the
plaintiff’s] allegations as true, [the defendant] was not balancing competing
interests; rather, he proposed the reorganization to retaliate against [the plaintiff] .
. . .”); Lane, 2014 WL 518445, at *4 (“The Court, however, cannot determine from
the allegations in the Second Amended Complaint whether [the defendant’s actions]
required both a determination of policy and an exercise of discretion.”); Thompson v.
Bd. of Educ. of City of Chi., 2013 WL 4080650, at *4 (N.D. Ill. Aug. 13, 2013);
Thompson v. Evans, 2012 WL 401503, at *2 (N.D. Ill. Feb. 6, 2012); McDonald v.
Camarillo, 2010 WL 4483314, at *2 (N.D. Ill. Nov. 1, 2010); see also Hogan v. Smith,
2012 WL 1435402, at *3 (S.D. Ill. Apr. 25, 2012) (“The act of training and
supervision in question could easily be ministerial rather than discretionary, and
[the defendants] do not point to any allegations in the complaint to contradict this
possibility.”); Doe 20 v. Bd. of Educ. of Comm. Unit Sch. Dist. No. 5, 680 F. Supp. 2d
957, 991 (C.D. Ill. Jan. 11, 2010) (“[T]he Court does not believe it [is] clear that § 2-

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201 immunity applies to the failure to supervise claims. . . . A more developed
record is needed regarding both the type of position held by the employee and the
type of actions performed or omitted by the employee.”) (emphasis in original).
Therefore, the Court finds that the Bolingbrook Defendants are not entitled to
Section 2-201 immunity at this stage of the case.
The Bolingbrook Defendants also seek to have Sergeant Gunty dismissed
from the case on statute of limitations grounds. Frederickson concedes this
argument, and does not contest Sergeant Gunty’s dismissal. See R. 132 at 12. For
this reason, Frederickson’s claims against Sergeant Gunty are dismissed.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: October 29, 2015

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