Freeman v. Brown et al

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 8/29/2012:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENNIS FREEMAN,
Plaintiff,
v.
DOROTHY BROWN, MELVIN DARBY,
JERRY DAVIS, DAVID CAMMACK,
JAMES JOHNSTON, JAMES DAVIS, and
COOK COUNTY,
Defendants.

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No. 11 CV 05899
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Dennis Freeman sued Cook County and a group of Cook County deputy
sheriffs, as well as Cook County Clerk of the Circuit Court Dorothy Brown and two
Clerk’s office employees, Melvin E. Darby, and Jerry Davis (collectively, “Clerk
Defendants”). Freemen alleges that the defendants violated his Fourth and Fourteenth
Amendment rights under 42 U.S.C. § 1983.1 Freeman also asserts a state-law
malicious prosecution claim against the Clerk’s Office Defendants and the Cook County
deputies. The Clerk Defendants have moved to dismiss Freeman’s complaint for failure
to state a claim. Fed. R. Civ. P. 12(b)(6). R. 15. For the following reasons, Defendants’
motion is denied.

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This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and has
supplemental jurisdiction over Plaintiff’s state law claim under 28 U.S.C. § 1367(a).

I.
At this stage of the litigation, we accept Freeman’s allegations as true and draw
reasonable inferences in his favor. On November 3, 2009, during a 3½-hour time span,
from 11:49 a.m. to 3:30 p.m., Freeman called Clerk Brown’s officially-published phone
number and left six voicemail messages. R. 1, Compl. ¶ 12. Freeman left his name and
telephone number with each message. Id. According to Freeman, none of the messages
contained any threats. Id. ¶ 13. Freeman alleges that the messages expressed his
dissatisfaction with Brown and her office, and that the First Amendment protected the
statements he made.2 Id.
On December 3, 2009, Freeman left his home and entered his vehicle, which was
then disabled by law enforcement with an electronic device. Id. ¶¶ 8, 10. After
disabling Freeman’s vehicle, law enforcement approached Freeman, removed him from
his vehicle, and took him into custody. Id. ¶ 9. Freeman was then interrogated about
the six telephone messages he left on Clerk Brown’s office number. Id. ¶ 12. Freeman
was held in custody for over 48 hours, and was not brought before a magistrate judge.
Id. ¶¶ 14-15.
On December 5, 2009, after listening to the telephone messages, the State’s
Attorney’s Office chose not to pursue felony charges. Id. ¶ 16. But Darby, who is
employed by the Clerk’s Office as Director of Security, signed a complaint against
Freeman for a state-law misdemeanor, specifically, Harassment by Telephone. Id. ¶¶

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It is worth noting, however, that the complaint does not mention a violation of
Freeman’s First Amendment rights.

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4, 16. The criminal complaint named Brown as the alleged victim of the harassment.
Id. ¶ 16. Davis allegedly also claimed that the phone messages were threatening; Davis
works for the Clerk’s Office as Chief Investigator. Id. ¶¶ 4, 22. Freeman was charged
with a Class A Misdemeanor for Harassment by Telephone under the Illinois
Harassing and Obscene Communications Act, 720 ILCS 135/1-1. Id. ¶ 17. Freeman was
released from custody on the same day as his arrest (December 5). Id. On September
16, 2011, all charges against Freeman were dismissed. Id. ¶ 18. Freeman contends that
all charges were resolved in his favor. Id.
Freeman filed this lawsuit in December 2011. He alleges that the Clerk
Defendants—Dorothy Brown, Melvin E. Darby, and Jerry Davis—among others,
deprived him of his Fourth Amendment right to be free from unlawful seizure, arrest,
and restraint by having him arrested without probable cause. Id. ¶¶ 42-43. He alleges
that the Clerk Defendants caused the deprivation, in part, by claiming that Freeman
had harassed and threatened Clerk Brown when he had not. Id. ¶¶ 45-46. Freeman
also alleges that the Clerk Defendants engaged in malicious prosecution without
probable cause by signing a criminal complaint that charged him with Harassment by
Telephone. Id. ¶¶ 20-25. Freeman contends that the Defendants knew they were
making false allegations because they had listened to, or had the opportunity to listen
to, the six voicemail messages. Id. ¶ 23. Freeman alleges that the Defendants were
motivated by malice because of the insulting nature of the messages. Id. ¶ 25. The
Clerk Defendants filed a motion to dismiss, which is now before this Court. R. 15.

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II.
Under the Federal Rules of Civil Procedure, a complaint generally need only
include “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atl. v. Twombly, 550 U.S. 544, 545 (2007). The Seventh Circuit has explained that this
rule “reflects a liberal notice pleading regime, which is intended to ‘focus litigation on
the merits of a claim’ rather than on technicalities that might keep plaintiffs out of
court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state
a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a defendant’s
motion to dismiss, a judge must accept as true all of the factual allegations contained
in the complaint.” Erickson v. Pardus, 551 U.S. 89 (2007); McGowan v. Hulick, 612
F.3d 636, 637 (7th Cir. 2010) (courts accept factual allegations as true and draw all
reasonable inferences in plaintiff’s favor). A “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). These
allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of

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truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at
679-80.
III.
A.
Section 1983 provides a cause of action against a person, who, acting under color
of state law, deprives an individual of any “rights, privileges, or immunities secured
by the Constitution and laws” of the United States. Livadas v. Bradshaw, 512 U.S. 107,
132 (1994) (quoting 42 U.S.C. § 1983). It provides the procedural vehicle for bringing
suit as a “method for vindicating federal rights elsewhere conferred.” Graham v.
Connor, 490 U.S. 386, 393-94 (1989). The plaintiff must identify the specific
constitutional right that was infringed. Id. at 394. Here, Freeman’s federal claim
against Defendants Brown, Darby, and Davis alleges that Defendants violated his
Fourth Amendment right to be free from unreasonable seizure, arrest, and restraint.
R. 1 ¶¶ 41-47. In moving to dismiss Freeman’s § 1983 claim, the Clerk Defendants
advance several arguments, to which the opinion now turns.
1.
First, the Clerk Defendants argue that Freeman cannot state a claim for false
arrest under the Fourth Amendment because Freeman’s own complaint demonstrates
that there was probable cause to believe that the telephone calls to the Clerk’s Office
violated Section 1-1(2) of the Illinois Harassing and Obscene Communications Act, 720
ILCS 135/1-1. R. 16 at 5-7. The probable cause inquiry is an objective one. Carmichael
v. Vill. of Palatine., 605 F.3d 451, 457 (7th Cir. 2010). “Probable cause exists if, at the
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time of the arrest, the facts and circumstances within the defendant’s knowledge are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed . . . an offense.” Stokes v. Bd. of
Educ. of the City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010) (internal citations
omitted). A court evaluates probable cause not with the benefit of hindsight, “but on
the facts as they appeared to a reasonable person in the defendant’s position, even if
that reasonable belief turned out to be incorrect.” Id. The resolution of the question of
whether probable cause exists typically falls within the province of the jury; however,
a conclusion that probable cause exists as a matter of law is appropriate when there
is no room for a difference of opinion concerning the facts or the reasonable inferences
to be drawn from them. See Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467, 473
(7th Cir. 1997) (internal citations omitted).
In this case, contrary to Defendants’ argument, Freeman alleges sufficient facts
to support his claim that Defendants did not have probable cause to arrest him. A jury
might later find otherwise, or discovery might disclose that summary judgment against
Freeman is appropriate, but at this stage, the complaint survives. Specifically, the
complaint alleges that the voicemail messages contained no threats. R. 1 ¶ 23.
Freeman contends that all messages simply expressed his dissatisfaction with the
Clerk’s Office and Clerk Brown. Id. Although not overwhelming, these facts—when
construed in Freeman’s favor, as we must at this stage of the litigation—sufficiently
allege that the defendants did not have probable cause to cause the arrest of Freeman
for Harassment by Telephone.
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Moreover, in arguing for dismissal, Defendants have taken out of context
Freeman’s allegation that the messages were “insulting.” When read in context and in
the light most favorable to the plaintiff, Freeman’s use of the term “insulting” does not
relate to his intent to harass and does not equate the messages’ content to a threat, as
argued by the Defendants, but rather “insulting” merely describes Freeman’s messages
as expressing his dissatisfaction toward Clerk Brown and her staff. Indeed, it is not
even clear that Freeman’s own characterization of the messages as “insulting,”
whatever that precisely means, will have direct relevance to a jury’s evaluation of
whether there was probable cause to believe the messages constituted threats. Upon
further development of the factual record, Defendants may ultimately be able to
establish that they had probable cause to arrest Freeman, but at this stage of the
proceedings, when the complaint is read as a whole, it is plausible that the Defendants
lacked probable cause at the time of the arrest. Accordingly, the Court concludes that
the allegations in the complaint do not definitively establish the existence of probable
cause such that dismissal of the complaint is permitted.
2.
The Clerk Defendants also argue that they are entitled to qualified immunity.
R. 16 at 7. Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important
interests-the need to hold public officials accountable when they exercise power
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irresponsibly and the need to shield public officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). Put another way, the general purpose of qualified immunity is “to
provide government officials with the ability ‘reasonably [to] anticipate when their
conduct may give rise to liability for damages.’ ” Anderson v. Creighton, 483 U.S. 635,
646 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).
Qualified immunity analysis comprises two parts: (1) whether the facts alleged
amount to a constitutional violation, and (2) whether the violation was clearly
established at the time of the defendant’s conduct. Pearson, 555 U.S. at 236 (overruling
mandatory sequential two-step procedure of Saucier v. Katz, 553 U.S. 194 (2001)).
Courts have discretion to consider whether the violation was clearly established before
(or in some cases, without) determining whether the conduct amounts to a
constitutional violation. Id. at 236-39.
Here, it should first be noted, “a complaint is generally not dismissed under Rule
12(b)(6) on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651-52
(7th Cir. 2001) (citing Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000)).
“Rule 12(b)(6) is a mismatch for immunity and almost always a bad ground for
dismissal . . . [as] when defendants do assert immunity it is essential to consider facts
in addition to those in the complaint.” Id. (internal citations omitted).
Moreover, in this case specifically, the Defendants’ qualified immunity claim
suffers from a separate defect. Here, the Defendants’ qualified immunity claim is based
entirely on the assumption that the complaint establishes probable cause. R. 16 at 7.
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The Defendants argue that because probable cause existed at the time of arrest,
Freeman’s constitutional rights were not violated. Id. However, as discussed above,
this Court cannot conclude from this record that probable cause existed as a matter of
law at the time of Freeman’s arrest. Assuming no probable cause existed at the time
of arrest, the Defendants should have known that they were infringing on Freeman’s
constitutional rights as arresting a person without probable cause—here, based on
allegedly non-threatening voicemail messages—is clearly a violation of the Fourth
Amendment. And Defendants do not separately develop an argument for qualified
immunity beyond the lack of probable cause. Accordingly, for the above reasons,
Defendants’ motion to dismiss based on qualified immunity is denied.
3.
Finally, Defendants argue, with respect to Clerk Brown, that Freeman failed to
allege that Clerk Brown was personally involved in the seizure, arrest, and restraint
of Freeman. R. 16 at 4. To be sure, it is well established that personal involvement is
a prerequisite for individual liability in a § 1983 action. See Gossmeyer v. McDonald,
128 F.3d 481, 495 (7th Cir. 2000); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.
1983) (finding that an individual cannot be held liable in a §1983 action unless he
caused or participated in an alleged constitutional deprivation). The doctrine of
respondeat superior does not apply to actions filed under § 1983. See Gossmeyer, 128
F.3d at 495. To be held liable under § 1983, “supervisors must know about [their
subordinate’s] conduct and facilitate it, approve it, condone it, or turn a blind eye for

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fear of what they might see. They must in other words act either knowingly or with
deliberate, reckless indifference.” Lanigan, 110 F.3d at 477.
Here, contrary to Clerk Brown’s assertions, Freeman’s allegations are sufficient
to allege Clerk Brown’s personal involvement in the constitutional violations at issue.
In his complaint, Freeman alleges that Clerk Brown listened (or had an opportunity
to listen) to the telephone messages, knew the messages were not threatening, and
supported the instigation of false allegations against Freeman. R. 1 ¶¶ 22-23. Taking
these facts as true, the Court concludes that it is plausible that Clerk Brown personally
participated in Freeman’s alleged false arrest by knowingly condoning Darby’s act to
initiate a false arrest complaint against Freeman for Harassment by Telephone.
Discovery might show otherwise, of course, but dismissal under Rule 12(b)(6) is not
appropriate at this stage of the case. Accordingly, the complaint alleges sufficient facts
to defeat Clerk Brown’s motion to dismiss based on lack of personal involvement.
B.
Freeman also brings a malicious prosecution claim. Under Illinois law, the
elements of a malicious prosecution claim are (1) commencement of criminal
proceedings by the defendants; (2) termination of that matter in favor of the plaintiff;
(3) the absence of probable cause for the proceedings; (4) the presence of malice; and
(5) resulting damages. See Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir.2009)
(citing Swick v. Liautaud, 662 N.E.2d 1238 (Ill. 1996)). With respect to the second
element, a plaintiff must show that the underlying criminal proceedings were
terminated in a manner that is indicative of his innocence. Id. The absence of any one
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of these elements bars a plaintiff from pursuing the claim. See Swick, 662 N.E.2d at
1242.
Defendants seek dismissal of Freeman’s malicious prosecution claim on the
grounds that: (1) probable cause existed for the proceedings; (2) because probable
existed, he cannot allege the requisite malice; and (3) Freeman failed to sufficiently
plead that Clerk Brown commenced or continued a civil or criminal proceeding against
him. R. 16 at 8-11.
1.
First, as discussed above, in this case, the existence of probable cause cannot be
determined against Freeman as a matter of law at this stage in the proceedings.
Accordingly, because Freeman has adequately alleged that probable cause did not exist
for his arrest—an allegation that the Court must accept as true—Freeman’s malicious
prosecution claim will not be dismissed on this ground.
2.
Likewise, Freeman’s malicious prosecution claim will not be dismissed on the
grounds that Freeman cannot establish the requisite malice. Once again, the
Defendants’ argument rests entirely on the assumption that probable cause exists, R.
19 at 5-7, which the Court does not believe can be determined at this stage. Thus,
Freeman’s claim will not be dismissed on this ground either.

3.

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Finally, Clerk Brown claims that Freeman failed to sufficiently plead that she
commenced or continued his misdemeanor prosecution for Harassment by Telephone.
Under Illinois law, “criminal proceedings are commenced by the filing of a complaint,
an indictment or an information. Illinois law requires that, in order to commence or
continue a criminal proceeding, the defendant must have initiated the criminal
proceeding or his participation in it must have been of so active and positive a
character as to amount to advice and cooperation.” Logan v. Caterpillar, Inc., 246 F.3d
912, 922 (7th Cir. 2001) (internal citations omitted). The commencement requirement
is also satisfied if the defendant knowingly made false statements to the police. See
Allen v. Berger, 784 N.E.2d 367, 370 (2002) (“[W]hen a person makes a knowingly false
report to a prosecuting officer, the resulting prosecution is attributable to that
person.”).
Here, Freeman alleges that Defendants Brown, Darby, and Davis knew that the
allegations they provided to the police—that Freeman had threatened Clerk
Brown—were false because they had listened to, or had the opportunity to listen to, the
six voicemail messages left by Freeman. R. 1 ¶¶ 22-23. Assuming this is true, Clerk
Brown would be responsible, in part, for Freeman’s prosecution because she is alleged
to have actively participated in and cooperated with the making of a report to a
prosecuting officer that she knew was false and that contributed to the commencement
of the criminal proceedings against Freeman. Id. at 370. See Wallace v. City of Zion,
2011 WL 3205495, *5 (N.D. Ill. July 28, 2011) (finding commencement element
satisfied where plaintiffs alleged that defendant made false statements which
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contributed to the commencement of the criminal proceedings against them). Cf.
Logan, 246 F.3d at 922 (finding defendants did not commence criminal proceedings
where it was undisputed that defendants did not file a complaint against plaintiff nor
were alleged to have knowingly provided false information to the police). Again,
discovery might show otherwise, but Clerk Brown’s personal involvement is sufficiently
alleged. Accordingly, the Court will not dismiss Freeman’s malicious prosecution claim
on the ground that Freeman failed to sufficiently plead that Clerk Brown commenced
or continued a civil or criminal proceeding against him.
IV.
For the reasons discussed above, the Clerk Defendants’—Dorothy Brown, Melvin
E. Darby, and Jerry Davis—motion to dismiss is denied. R. 15.

ENTERED:
___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: August 29, 2012

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