Rotheimer v. Kalata et al

Filing 43

MEMORANDUM Opinion and Order entered by the Honorable John W. Darrah on 4/17/2013. Mailed notice (tlm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADAM ROTHEIMER,
Plaintiff,
v.
ERIC KALATA,
Assistant State’s Attorney;
STEPHEN SCHELLER,
Assistant State’s Attorney;
MARC BANGSER,
Assistant State’s Attorney;
DAN BROWN,
Assistant State’s Attorney;
MICHAEL J. WALLER,
Former Lake County State’s Attorney;
PAUL WARNER, Former Lake County
Sheriff’s Office Detective;
WILLIS S. WERNER, Former Lake
County Sheriff’s Office Lieutenant;
MARK CURRAN, Lake County Sheriff;
Defendants.

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Case No. 12-cv-1629
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff Adam Rotheimer filed suit on March 6, 2012, against
Defendants Eric Kalata, Stephen Scheller, Marc Bangser, Dan Brown, Michael J. Waller
(collectively, “State’s Attorney Defendants”), Paul Warner, Willis Werner, and Mark
Curran (collectively, “Sheriff Defendants”). Plaintiff amended his complaint on
November 19, 2012, alleging five separate counts: (I) a violation of his Fourteenth
Amendment right to due process, pursuant to 42 U.S.C. § 1983; (II) conspiracy, under 42
U.S.C. § 1985; (III) malicious prosecution under Illinois state law; (IV) a state law claim

of respondeat superior; and (V) a state law claim of indemnification. (Am. Compl. ¶¶
36-58.) Defendants move to dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P.
12(b)(6). This motion has been fully briefed and is ripe for ruling.
BACKGROUND
Plaintiff is a resident of McHenry, Illinois. (Am. Compl. ¶ 1.) On or about
March 9, 2010, a social worker at Centegra Memorial Hospital in McHenry County,
Illinois, called Defendant Werner, a detective, and informed Werner that Plaintiff was an
in-patient resident of the hospital. (Id. ¶ 11.) The social worker explained to Werner that
Plaintiff had expressed a threat against a judge; Plaintiff apparently told the social worker
he had developed a romantic relationship with the judge’s daughter and stolen money
from the judge. (Id. ¶ 12.) Werner informed Judge Brian Hughes, a Lake County Circuit
Court Judge, of this threat; but Judge Hughes told Werner he did not have a daughter and
did not understand the threat. (Id. ¶¶ 14-15.) Plaintiff was discharged from Centegra
Memorial Hospital on or about March 12, 2010.
That same day, Plaintiff was then charged with threatening a public official,
arrested, and detained in the Lake County, Illinois jail, where he remained from March
12, 2010 through April 21, 2010. (Id. ¶¶ 16, 18-19, 29.) Plaintiff challenged the
jurisdiction of the Lake County court over his charge, and the matter was transferred to
McHenry County. (Id. ¶¶ 30-31.) The McHenry County State’s Attorney filed a motion
for entry of a nolle prosequi judgment, and the case against Plaintiff was dismissed on
July 8, 2010. (Id. ¶ 32.)

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Plaintiff alleges the actions of Defendants were illegal, in that Defendants did not
have “jurisdiction to investigate, initiate, arrest or prosecute the Plaintiff.” (Id. ¶ 33.)
Following dismissal of the charges, Plaintiff filed his lawsuit against Defendants,
amending the Complaint on November 19, 2012. Defendants argue Plaintiff’s state law
claims are barred by the applicable statute of limitations, and further assert that the claims
fail on the basis of prosecutorial immunity and on Plaintiff’s failure to state claims upon
which relief may be granted.
LEGAL STANDARD
To properly assert a claim in a complaint, the plaintiff must present “a short and
plain statement of the claim showing that the pleader is entitled to relief and a demand for
the relief sought.” Fed. R. Civ. P. 8. Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (Iqbal) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Twombly)). While a court is to
accept all allegations contained in a complaint as true, this principle does not extend to
legal conclusions. Iqbal, 129 S. Ct. at 1949.
A defendant may file a motion to dismiss a claim under Federal Rule 12(b)(6) for
failure to state a claim upon which relief may be granted. To defeat a motion to dismiss
under Rule 12(b)(6), a plaintiff must plead sufficient factual matter to state a claim for
relief that is “plausible on its face.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S.
at 570). A claim is facially plausible “when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
However, “[w]here the well-settled pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1950. For a claim
to be plausible, the plaintiff must put forth enough “facts to raise a reasonable expectation
that discovery will reveal evidence” supporting the plaintiff’s allegations. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Twombly, 550 U.S. at 556). At issue in
a 12(b)(6) motion is “not whether a plaintiff will ultimately prevail” but whether the
plaintiff is entitled to present evidence to support the claims alleged. AnchorBank, FSB
v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011) (internal quotation and citation omitted).
The defendant may assert a statute of limitations defense in a Rule 12(b)(6)
motion to dismiss 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.” United States v. Lewis,
411 F.3d 838, 842 (7th Cir. 2005) (Lewis).
ANALYSIS
Statute of Limitations
Defendants first attack Counts III, IV, and V of Plaintiff’s Amended Complaint,
which allege claims of malicious prosecution, respondeat superior, and indemnification
under Illinois law. In their Motion to Dismiss, Defendants rely upon the Illinois Local
Government and Governmental Employees Tort Immunity Act, which provides “[n]o

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civil action . . . may be commenced in any court against a local entity or any of its
employees for any injury unless it is commenced within one year from the date that the
injury was received or the cause of action accrued.” 745 ILCS 10/8-101. “[A] federal
court applies to state-law claims the same limitations period a state court would apply.”
Long v. Williams, 155 F. Supp. 2d 938, 943 (N.D. Ill. 2001) (quoting Ellis v. City of
Chicago, No. 2000 C 2457, 2000 WL 1774084, at *6 (N.D. Ill. Dec. 1, 2000). The
relevant statute of limitations for the charges brought against Defendants was one year.
By Plaintiff’s own admissions, the latest his injuries could have accrued was on
July 8, 2010, when the case was dismissed. (Am. Compl. ¶ 32.) Moreover, Plaintiff fails
to address the time bar in his response to the motion; “failure to offer any opposition to
[Defendants’] statute of limitations argument constitute[s] a waiver.” Wojtas v. Capital
Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007). While statute of limitations
defenses are not typically raised in a Rule 12(b)(6) motion, the defense is appropriate
where “a complaint plainly reveals that an action is untimely under the governing statute
of limitations.” Lewis, 411 F.3d at 842. Therefore, because Plaintiff failed to file these
state-law claims within one year of the injuries accruing and failed to present any
argument in response to this defense, Plaintiff’s state-law claims are barred.
State’s Attorney Defendants and Prosecutorial Immunity
The remaining counts of Plaintiff’s Amended Complaint involve a Section 1983
due process claim and a Section 1985 conspiracy claim. However, these claims, as they
are alleged against the State’s Attorney Defendants, are barred by prosecutorial
immunity. Prosecutors have absolute immunity when “‘initiating a prosecution and . . .

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presenting the State’s case’ as long as their conduct is ‘intimately associated with the
judicial phase of the criminal process.’” Boloun v. Williams, Case No. 00 C 7584, 2002
WL 31426647, at *10 (N.D. Ill. Oct. 25, 2002) (quoting Imbler v. Pachtman, 424 U.S.
409, 430-31 (1976)). “This immunity shields the prosecutor even if he initiates charges
maliciously, unreasonably, without probable cause, or even on the basis of false
testimony or evidence.” Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir.
1986).
Plaintiff contends, in response to the motion to dismiss, that because the State’s
Attorney Defendants brought charges against Plaintiff in Lake County, as opposed to
McHenry County, their actions went beyond the scope of their prosecutorial duties, and
therefore, the State’s Attorney Defendants cannot be protected by prosecutorial
immunity. (Resp. ¶ 6.) The legal authority cited by Plaintiff (two cases from the Second
Circuit Court of Appeals) is neither controlling nor supportive of Plaintiff’s position.
Moreover, Plaintiff’s argument regarding the venue of the underlying criminal action is
unavailing; while the prosecution moved to change venue from Lake County to McHenry
County, Plaintiff fails to allege how venue was improper in Lake County. Further, even
if Plaintiff had properly alleged venue was improper in Lake County, he fails to provide a
legal basis for how the filing of a criminal charge in the wrong county vitiates the State’s
Attorney Defendants’ prosecutorial immunity.
Plaintiff’s allegations of a violation of due process and conspiracy on the part of
the State’s Attorney Defendants rely upon their charging of Plaintiff and their
presentation of evidence to a grand jury. The tasks of charging a defendant and putting

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forth evidence to a grand jury in support of a charge is directly within the scope of the
State’s Attorney Defendants’ duties as prosecutors. “A prosecutor is absolutely immune
from suit for all actions and decisions undertaken in furtherance of his prosecutorial
duties.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012) (citing Imbler v. Pachtman,
424 U.S. 409, 410 (1976)). Therefore, the claims Plaintiff alleges against the State’s
Attorney Defendants are barred, as those defendants are entitled to absolute immunity in
their roles as prosecutors. Thus, Counts I and II of the Amended Complaint are
dismissed against the State’s Attorney Defendants.
Count I against Sheriff Defendants
Witness Immunity of Defendant Warner
Defendants move to dismiss the Section 1983 due process claim, Count I of the
Amended Complaint, as it is alleged against Defendant Paul Warner, a Lake County
Sheriff’s Detective, on the basis that Warner is immune from suit as a grand jury witness.
The only specific facts alleged as to Warner is that Warner, together with Assistant
State’s Attorney Scheller, “without the jurisdiction to present evidence to a grand jury,
deliberately mislead the grand jury and deliberately withheld exculpatory evidence from
the grand jurors obtaining an indictment that was both without jurisdiction and
unreliable.” (Am. Compl. ¶ 38.) No other information is alleged regarding Warner’s
role, though Defendants assert in their motion that Warner, as a detective, testified before
a grand jury relating to Plaintiff’s indictment. Plaintiff fails to allege any specific actions
taken on the part of Warner in the Amended Complaint. However, Warner’s “grand jury
testimony cannot form the basis for any Section 1983 claims because of absolute

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immunity.” Mendoza v. City of Chicago, Case No. 09 C 5866, 2012 WL 3206602, at *2
(N.D. Ill. July 31, 2012) (citing Rehberg v. Paulk, 132 S.Ct. 1497 (2012)); see also
Khorrami v. Rolince, 539 F.3d 782 (7th Cir. 2008) (citing Briscoe v. LaHue, 460 U.S.
325 (1983), and noting that “the Supreme Court held that witnesses who allegedly gave
perjured testimony at a criminal trial were absolutely immune from later suit under 42
U.S.C. § 1983. This court [the Seventh Circuit] recognized that the absolute immunity
extends to a police officer's participation in pretrial proceedings.”) (citations omitted).
Thus, to the extent that the Section 1983 claim is alleged against Warner in his role as a
grand jury witness, Warner is entitled to immunity.
In Plaintiff’s response to the motion to dismiss, Plaintiff’s single attempt to rebut
this point simply states, “[t]he same jurisdictional argument applies to the law
enforcement defendants, WARNER, WERNER and CURRAN.” (Resp. ¶ 14.) Beyond
the fact that Plaintiff’s allegations regarding so-called “jurisdictional” or venue issues are
undeveloped and unavailing, Plaintiff ignores the issue of witness immunity. “[W]hen
presented with a motion to dismiss, the non-moving party must proffer some legal basis
to support his cause of action.” Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335
(7th Cir. 1995) (citations omitted). Plaintiff failed to present any sort of counterargument
regarding the deficiency of the claim against Warner in Count I. Count I against
Defendant Warner is dismissed.
Qualified Immunity of Defendant Werner
Next, Defendants seek to dismiss Count as it is alleged against Defendant Willis
Werner, a lieutenant with the Lake County Sheriff’s Office. The only facts alleged

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against Defendant Werner in the Amended Complaint are that: (1) Werner was informed
by a social worker at Centegra Memorial Hospital that Plaintiff had expressed a threat
against a judge; (2) Werner stated in a report he prepared that Plaintiff told the social
worker that “[Plaintiff] had developed a romantic relationship with the judge’s daughter
and stolen money from . . . the judge”; and (3) Werner informed Judge Hughes of this
threat against him. (Am. Compl. ¶¶ 11-15.)
A state official, such as Lieutenant Werner, is entitled to qualified immunity from
some constitutional claims. “Such officials are not civilly liable unless their conduct
violated clearly established statutory or constitutional rights of which a reasonable person
in their position would have been aware.” Rusinowski v. Village of Hillside, 835 F. Supp.
2d 641, 650 (N.D. Ill. 2011) (citing Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th
Cir. 2000)). Plaintiff fails to allege in the Amended Complaint how Werner’s actions,
described above, violated Plaintiff’s constitutional rights in any way. Again, in his
response, Plaintiff’s only attempt to address the issue of the claim against Werner is to
state “[t]he same jurisdictional argument applies to the law enforcement defendants,
WARNER, WERNER and CURRAN.” (Resp. ¶ 14.) Therefore, because Werner is
entitled to qualified immunity and, further, because Plaintiff fails to rebut Defendants’
position regarding immunity, Count I, as it is alleged against Defendant Werner, is
dismissed.
Failure to State a Claim against Defendant Curran
Defendants also move to dismiss Count I against Defendant Mark Curran, the
Sheriff of Lake County, Illinois. Absolutely no facts are alleged against Defendant

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Curran, other than to state that Curran is “the elected Sheriff of Lake County, Illinois and
the responsible supervisor of Defendants Warner and Werner.” (Am. Compl. ¶ 5.) Other
than establishing that Curran supervises the other Sheriff Defendants, Plaintiff makes no
attempt to assert a claim against Curran or allege any actions or omissions on the part of
Curran that might implicate him. Plaintiff has failed to state a facially plausible claim
against Curran, as he does not plead facts which would permit a reasonable inference that
Curran is liable for the Section 1983 claim. Iqbal, 129 S. Ct. at 1949. Further, any
attempt on the part of Plaintiff to allege a Section 1983 claim against Curran on the
theory of respondeat superior must fail. “The doctrine of respondeat superior can not be
used to hold a supervisor liable for conduct of a subordinate that violates a plaintiff's
constitutional rights.” Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)
(citations omitted). Hence, Count I is dismissed against Defendant Curran.
Count II against Sheriff Defendants
Count II of the Amended Complaint alleges Defendants agreed to deprive the
Lake County judges and grand jurors of exculpatory evidence and information relating to
the charges against Plaintiff. (Am. Compl. ¶ 44.) “[T]o establish a prima facie case of a
civil conspiracy, a plaintiff must show (1) an express or implied agreement among
defendants to deprive plaintiff of his or her constitutional rights and (2) actual
deprivations of those rights in the form of overt acts in furtherance of the agreement.”
Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Plaintiff’s claim regarding the
alleged Section 1985 conspiracy is vague and conclusory; Plaintiff fails to allege facts to

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demonstrate a prima facie showing of a conspiracy under Section 1985. Therefore,
Count II is dismissed against the Sheriff Defendants, as well.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is granted.
Counts I and II of the Complaint are dismissed without prejudice, and Counts III, IV, and
V are dismissed with prejudice, as they are time-barred. Plaintiff may amend the
Complaint as to Counts I and II within twenty-one days of the date of this Memorandum
Opinion and Order only if he can do so consistent with Federal Rule of Civil Procedure
11. The matter is continued to May 16, 2013, at 9:30 a.m. for status.

Date: April 17, 2013

______________________________
JOHN W. DARRAH
United States District Court Judge

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