Rotheimer v. Kalata et al
Filing
88
MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 3/3/2015. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADAM ROTHEIMER,
Plaintiff,
v.
ERIC KALATA, STEPHEN SCHELLER,
DAN BROWN, MICHAEL J. WALLER,
PAUL WARNER, WILLIS S. WERNER,
and MARK CURRAN,
Defendants.
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Case No. 12-CV-1629
Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff Adam Rotheimer has brought a five-count Third Amended Complaint against
former Lake County State’s Attorney Michael J. Waller; Assistant State’s Attorneys Eric Kalata,
Stephen Scheller and Dan Brown; Lake County Sheriff Mark Curran; and former Lake County
Sheriff’s Office employees Paul Warner and Willis S. Werner, relating to Plaintiff’s arrest and
prosecution for allegedly threatening an Illinois state court judge in March 2010. 1 Defendants
have moved to dismiss the Third Amended Complaint, pursuant to Federal Rules of Civil
Procedure 12(b)(6), for failure to state a claim. For the reasons presented below, Defendants’
Motion to Dismiss [79] is granted.
BACKGROUND
In March 2010, Plaintiff, a hospital patient receiving mental health treatment, allegedly
made threatening statements against a state court judge during a session with Plaintiff’s social
worker. (TAC ¶ 21.) After the social worker reported the alleged threat to law enforcement,
1
Plaintiff’s current Complaint is titled “Second Amended Complaint” but is actually his
Third Amended Complaint.
Plaintiff was arrested and jailed for over a month. (Id. ¶¶ 22, 31.) Plaintiff was declared unfit to
stand trial, and the case was dismissed in July 2010. (Id. ¶ 34.)
Plaintiff initiated this suit on March 6, 2012. On November 19, 2012, he amended his
Complaint to allege five separate counts, including claims for violation of his Fourteenth
Amendment right to due process, conspiracy, malicious prosecution, respondeat superior, and
indemnification. On April 17, 2013, this Court granted Defendants’ Motion to Dismiss,
dismissed some counts with prejudice and some without, and granted Plaintiff leave to amend.
Plaintiff then filed a Second Amended Complaint, alleging two counts under 42 U.S.C. § 1983
against Defendants Warner and Werner, in their individual capacities.
On November 6, 2013, this Court granted Defendants’ Motion to Dismiss the Second
Amended Complaint and granted Plaintiff final leave to amend his claims within thirty days.
Soon after the dismissal, Plaintiff’s attorney withdrew, indicating that he did not want to pursue
Plaintiff’s case. The matter was continued several times to give Plaintiff an opportunity to find
new counsel and amend his claims.
At one status, Plaintiff’s sister, Denise Rotheimer, appeared and asked to represent
Plaintiff. The Court informed Ms. Rotheimer that she could not represent Plaintiff because she is
not authorized to practice law and does not have standing to pursue Plaintiff’s claims on his
behalf. On October 8, 2014, Plaintiff filed the Third Amended Complaint (“TAC”). Despite the
Court’s clear instruction, the TAC states that it was “prepared by Denise Rotheimer on behalf of
her brother, Adam Rotheimer.”
2
The TAC repeats essentially the same claims as those found in the previously dismissed
Complaints. 2 In short, Plaintiff alleges improper conduct by Defendants related to the “initiation
and continuation of criminal proceedings against Plaintiff,” including causing “material
exculpatory evidence to be withheld from the presiding judges and grand jury” associated with
Plaintiff’s underlying criminal case. (TAC ¶ 36(d)). Plaintiff has asserted the following claims
against all Defendants: § 1983 due process claim (Count I); § 1985 civil conspiracy claim (Count
II); a purported federal law intentional infliction of emotional distress claim (Count III); a state
law negligence claim (Count IV); and a purported federal law negligent infliction of emotional
distress claim (Count V).
LEGAL STANDARD
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the
complaint must provide a defendant “with ‘fair notice’ of the claim and its basis.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed. R. Civ. P. 8(a)(2) and Twombly,
550 U.S. at 555). When ruling on a motion to dismiss, the court accepts all well-pleaded factual
allegations as true and construes all reasonable inferences in favor of the plaintiff. Tamayo, 526
F.3d at 1081.
2
A full recitation of Plaintiff’s factual allegations can be found in the November 18, 2013
Memorandum Opinion and Order.
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ANALYSIS
Unauthorized Practice of Law
As a preliminary matter, the TAC must be dismissed because Ms. Rotheimer, in
preparing the TAC, has engaged in the unauthorized practice of law. The Court has the inherent
authority to impose sanctions for practicing law without a license, including striking pleadings.
See United States v. Johnson, 327 F.3d 554, 560 (7th Cir. 2003) (federal court has inherent
authority to impose sanctions for the unauthorized practice of law); Robinson v. Belom,
No. 03 C 1, 2003 WL 21183916, at *5 (N.D. Ill. May 19, 2003) (striking submissions prepared
by non-attorney and ordering non-attorney to show cause in writing why he should not be held in
contempt of court); see also N.D. Ill. Local Rule 83.12(a) (“only members in good standing of
the general bar of this Court may . . . file pleadings, motions or other documents”).
Accordingly, the TAC is stricken.
Failure to State a Claim
Furthermore, even if the TAC was not stricken as improperly prepared and filed, Plaintiff
has failed to state a claim under Rule 12(b)(6). In its April 17, 2013 Order, this Court held that
the one-year statute of limitations, found in the Illinois Local Government and Governmental
Employees Tort Immunity Act, 745 ILCS 10/8-101 (“the Illinois Tort Act”), barred Plaintiff’s
state law claims. Accordingly, Plaintiff’s state tort claims for intentional infliction of emotional
distress, negligence, and negligent infliction of emotional distress, asserted in Counts III through
V of the TAC, are also barred by the statute of limitations found in the Illinois Tort Act. 3
3
In Counts III and V, respectively, Plaintiff purports to bring federal claims for
intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff
has cited to federal statutes for those claims; however, no such causes of action exist. Therefore,
the Court has interpreted these claims to be brought under state law.
4
In April 13, 2013 Order, this Court also held that Defendants Waller, Kalata, Scheller and
Brown, who are all State’s Attorneys, had absolute prosecutorial immunity from Plaintiff’s
claims because their alleged actions were taken within the scope of their duties as prosecutors.
Plaintiff has not alleged any new facts that would fall outside these duties. Consequently,
Plaintiff’s claims asserted in the TAC against Waller, Kalata, Scheller and Brown must be
dismissed.
Likewise, as stated in both the April 13, 2013 and November 6, 2013 Orders, the only
allegations pertaining to Defendant Warner concern his role as a witness testifying before a
grand jury. As such, Warner is protected by absolute immunity from any § 1983 claim. See
Rehberg v. Paulk, 132 S.Ct. 1497, 1505 (2012). Accordingly, Plaintiff’s claims against Warner
are dismissed.
In its November 6, 2013 Order, the Court held that Plaintiff failed to state a claim against
Defendant Curran because there were no specific allegations about Curran’s role in the
investigation, arrest or prosecution of Plaintiff. In the TAC, Plaintiff has not added any new
allegations about Curran’s involvement and therefore, has again failed to state a claim against
Curran. The claims against Curran are therefore dismissed.
Finally, as stated in the April 13, 2013 Order, Defendant Werner, a lieutenant with the
Lake County Sheriff’s Office, has qualified immunity from Plaintiff’s claims. An officer is
subject to § 1983 liability only where he violates clearly established statutory or constitutional
rights that a reasonable officer would know. See Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). None of Plaintiff’s allegations against Werner in the TAC establishes that Werner
violated Plaintiff’s statutory or constitutional rights. Accordingly, the claims against Werner are
dismissed.
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Plaintiff has been given several opportunities to amend his claims, and it is clear that
future amendments will be futile. Consequently, dismissal of the TAC is with prejudice.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss pursuant to Fed. R. Civ.
P. 12(b)(6) [51] is granted. The Third Amended Complaint is dismissed with prejudice. The
civil case is terminated.
Date:
March 3, 2015
______________________________
JOHN W. DARRAH
United States District Court Judge
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