Miller v. Village of Schaumburg et al
Filing
14
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 3/28/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JORDAN MILLER,
Plaintiff,
v.
VILLAGE OF SCHAUMBURG, et al.,
Defendants.
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No.
13 C 1601
MEMORANDUM OPINION AND ORDER
Just four days after pro se plaintiff Jordan Miller
(“Miller”) had filed this action against the Village of
Schaumburg (“Village”) and two of its former officers, charging
those officers with violations of his constitutional rights
actionable under 42 U.S.C. §1983 (“Section 1983”), this Court
issued a brief March 5, 2013 memorandum order (“Order”) that
raised a potential statute of limitations problem lurking in
Miller’s allegations.
At the conclusion of the Order this Court
directed Miller “to file promptly a supplement to his original
Complaint that fleshes out the dates (or approximate dates) of
the ex-officers’ further harassment of Miller and his family.”
Instead of following that directive, on March 8 Miller (this
time represented by counsel) filed a First Amended Complaint
(“FAC”) that expanded on his original claim, again invoked
Section 1983 as the principal gravamen and jurisdictional basis
for his lawsuit.
But what Miller’s counsel has accomplished by
that filing is simply to reconfirm the suspicions that had
originally triggered this Court’s Order.
To begin with a collateral issue, Miller’s counsel has
totally ignored the opening substantive matter dealt with in the
Order, which explained why no Section 1983 liability could attach
to the Village.
What counsel has done in the FAC is to advance
against the Village a purported Monell claim (Count III) and a
state-law indemnification claim under 745 ILCS 10/9-102 (Count
IV).
That appears to reflect in whole or in part the regrettable
notion that a lawyer’s obligation is to fit the facts to the law
(including any necessary reshaping of the “facts”), rather than
the other way around.
Some explanation of this pejorative
characterization is of course in order, and this opinion
accordingly first turns to that subject regarding Count III.
Miller’s original filing had characterized the two officer
defendants--Terrance O’Brien (“O’Brien”) and Matthew Hudak
(“Hudak”)--as truly rogue officers, engaged in a course of
vengeful conduct toward Miller.
Now, somewhat in the same
fashion that the alchemists of the Middle Ages sought
unsuccessfully to transmute base metal into gold, Miller’s
counsel would have it that such conduct was a matter of routine
within the Village’s police force as to which the Village itself
was deliberately indifferent.
Fed. R. Civ. P. (“Rule”) 11(b) and 28 U.S.C. §1927 set
standards of both subjective and objective good faith for
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lawyers’ conduct (the former provision is limited to court
filings, while the latter is not).
If and to the extent that
Miller’s counsel possesses a good faith predicate for the
transmutation reflected in FAC Count III, he is ordered to file a
statement identifying that predicate on or before April 12, 2013
to avoid embroiling the Village in the expense and inconvenience
of litigation in the possible absence of a good faith basis for
doing so.
Moreover, the purported Count III Monell claim is of course
advanced under Section 1983, the same jurisdictional source that
Miller’s original pro se Complaint sought to invoke--and
importantly that is also specifically true of FAC Count II as
well, a count that charges former officers O’Brien and Hudak with
just one alleged constitutional violation, an unreasonable search
of Miller’s home in May 2010 (FAC ¶¶14-24).
But both such
claims, grounded as they are in a nearly three-year-old event,
run head on into the two-year statute of limitations for
Illinois-based Section 1983 violations--the very issue that this
Court’s Order identified in its directive quoted in the first
paragraph of this opinion.
What the FAC has done in the
fleshing-out process is to confirm that the officers’ activity
targeting Miller, about which both the original Complaint and the
FAC complain, has indeed been outlawed by limitations and thus
cannot support any Section 1983 claim.
3
That leaves FAC Count I for consideration next.
In that
count Miller’s counsel again seeks to play alchemist by recasting
the officers’ activities as violations of RICO (18 U.S.C. §§1961
through 19681), so as to give rise to a civil remedy under
Section 1964(c).
That effort may be imaginative, but it founders
on the shoals of the fundamental principle that the “enterprise”
adverted to in Section 1962(c)--the RICO provision on which
Miller must seek to rely--must be distinct from the “person” who
allegedly violates that section.
That principle was established more than a quarter century
ago by the Supreme Court’s affirmance (473 U.S. 606 (1985)) of
our Court of Appeals’ opinion in Haroco v. Am. Nat’l Bank & Trust
Co., 747 F.2d 384, 399-40 (7th Cir. 1984).2
In this instance FAC
¶51 expressly states “[t]he racketeering enterprise in this cause
of action are Defendants O’BRIEN and HUDAK,” and those two
defendants are of course also the persons sought to be held
liable under RICO.
Hence Miller’s counsel’s attempt to bring his
client into court under RICO has resulted instead in talking his
1
Further citations to RICO provisions will simply take the
form “Section --,” omitting the prefatory 18 U.S.C.
2
As chance would have it, this Court’s opinion in Parnes
v. Heinold Commodities, Inc., 548 F.Supp. 20, 23-24 (N.D. Ill.
1982) was one of the two cases by which the Court of Appeals said
that it was persuaded “that section 1962(c) requires separate
entities as the liable person and the enterprise which has its
affairs conducted through a pattern of racketeering activity”
(747 F.2d at 400).
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way out of court on such a claim.
This opinion has deliberately left FAC Count IV for the
last, not just because of its placement in the FAC but because
Village’s duty of indemnification becomes a realistic matter only
if O’Brien or Hudak or both has or have substantive liability to
Miller.
What has been said up to this point negates any such
underlying liability, rendering the prospect of indemnification
totally hypothetical.3
This action is set for a status hearing at 9 a.m. April 19,
2013.4
At that time Miller’s counsel will be expected to explain
any predicate for the continuation of this litigation.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
March 28, 2013
3
It does not seem to have occurred to Miller’s counsel
that by charging O’Brien and Hudak with criminal conduct in his
effort to bring RICO into play he may well have deprived them of
any right of indemnification under Illinois law--see the
discussion by the Illinois Supreme Court in Wright v. City of
Danville, 174 Ill.2d 391, 399-404, 675 N.E.2d 110, 115-17 (1996).
4
This Court recognizes that none of the defendants has yet
appeared in this action, so that this opinion does not order
participation on their part in the status hearing referred to in
the text. Nonetheless the order here extends to Miller’s counsel
in all events.
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