Wilson v. Baptiste et al

Filing 126

ORDER. Signed by the Honorable Manish S. Shah on 5/26/2015: The currency-exchange defendants' motion to dismiss 91 is granted. Counts VII and VIII of the second amended complaint are dismissed as to these defendants, with prejudice. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TRIMAINE WILSON,
Plaintiff,
No. 13 CV 7845

v.

Judge Manish S. Shah

HARVEY POLICE OFFICER BAPTISTE, et
al.
Defendants.
ORDER
The currency-exchange defendants’ motion to dismiss [91] is granted.1 Counts
VII and VIII of the second amended complaint are dismissed as to these defendants,
with prejudice.
STATEMENT
A motion to dismiss should be granted if the complaint offers a formulaic
recitation of the elements of a cause of action, without alleging facts suggesting the
plausibility of the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & 570 (2007).
The facts alleged must be accepted as true, but legal conclusions couched as factual
allegations need not be. Id. at 555.
Plaintiff Trimaine Wilson owns the company Trimaine Snow Plowing, Inc. On
September 7, 2012, one of his employees attempted to negotiate a $1,500 check at a
currency exchange owned by defendant 159th & Halsted Currency Exchange, Inc.
Because Wilson and his employee had cashed another $1,500 check earlier that day
at another branch of the currency exchange, the cashier (defendant Dennise Campos)
and her manager (defendant Todd Klein) refused to negotiate the check. [98] ¶ 12.
Instead, they called the police and Wilson was arrested and prosecuted for the crime
of deceptive practices.
Wilson alleges that Campos, Klein, and the currency exchange maliciously
prosecuted him (Count VIII) and conspired with Harvey police officers to violate his
constitutional rights (Count VII). The court previously dismissed these counts
without prejudice. Wilson amended his complaint, adding some detail. As discussed

The currency-exchange defendants are Todd Klein, Dennise Campos, and 159th & Halsted
Currency Exchange, Inc.
1

below, however, his allegations remain insufficient to state a claim against any of the
currency-exchange defendants.
In Count VII, Wilson alleges that he was deprived of his federal constitutional
rights. Such a claim, under 42 U.S.C. § 1983, cannot ordinarily be brought against a
private actor. A Section 1983 claim can be brought against a private actor, however,
if he conspires with a state actor to violate the plaintiff’s constitutional rights.
Burrell v. City of Mattoon, 378 F.3d 642, 649–50 (7th Cir. 2004). “But private parties
are not state actors when they merely call on the law for assistance, even though they
may not have grounds to do so; there must be a conspiracy, an agreement on a joint
course of action in which the private party and the state have a common goal.”
Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989).
Wilson alleges that the currency-exchange defendants spoke to police officers
before the officers arrested Wilson. [71] ¶¶ 16, 18, 25. He also alleges that he was told
by a police officer that “the currency-exchange employees wanted to file a complaint
against [him] and wanted him arrested and that is why he was being arrested.” [71]
¶ 27.2 Even assuming these allegations sufficiently plead an agreement, they do not
sufficiently plead the type of agreement that subjects a private actor to Section 1983
liability—that is, one in which the participants share a common, unconstitutional
purpose. See Cunningham v. Southlake Ctr. for Mental Health, Inc., 924 F.2d 106,
107–08 (7th Cir. 1991) (“A requirement of the joint action charge therefore is that
both public and private actors share a common, unconstitutional goal. . . . Where [the
constitutional] injury can only result from a particular motive animating the
defendant . . . the state actor . . . must himself possess the required motivation.”). In
this case, that requires a meeting of the minds to the effect that Wilson would be
arrested despite the known absence of probable cause. Wilson has not plausibly
alleged such an unconstitutional agreement between the currency-exchange
defendants and the police-officer defendants. To the contrary, Wilson says in his brief
that he was arrested on the “unfounded suspicions” of the defendants. [98] ¶ 17. But
if the defendants suspected him of having committed a crime—even if they were
wrong—then they did not agree to arrest him while knowing there was no probable
cause to do so. Accordingly, Count VII is dismissed with prejudice.
In Count VIII, Wilson presents a claim for malicious prosecution under Illinois
law. Such a claim requires: “(1) the commencement or continuance of an original
He also alleges that there was an agreement between the currency-exchange defendants
and the police ([71] ¶¶ 26, 63, 93), but those allegations are conclusory and thus not
presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009); Evers v. Reak, 21 Fed.Appx.
447, 450 (7th Cir. 2001) (“Vague and conclusory allegations of the existence of a conspiracy
are not enough to sustain a plaintiff’s burden; a complaint must contain factual allegations
suggesting that the defendants reached a meeting of the minds.”) (internal citation omitted).
2

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criminal or civil judicial proceeding by the defendant; (2) the termination of the
proceeding in favor of the plaintiff; (3) the absence of probable cause for such
proceeding; (4) the presence of malice; and (5) damages.” Logan v. Caterpillar, Inc.,
246 F.3d 912, 921–22 (7th Cir. 2001) (citing Swick v. Liautaud, 169 Ill.2d 504, 512
(1996)). “[A] private citizen does not commence [or continue] a criminal action merely
by reporting information to the police—even if the information later turns out to be
incorrect.” Logan, 246 F.3d at 922. But a private citizen can be held liable if he
“knowingly made false statements to the police. . . .” Id.
Wilson concludes that the currency-exchange defendants “falsely report[ed] an
incident.” [71] ¶ 96. But no factual allegation underpins that conclusion. In his brief,
Wilson states that Campos called the police because Wilson had cashed a check for
the same amount earlier that day at another branch. [98] ¶ 12. Wilson does not deny
that he did so, implicitly agreeing that the currency-exchange defendants based their
complaint on truthful information. Wilson undermines any inference that the
currency-exchange defendants communicated false information to the police by
stating in his brief that the information provided to the police “did not amount to
probable cause to arrest.” [98] ¶ 21. Insufficient information is not the same as false
information. Wilson also concludes that the currency-exchange defendants
“misrepresent[ed] the facts to the State’s Attorney” ([71] ¶ 96), but again provides no
content for this otherwise empty conclusion. Despite having twice amended his
complaint, Wilson does not say, even in general terms, what allegedly false
information was communicated to either the police or the prosecutor. In particular, if
Wilson had reason to believe that Campos or Klein told someone that the corporate
bank account had insufficient funds, while knowing the opposite to be true, Wilson
could have made that allegation by now.3 Wilson’s factual allegations, accepted as
true, do not permit a reasonable inference that any currency-exchange defendant
actively participated in the prosecution.

Wilson does allege that the currency-exchange defendants “failed to tell” an Assistant
State’s Attorney that the company’s bank account contained sufficient funds. [71] ¶ 38. But
in this context, withholding exculpatory evidence does not constitute the commencement or
continuance of a judicial proceeding for purposes of a malicious-prosecution claim. Logan,
246 F.3d at 922–23.
3

3

The currency-exchange defendants’ motion to dismiss [91] is granted. Counts
VII and VIII are dismissed as to defendants Campos, Klein, and 159th & Halsted
Currency Exchange, Inc., with prejudice.
ENTER:
Date: 5/26/15
Manish S. Shah
U.S. District Judge

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