Cui v. City of Elmhurst Police Department et al

Filing 146

MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 2/21/2017.(gcy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HANG CUI and RUIYING FEI,

)
)
Plaintiffs,
)
)
v.
)
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ELMHURST POLICE DEPARTMENT, )
et al.
)
)
Defendants.
)

No. 14 C 8330
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
Presently before us is Defendants City of Elmhurst, Officer Art Ciszewski, Commander
Robert Nichols’ (“Elmhurst Defendants”) motion to dismiss Counts I, II, III, VIII, IX, and X of
Plaintiffs’ Fourth Amended Complaint. (Dkt. No. 131.) Also before us is Defendants Lynn
Kubycheck and Jon Kubycheck’s (“Kubycheck Defendants”) motion to dismiss Counts I–VII of
Plaintiff’s Fourth Amended Complaint. (Dkt. No. 136.) For the reasons stated below, we grant
Defendants’ motions to dismiss Counts II, III, IX, and X. Only state-law claims remain, and we
decline to exercise supplemental jurisdiction over the remaining claims. The case is remanded to
the Circuit Court of Cook County for further proceedings.
FACTUAL BACKGROUND
At the motion to dismiss stage, we accept all well-pleaded factual allegations as true, and
draw all inferences in the plaintiffs’ favor. Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 903 (7th Cir. 2011). In February 2012, Plaintiffs lived in a bank-owned home
located at 506 East Park Avenue, in Elmhurst, IL. (Fourth Am. Compl. (Dkt. No. 119) ¶ 7.)
Plaintiffs had a “month to month short lease.” (Id.) On February 17, 2012, Lynn Kubycheck
(“Lynn”) bought the home and served Plaintiffs with notice that their lease was to be terminated.

(Id.) Plaintiffs asked Lynn to lease the home to them on a short term basis while they sought a
new home. (Id.) She “refused and filed an eviction case” on June 7, 2012. (Id. ¶ 8.) Cui and
Lynn “reached a settlement through their attorneys. . . in eviction court,” which allowed
Plaintiffs to remain in the home until June 26, 2012. (Id.) The agreement further provided
Plaintiffs would pay Lynn $1,853, and Lynn would “sign the paper to vacate the eviction order.”
(Id.)
On June 26, 2012, Cui gave his attorney a check for $1,853 to give to Lynn after she
delivered the signed documents vacating the eviction order. (Id.) Plaintiffs allege Cui
intentionally left insufficient funds in the account and planned to place sufficient funds in the
account only after the signed documents were delivered. (Id.) Lynn received the check on
June 26, 2012, but she did not deliver the signed documents. (Id. ¶¶ 11–12.) Plaintiffs further
allege that, on June 27, 2012, Lynn and her son, Jon Kubycheck, “broke into the house through
the back door,” noticed that appliances were missing, and called the police to report the
appliances stolen. (Id. ¶ 10.) The police evicted Plaintiffs and their daughter on that same day.
(Id.)
On January 9, 2013, Lynn filed a police report, “falsely telling the police that ‘on 6/26/12
she received a check from Cui’s business account for the last month’s rent in the amount
of $1853.00,’” but that there were insufficient funds in the account, and allegedly claimed that
Cui had “intended to defraud her with a ‘bad rent check.’” (Id. ¶¶ 11–12.) On
March 12, 2013, Officers Art Ciszewski and Steven Mandat “arrested Mr. Cui at his home, in the
presence of his spouse, . . . without probable cause, for misdemeanor Attempted Deceptive
Practice” under Illinois law. (Id. ¶ 14.) Plaintiffs allege “Defendant Commander Nichols
approved the arrest, and on information and belief, the criminal prosecution” that followed. (Id.)

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Plaintiffs further allege that the police did not thoroughly investigate the dispute before arresting
Cui, and assert Lynn lied to the police about the nature of their dispute. (Id.) On May 2, 2014,
the State voluntarily dismissed all charges against Cui. (Id. ¶ 15.)
Cui filed a pro se complaint against the City of Elmhurst Police Department, Lynn
Kubycheck, and Jon Kubycheck in the Circuit Court of Cook County, Illinois on
September 24, 2014. (Dkt. No. 1 ¶ 2.) On October 23, 2014, the Elmhurst Police Department
removed the action to federal court pursuant to 28 U.S.C. §§ 1441, 1443. Cui filed his first
amended pro se complaint on December 31, 2014. (Dkt. No. 22.) We granted the Elmhurst
Police Department’s motion to dismiss all counts against it on May 5, 2015, but granted Cui
leave to file an amended complaint to pursue a state-law malicious prosecution claim against the
City of Elmhurst. (Dkt. No. 27.) Cui filed a second amended pro se complaint on June 12, 2015,
naming the City of Elmhurst, Officer Steven Mandat, Lynn Kubycheck, and Jon Kubycheck as
defendants. (Dkt. No. 31.)
On September 17, 2015, we again dismissed all counts against the City of Elmhurst, all
counts against Officer Mandat except for Cui’s racial discrimination claim,1 and Cui’s state-law
defamation and conspiracy claims against the Kubychecks. (Dkt. No. 55.) Cui and Ruiying Fei,
now represented by counsel, filed a third amended complaint on May 16, 2016, which was not
served on the Defendants. (Dkt. No. 104.) Finally, on October 11, 2016, Plaintiffs filed the
operative, Fourth Amended Complaint, naming as defendants the City of Elmhurst, Officer Art
Ciszewski, Commander Robert Nichols, and the Kubychecks. The Fourth Amended Complaint
asserts federal claims under 42 U.S.C §§ 1983 and 1985, along with Illinois state law claims for
malicious prosecution, trespass, invasion of privacy, negligent infliction of emotional distress,
1

The parties settled this claim, and we dismissed Mandat with prejudice on June 20, 2016.
(Dkt. No. 109.)
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intentional infliction of emotional distress, and indemnification. The Elmhurst Defendants
moved to dismiss all counts against them on November 8, 2016, and the Kubychecks moved to
dismiss all counts against them on November 11, 2016. 2 (Dkt. Nos. 131, 136.)
LEGAL STANDARD
Defendants’ motions to dismiss for failure to state a claim upon which relief may be
granted are governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of
the motion to dismiss is to test the sufficiency of the complaint, not decide the merits.”
Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (internal quotation marks omitted)
(quoting Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). Dismissal
pursuant to Rule 12(b)(6) is proper only if a complaint lacks enough facts “to state a claim [for]
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949–50 (2009) (internal quotation marks omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)); accord.
Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618–19 (7th Cir. 2007). The plausibility
standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65). That is, while the plaintiff need not
plead “detailed factual allegations,” the complaint must allege facts sufficient “to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65.

2

Plaintiffs timely filed their response to both motions on December 7, 2016. (Dkt. No. 141.) On
January 8, 2017, Plaintiffs filed a motion for leave to file two attachments to their response.
(Dkt. No. 143.) Plaintiffs’ motion is granted, and we consider the attached exhibits for the
purpose of deciding the present motions to dismiss.
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ANALYSIS
I.

Kubycheck Defendants
a. False Arrest (Count II)
Lynn Kubycheck first argues Plaintiffs’ § 1983 false arrest claim (Count II) against her

must be dismissed because she is a private citizen, and thus has no power to make an arrest.
(Dkt. No. 136 at 4.) “A private citizen may not be liable under § 1983 unless the citizen
becomes a public officer pro tem or conspires with a public employee to deprive a person of his
constitutional rights.” Wilson v. Price, 624 F.3d 389, 394 (7th Cir. 2010) (citing
Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002)). Plaintiffs do not claim, and allege no
facts to suggest, Lynn ever acted as a public officer. Further, Plaintiffs’ claim does not
sufficiently allege Lynn conspired with a public employee to deprive Cui of his Fourth
Amendment rights. Rather, Plaintiffs’ complaint merely alleges Lynn’s actions “caused the
arrest” of Cui. (Compl. ¶ 27.) More specifically, Plaintiffs allege Lynn “knowingly filed a false
police report” stating that she had received a bad rent check from Cui, even though she “knew
there was no probable cause to believe that Mr. Cui intended to defraud her with a ‘bad rent
check’ because it was not a ‘rent check.’” (Id. ¶ 11–12.) Those allegations are insufficient to
support an inference that Lynn conspired with a public employee to deprive Cui of his Fourth
Amendment rights by causing his false arrest. Accordingly, we grant Lynn’s motion to dismiss
Count II of Plaintiffs’ complaint.
b. Conspiracy to Violate Civil Rights (Count III)
In Count III of their Fourth Amended Complaint, Plaintiffs claim Lynn Kubycheck
conspired with Officers Ciszewski and Commander Nichols (“Defendant Officers”) to violate
Cui’s constitutional rights in violation of 42 U.S.C. § 1985. Lynn argues Count III must be

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dismissed because Plaintiffs “allege[] only a garden variety of facts . . . which, taken as a whole,
neither identifies a conspiracy nor the participants of any alleged conspiracy.” (Dkt. No. 136
at 5.) A plaintiff may assert a § 1985 conspiracy claim when “two or more persons . . .
conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws.” 42 U.S.C. § 1985(3). The elements of a § 1985
claim are: “(1) a conspiracy; (2) a purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of equal privileges and immunities
under the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to his person or
property or a deprivation of any right or privilege of a citizen of the United States.”
Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 642 (7th Cir. 2006) (citations omitted),
overturned on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013).
In our September 17, 2015 Order, we dismissed Cui’s conspiracy claim against the
Kubycheck Defendants because he “failed to sufficiently allege an agreement or any conduct
taken in furtherance of that agreement, and did not even identify state co-conspirators within the
statute of limitations.” (Dkt. No. 55 at 17.) At the time, Cui’s second amended complaint
alleged Elmhurst Police Department officers Joseph Dudek and Tim Westering “maliciously
conspired” with the Kubychecks to violate his civil rights. (Dkt. No. 31 ¶ 6.) Plaintiffs’ current
complaint lacks even such a conclusory allegation of an agreement or any actions in furtherance
of that agreement. (See generally Fourth Am. Compl.) See also McCauley v. City of Chi.,
671 F.3d 611, 616 (7th Cir. 2011) (“[L]egal conclusions and conclusory allegations merely
reciting the elements of the claim” are not entitled to a presumption of truth, and are not
considered when determining the sufficiency of the complaint). Accordingly, we grant Lynn
Kubycheck’s motion to dismiss Count III of Plaintiffs’ complaint.

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II.

Elmhurst Defendants
a. Timeliness of Plaintiffs’ Federal Claims
The Elmhurst Defendants also argue Plaintiffs’ § 1983 claim for false arrest

(Count II), § 1985 claim for conspiracy to violate Cui’s civil rights (Count III), § 1983 equal
protection (Count IX), and § 1983 class of one (Count X) claims against them must be dismissed
because the claims are time barred. See Logan, 644 F.3d at 582 (“While a statute of limitations
defense is not normally part of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), when the allegations of the complaint reveal that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure to state a
claim.”). In Illinois, § 1983 claims are governed by a two-year statute of limitations.
Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005) (citing Hileman v. Maze,
367 F.3d 694, 696 (7th Cir. 2004)). Plaintiffs’ 42 U.S.C. § 1985 claim is governed by a one-year
statute of limitations. 42 U.S.C. § 1986.
The Defendant Officers argue that Plaintiffs’ § 1983 and § 1985 claims against them
accrued on March 12, 2013, which is the date Officer Art Ciszewski and Officer Steven Mandat
arrested Cui, with Defendant Commander Nichols’ approval, “for misdemeanor Attempted
Deceptive Practice” under Illinois law. (Fourth Am. Compl. ¶ 14.) Thus, they argue Plaintiffs
must have brought their § 1983 claims against the Defendant Officers by March 12, 2015 and
their § 1985 claims by March 12, 2014. Because the Defendant Officers were not named as
defendants until Plaintiffs’ filed their Fourth Amended Complaint on October 11, 2016—more
than one year after the statute of limitations had run—they contend Plaintiffs’ federal claims
against them are time barred. (Dkt. No. 132 at 7.) In response, Plaintiffs argue that pursuant to
Federal Rule of Civil Procedure 15(c), the addition of the Defendant Officers relates back to the

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date of their original filing on September 24, 2014, and so their § 1983 and § 1985 claims are
timely. (Dkt. No. 140 at 10–11.)
Rule 15(c)(1)(C) provides that an amendment relates back to the date of the original
pleading when the party to be added: “(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and (ii) knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s identity.”
Fed. R. Civ. P. 15(c)(1)(C). Plaintiffs argue that the Defendant Officers had notice of the action
and knew that it would have been brought against them but for a mistake, because Cui’s original
pro se complaint named “officers and supervisors in their individual capacities” and Officer
Ciszewski was mentioned in the text of the original complaint. (Dkt. No. 140 at 11.) Plaintiffs
additionally contend Officer Ciszewski’s “name is on the arrest report, and he was placed on
notice, within the limitations period, that he was being sued by Cui when the original complaint
sued the police department and the current defense counsel appeared for that named defendant,”
and the “arrest report lists Defendant Nicholas as a supervisor, which means he had control over
the false arrest and prosecution, and should therefore remain liable at this stage.” (Id. at 12–13.)
In response, the Defendant Officers argue that Cui did not mistakenly fail to name them
as defendants, but rather had knowledge of their identities and simply made a “deliberate choice”
not to name them as defendants. (Dkt. No. 142 at 6.) As evidence of that deliberate choice, they
point to the fact that Cui named Officer Steven Mandat, but no other officers, in his amended
complaint after our May 14, 2015 Order allowed him to pursue his claims against individual
Elmhurst Police Department officers. (Dkt. Nos. 28, 31.)
While “making a deliberate choice to sue one party instead of another while fully
understanding the factual and legal differences between the two parties is the antithesis of

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making a mistake concerning the proper party’s identity,” it is “error to conflate knowledge of a
party’s existence with the absence of mistake.” Krupski v. Costa Crociere S. p. A.,
560 U.S. 538, 549, 130 S. Ct. 2485, 2494 (2010). That is, “a plaintiff might know that the
prospective defendant exists but nonetheless harbor a misunderstanding about his status or role
in the events giving rise to the claim at issue, and she may mistakenly choose to sue a different
defendant based on the misimpression.” Id.
We are unpersuaded by the Defendant Officers’ argument that Cui’s knowledge of their
existence or failure to name them as defendants entails that he made a “deliberate choice” to not
sue them. Especially given Cui’s pro se status prior to his Fourth Amended Complaint, in which
he named the Defendant Officers, 3 (Dkt. No. 104), and his previous indications that he intended
to sue numerous Elmhurst Police Officers and “supervisors” involved with his arrest, (see
Dkt. Nos. 1–1, 22), we find it more likely that Cui was either mistaken in his understanding of
which officers he was permitted to sue, or he simply mistakenly failed to sue the Defendant
Officers. See Stewart v. Mesrobian, 12 C 50273, 2015 WL 685708, at *6 (N.D. Ill.
Feb. 18, 2015) (observing that plaintiff’s pro se status strengthened its finding that plaintiff did
not make a deliberate choice to not sue a particular party, even though the plaintiff knew of that
party’s existence).
We also find the Defendant Officers should have known they were intended parties in
this action, and that they will not be unduly prejudiced by being named plaintiffs at this stage.
Cui’s first two complaints were directed at the Elmhurst Police Department, as well as its
officers and supervisors. (Dkt. Nos. 1–1, 22.) See Joseph v. Elan Motorsports Techs. Racing
Corp., 638 F.3d 555, 560 (7th Cir. 2011) (finding the addition of a corporate party related back
3

Plaintiffs third amended complaint with the assistance of counsel on May 16, 2015 naming the
Defendant Officers, but the defendants were not served with that complaint. (Dkt. No. 104.)
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under Rule 15(c) when the party shared an office with the improperly sued corporation and the
corporations were “pieces of a dizzying array of corporate entities”). Commander Nichols, being
the supervisor that approved Cui’s arrest on March 12, 2013, should have known that he was
included in the group of “supervisors” Cui intended to sue. Further, both complaints contained
allegations that Officer Ciszewski was involved in the investigation that led to Cui’s arrest on
March 12, 2013, which gave Officer Ciszewski adequate notice he was one of the numerous
officers Cui arrest intended to sue for their involvement in his arrest. (See Dkt. Nos. 1–1, 22.)
See also Jones v. Dart, 12 C 9272, 2013 WL 4854368, at *3 (N.D. Ill. Sept. 11, 2013) (finding it
more likely the newly added defendant knew or should have known the plaintiff intended to sue
it given the plaintiff’s original complaint was filed pro se); cf. Harrer v. Bayview Loan
Serv., LLC, 15 C 4075, 2016 WL 6995559, at *3 (N.D. Ill. Nov. 30, 2016) (finding plaintiff’s
new claim related back to the date of his original pleading in part because he “continued to
include the factual allegations relevant to his [] claim in his first and second amended
complaints, . . . even though he omitted an express claim for such relief from those iterations of
his complaint for some reason”).
Finally, none of the Defendant Officers claim their addition at this point in the litigation
will unduly prejudice them in a way that impairs their ability to defend themselves. Joseph,
638 F.3d at 560. Accordingly, we find the addition of the Defendant Officers in Plaintiffs’
Fourth Amended Complaint relates back to the date of Cui’s original filing, September 24, 2014.
Plaintiffs’ § 1983 claims are thus not time barred, and the Defendant Officers’ motion to dismiss
Counts II, IX, and X as untimely is denied. Plaintiffs’ 42 U.S.C. § 1985 claim against the
Defendant Officers, however, was still filed several months after the statute of limitations

10

expired on March 12, 2014, and is thus time barred. We therefore grant the Defendant Officers’
motion to dismiss Count III, with prejudice.
b. False Arrest (Count II)
The Elmhurst Defendants argue Plaintiffs’ § 1983 claim for false arrest (Count II), and
42 U.S.C. § 1985 claim for conspiracy to violate Cui’s civil rights (Count III) must be dismissed,
because the officers had probable cause to arrest Cui. (Dkt. No. 132 at 8–12.) Because we have
already determined Plaintiffs’ 42 U.S.C. § 1985 claim is untimely, we address only Count II. A
finding of probable cause is a complete defense to Plaintiffs’ false arrest claim.
Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013); see also Neita v. City of Chi.,
830 F.3d 494, 497 (7th Cir. 2016) (“To prevail on a false-arrest claim under § 1983, a plaintiff
must show that there was no probable cause for his arrest.” (citing Thayer v. Chiczewski,
705 F.3d 237, 246 (7th Cir. 2012)).
We look to Plaintiffs’ complaint and attached exhibits to determine whether they have
alleged facts that show the police officers had probable cause to arrest Cui and thus have pleaded
themselves out of court. Williamson v. Curran, 714 F.3d 432, 448 (7th Cir. 2013). A finding of
probable cause requires we “step[] into the shoes of a reasonable person in the position of the
officer,” Holland v. City of Chi., 643 F.3d 248, 254 (7th Cir. 2011) (citation omitted), and
determine whether “the facts and circumstances within the officer’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, is committing, or is about to commit an offense,”
Brooks v. City of Aurora, 653 F.3d 526, 537 (7th Cir. 2009) (citation omitted).
Plaintiffs allege Cui was arrested for Attempted Deceptive Practices pursuant to
720 ILCS 5/17–1, which states:

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“A person commits a deceptive practice when: (1) [w]ith intent to obtain control
over property or to pay for property, labor or services of another . . . he or she
issues or delivers a check or other order upon a real or fictitious depository for the
payment of money, knowing that it will not be paid by the depository.”
720 ILCS 5/17–1(B). For the purposes of the statute, “‘property’ includes rental property
(real or personal).” Id. We look to Plaintiffs’ complaint and Officer Mandat’s interrogatory
answers, attached as an exhibit to Plaintiffs’ response brief, for details concerning the extensive
police investigation into Cui’s conduct before his arrest. (Dkt. No. 143–2.)
In our September 17, 2015 Order, we dismissed Cui’s claim against the City of Elmhurst
for malicious prosecution because we found that the police officers had probable cause to arrest
him for writing a bad check. (Dkt. No. 55 at 6–8.) Plaintiff now argues we should find the
police did not have probable cause to arrest Cui because: (1) our prior ruling “did not mention
the required, essential element of the deceptive practices offense of intent to defraud”; (2)
Officer Mandat’s interrogatory answer “admits[] that he knew about the court settlement
agreement, and that he did not know Lynn Kubycheck did not do her part of the agreement—
signing the dismissal order”; (3) Cui’s arrest report shows that “Officer Mandat significantly
altered Mr. Cui’s statement upon arrest”; (4) the Defendant Officers should have arrested Cui the
completed crime of deceptive practices, as opposed to “attempted” deceptive practices; (5) the
arrest report incorrectly states that the bad check was a “rent” check; and (6) “there is evidence
that the complainant, Lynn Kubycheck, bore a grudge against Plaintiff Cui for taking his
appliances with him from the house when he and his family moved.” (Dkt. No. 140 at 8–10
(emphasis in original).)
Having considered Plaintiffs’ additional allegations and taking them all as true, we again
find there was probable cause to arrest Cui. Plaintiffs allege that, on January 9, 2013, Lynn
Kubycheck “knowingly filed a false police report, falsely telling the police that . . . ‘she received

12

a check from Cui’s business account for the last month’s rent in the amount of $1853.00.’”
(Compl. ¶ 11.) In the course of his investigation, Officer Mandat learned that the check was part
of a settlement agreement, but was informed that Cui owed the money pursuant to the agreement
because “possession of [the home] was wrongly withheld by Hang Cui and Rulying Fei.”
(Dkt. No. 143–2 ¶ 9.) Officer Mandat received a copy of the check dated June 26, 2012 that Cui
issued to the Kubychecks, receipts from Bank of America showing Lynn Kubycheck’s repeated
attempts to cash the check in July 2012, and notices from the bank that the check would not be
honored because the account did not have sufficient funds in the account. (Dkt. No. 143–2 ¶ 5.)
Officer Mandat also received a copy of a letter Lynn sent to Cui on December 6, 2012 informing
him the check had been returned and demanding payment. (Id.) The certified letter included a
receipt signed by Cui on December 14, 2012. (Id.) Officer Mandat received notice from the
bank that Lynn attempted to cash the check again after sending the certified letter to Cui.
(Id. ¶ 9). After this investigation, the police obtained an arrest warrant, which they served upon
Cui on March 12, 2013. (Id. ¶ 13.)
Given the police department’s extensive investigation into Cui’s conduct and the
information they knew at the time of arrest, we find a prudent person would have believed Cui
had committed the offense of deceptive practices under 720 ILCS 5/17–1(B).4 The police knew
that Cui gave a check to Lynn with insufficient funds in his account, that the check was
presented for payment and rejected several times in both July and December, and that Cui failed
to remedy the situation even after Lynn notified him of the insufficient funds. The police could

4

We are unpersuaded by Plaintiffs’ argument that, because the facts presented to the police
suggested his alleged crime was completed, they did not have probable cause to arrest him for
attempting the crime. (Compl ¶ 14.) Attempted deceptive practice is a lesser included offense of
a completed deceptive practice, for which the police had probable cause to arrest Cui.
See Fed. R. Crim. P. 31(c)
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thus reasonably infer Cui gave the check to Lynn knowingly and with intent to defraud her.
See 720 ILCS 5/17–1(B) (“The trier of fact may infer that the defendant knows that the check or
other order will not be paid by the depository and that the defendant has acted with intent to
defraud when the defendant fails to have sufficient funds or credit with the depository when the
check or other order is issued or delivered, or when such check or other order is presented for
payment and dishonored on each of 2 occasions at least 7 days apart.”). Finally, because the
officers knew Cui owed Lynn the money for withholding possession of Lynn’s home and Lynn
told them it was a rent check, the police reasonably could infer the check was payment for rental
property. We thus find Plaintiffs’ own allegations establish the officers had probable cause to
arrest Cui, and grant the Elmhurst Defendants’ motion to dismiss Count II.
c. Qualified Immunity
Officer Ciszewski and Commander Nichols argue Plaintiffs’ § 1983 equal protection
claims (Counts IX and X) must be denied because they are entitled to qualified immunity. “The
doctrine of qualified immunity protects government officials from liability for civil damages
when their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Rabin v. Flynn, 725 F.3d 628, 632 (7th Cir. 2013)
(internal quotation marks omitted) (quoting Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006
(7th Cir. 2012)). Plaintiffs argue the Defendant Officers violated Cui’s clearly established equal
protection rights under the Fourteenth Amendment by causing “criminal charges to be lodged
against [him] without probable cause,” “fail[ing] in their duty to enforce the laws equally and
fairly towards [him],” intentionally treating him differently “because of his racial category,”
“act[ing] with discriminatory intent by treating [him] differently,” and falsely arresting him.
(Dkt. No. 119 ¶¶ 54–55.)

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As we previously stated, Plaintiffs have not sufficiently alleged the Defendant Officers
arrested Cui without probable cause, and therefore allegations that they falsely arrested Cui
cannot justify a finding that they violated his clearly established constitutional rights. Plaintiffs
may, however, defeat the Defendant Officers’ qualified immunity defense by adequately
pleading racial discrimination in violation of the equal protection clause of the Fourteenth
Amendment, which requires they allege Cui: 1) is part of a protected class; 2) “he was similarly
situated to individuals not of the protected class; 3) he was treated differently than those
similarly-situated individuals; and 4) those who treated him differently acted with discriminatory
intent.” Jacobeit v. Rich Tp. High Sch. Dist. 227, 673 F. Supp. 2d 653, 664 (N.D. Ill. 2009)
(citations omitted). We previously found Cui had plausibly alleged a racial discrimination claim
against Officer Mandat defense because he plausibly alleged Officer Mandat failed to properly
investigate Cui’s claims, but adequately pursued Lynn Kubycheck’s complaint against Cui,
because Cui is Asian. (Dkt. No. 55 at 9–10.)
In contrast, Plaintiffs have failed to provide anything other than conclusory allegations
that the Defendant Officers denied Cui equal protection of the law on account of his race.
Plaintiffs’ allege Officer Ciszewski “arrested Mr. Cui at his home . . . without probable cause”;
that Commander Nichols “approved the arrest, and on information and belief, the criminal
prosecution”; and that they relied on Officer Mandat’s altered account of Cui’s statements at the
time of arrest in order to charge him with misdemeanor attempted deceptive practices under
Illinois law. (Fourth Am. Compl. ¶ 14.) Because we find the Defendant Officers had probable
cause to arrest Cui, the only remaining, legitimate allegation is that they relied on Officer
Mandat’s altered account of Cui’s statements at the time of his arrest. However, Plaintiffs do not
allege the Defendant Officers knew of Officer Mandat’s alleged alteration, nor do they assert any

15

facts showing the officers treated him differently than any similarly situated individuals.
Plaintiffs’ conclusory allegations are insufficient to support their claim that the Defendant
Officers violated Cui’s clearly established constitutional rights by intentionally discriminating
against him on the basis of race in violation of the equal protection clause of the Fourteenth
Amendment. McCauley, 671 F.3d at 616. Accordingly, we find the Defendant Officers are
entitled to qualified immunity as to Counts IX and X of Plaintiffs’ complaint, and grant their
motion to dismiss those claims.
III.

Jurisdiction
Having dismissed all of Plaintiffs’ federal claims, only Plaintiffs’ state-law trespass

(Count IV), invasion of privacy claims (Count V), negligent infliction of emotional distress
(Count VI), intentional infliction of emotional distress (Count VII), and indemnification (Count
VIII) claims remain. “When all federal claims in a suit in federal court are dismissed before
trial, the presumption is that the court will relinquish federal jurisdiction over any supplemental
state-law claims.” Al’s Serv. Center v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th Cir. 2010)
(citing 28 U.S.C. § 1367(c)). That presumption “should not be lightly abandoned, as it is based
on a legitimate and substantial concern with minimizing federal intrusion in areas of purely state
law.” RWJ Mgmt. Cos., Inc. v. BP Prods. N. Am., 672 F.3d 476, 479 (7th Cir. 2012) (internal
quotation marks omitted) (quoting Khan v. State Oil. Co., 93 F.3d 1358, 1366 (7th Cir. 1996)).
The Seventh Circuit has “identified certain circumstances that may displace the
presumption,” the most relevant of which is that “substantial judicial resources have already been
committed, so that sending the case to another court will cause a substantial duplication of
effort.” Id. at 480. Although this litigation has been in federal court for over two years, it is still
at the pleading stages, and there has been no substantial discovery. (See Dkt. No. 107.) See also

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Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (stating that “judicial
economy” is rarely a persuasive reason for retaining jurisdiction over state law claims when a
case is dismissed on the pleadings, and there has been no discovery). While we have briefly
addressed Plaintiffs’ state-law trespass and invasion of privacy claims against the Kubychecks in
a previous order in which we denied their motion to dismiss those claims,
(Dkt. No. 55 at 13–15), our consideration of those claims has not been so substantial as to require
any serious “duplication of effort” by the state court. Miller Aviation v. Milwaukee Cnty. Bd. of
Supervisors, 273 F.3d 722, 732 (7th Cir. 2001). We have not addressed Plaintiffs’ intentional
infliction of emotional distress, negligent infliction of emotion distress, or indemnification
claims. Accordingly, we relinquish jurisdiction over Plaintiffs’ supplemental state-law claims.
CONCLUSION
For the reasons stated above, we grant Defendants’ motions to dismiss Counts II, III, IX,
and X. We decline to exercise supplemental jurisdiction over the remaining state law claims.
Accordingly, this case is remanded to the Circuit Court of Cook County for further proceedings.
It is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge
Dated: February 21, 2017
Chicago, Illinois

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