Withrow v. Walsh
Filing
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MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 12/18/2015. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIAN WITHROW,
Plaintiff,
v.
ELK GROVE POLICE DEPARTMENT
CHIEF CHARLES WALSH
Defendant.
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Case No. 15-cv-2222
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Elk Grove Police Department Chief Charles Walsh’s
(“Defendant”) motion to dismiss [4] pursuant to Federal Rule of Civil Procedure 12(b)(6),
Plaintiff Brian Withrow’s (“Plaintiff”) pro se motion for extension of time to respond to
Defendant’s 12(b)(6) motion [9], and Plaintiff’s pro se motion in opposition to Defendant’s
12(b)(6) motion [10]. For the reasons set forth below, removal was improper because the Court
lacks subject matter jurisdiction under 28 U.S.C. 1447(c). Defendant’s motion [4] and Plaintiff’s
motions [9] and [10] are denied as moot. The Court remands this case to the Circuit Court of
Cook County, Illinois for further proceedings.
I.
Background
On or about January 20, 2015, Brian Withrow (“Plaintiff”) filed a pro se complaint
against Elk Grove Police Department Charles Walsh (“Defendant”) in the Circuit Court of Cook
County, alleging that Defendant violated Plaintiff’s constitutional rights under the First
Amendment and the Due Process Clause, presumably of the Fourteenth Amendment. [2-1] at 2.
On February 22, 2015, Defendant was served with summons and the complaint. On March 13,
2015, Defendant filed a petition for removal pursuant to 28 U.S.C. § 1441.
Plaintiff’s complaint alleges that Defendant violated Plaintiff’s First Amendment and
Due Process rights when the Elk Grove Police Department (“Police Department”) denied
Plaintiff’s request for his incident and arrest records as he requested under Illinois’s Freedom of
Information Act. See 5 ILCS 140/1 et seq. On February 9, 2012, Plaintiff requested a copy of
his incident and arrest reports from the Police Department pursuant to FOIA in order to mount a
defense in his state criminal proceeding in the Circuit Court of Cook County (12-cr-2514). One
week later, the Police Department denied Plaintiff’s request citing 5 ILCS 140/7(1)(d)(i), which
exempts any documents where their disclosure would “interfere with pending or actually and
reasonably contemplated law enforcement proceedings conducted by any law enforcement or
correctional agency that is the recipient of the request.”
On March 12, 2012, Plaintiff sought review of the denial of his FOIA request by the
Public Access Bureau of the Illinois Attorney General (2012 PAC 18913). The Illinois Attorney
General forwarded a copy of Plaintiff’s request to the Defendant, who responded on April 9,
2012, citing the pending law enforcement proceedings exemption, as well as additional
exemptions under state FOIA as well as the Juvenile Court Act of 1987, 705 ILCS 405/1, which
Defendant alleged prohibits disclosure of any information identifying victims of sex offenses.
On June 14, 2012, the Illinois Attorney General determined that Defendant “had not sustained its
burden of demonstrating that the records are exempt from disclosure under section 7(1)(d)(i) of
FOIA” and that the Elk Grove Police Department “is required to disclose the information set
forth in section 2.15(a) of FOIA”, i.e., Plaintiff’s arrest and incident records pursuant to 5 ILCS
140/2.15. See [2-1] at 7. The Illinois Attorney General concluded its letter with a “request that
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the Department disclose records responsive to Mr. Withrow’s FOIA request.”
Id. at 8.
Importantly, the Illinois Attorney General “determined that resolution of this matter does not
require the issuance of a binding opinion.” Id. at 8-9. On September 27, 2012, Judge Mandeltort,
the Cook County Circuit Judge who was presiding over Plaintiff’s criminal trial, entered an order
that the “Elk Grove Village Police Department is forbidden from disseminating any documents
pursuant to the Freedom of Information Act during the pendency of the above captioned case.”
Id. at 10.
On April 14, 2014, Plaintiff filed a complaint in the Illinois Court of Claims alleging that
the Elk Grove Village Police Department, Defendant, and Cook County Circuit Judge
Mandeltort violated his constitutional rights by depriving him access of the requested documents
under Illinois’ FOIA statute. The State of Illinois filed a motion to dismiss, arguing that the
Court of Claims only has jurisdiction conferred by the Court of Claims Act, 705 ILCS 505/8, and
that statute grants exclusive and limited jurisdiction over claims against the State of Illinois, and
only the State.” [2-1] at 11 (citing Kennedy v. State, 61 Ill. Ct. Cl. 302, 303 (2009)). According
to Plaintiff’s motion in opposition to Defendant’s 12(b)(6) motion [10], Plaintiff withdrew his
complaint in the Court of Claims and “placed it in the Chancery [D]ivision which was case
#15ch859” [sic]. [10] at 2. Presumably, Plaintiff is referring to his filing on January 20, 2015 of
his pro se complaint, the operative complaint for our purposes, in the Circuit Court of Cook
County. In that complaint, Plaintiff alleges that Defendant violated Plaintiff’s constitutional
rights under the First Amendment and the Due Process Clause, presumably of the Fourteenth
Amendment. Id. at 2. On February 22, 2015, Defendant was served with summons and the
complaint. On March 13, 2015, Defendant filed a petition for removal pursuant to 28 U.S.C. §
1441(b).
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II.
Legal Standard
“The federal removal statute permits a defendant to remove a civil action from state court
when a district court has original jurisdiction over the action.” Micrometl Corp. v. Tranzact
Techs., Inc., 656 F.3d 467, 470 (7th Cir. 2011) (citing 28 U.S.C. § 1441(a)). If, however, “at any
time before final judgment it appears that the district court lacks subject-matter jurisdiction,” the
case must be remanded pursuant to § 1447(c). The Supreme Court has explained that “the literal
words of § 1447(c) * * * on their face, give no discretion to dismiss rather than remand an
action.” Int’l Primate Prot. League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 89
(1991) (citation and alterations omitted). An order remanding a case to state court for lack of
subject-matter jurisdiction “is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d).
In deciding whether to remand a case, the Court assumes the truth of the factual
allegations of the complaint. Sheridan v. Flynn, 2003 WL 22282378, at *3 (N.D. Ill. Sept. 30,
2003). A plaintiff’s choice of forum is presumed valid and the Court must resolve any doubts
about jurisdiction in favor of remand. See, e.g., Schur v. L.A. Weight Loss Centers, Inc., 577
F.3d 752, 758 (7th Cir. 2009); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)
(“Courts should interpret the removal statute narrowly and presume that the plaintiff may choose
his or her forum”); Schmude v. Sheahan, 198 F. Supp. 2d 964, 966 (N.D. Ill. 2002) (“Generally,
the removal statute is strictly construed, with an eye towards limiting federal jurisdiction”).
Defendants bear the burden of establishing that all of the prerequisites for removal have been
satisfied. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004); Schimmer v.
Jaguar Cars, Inc., 384 F.3d 402, 404 (7th Cir. 2004) (defendant must demonstrate “reasonable
probability that subject-matter jurisdiction exists”). In determining whether removal is proper,
the Court must consider the jurisdictional circumstances at the time that the removal was made.
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See, e.g., In re Shell Oil Co., 966 F.2d 1130, 1133 (7th Cir. 1992); Sheridan, 2003 WL
22282378, at *3.
III.
Analysis
Defendant raises three separate grounds upon which he believes the Court should dismiss
Plaintiff’s complaint, but the Court cannot rule on those grounds if the Court determines that
removal was improper based on lack of subject matter jurisdiction.
Defendant mislabeled their petition for removal as “pursuant to 28 U.S.C. § 1441(b),” the
subsection of the removal statute that deals with removal on the basis of diversity. However, the
parties, both being citizens and residents of Illinois, are not diverse in this action. Thus, removal
of Plaintiff’s complaint can only be proper under 28 U.S.C. § 1441(a). That section of the
removal statute reads as follows:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed
by the defendant or the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.
28 U.S.C. § 1441(a).
Here, removal of this case is only proper if the Court would have had original jurisdiction over
Plaintiff’s complaint. This Court has “original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” Id. § 1331. The usual test for federalquestion jurisdiction under § 1331 is the “well pleaded complaint rule,” which requires federal
courts to look only at the complaint itself “to determine if the case arises under federal law.”
Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 402 (7th Cir. 2001). “The rule makes the
plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on
state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, (1987).
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Both the Plaintiff and the Defendant insist that the Court does have original jurisdiction
because Plaintiff alleges a cause of action under Section 1983. However, the Court cannot
blindly accept any litigant’s invocation of the Court’s subject matter jurisdiction. Rather, the
Court has “an independent obligation to determine whether subject-matter jurisdiction exists,
even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501
(2006).
Thus, the Court must scrutinize the Plaintiff’s complaint to determine whether it
properly invokes federal subject matter jurisdiction.
The Plaintiff is, and has always been, pro se in this matter, and a careful reading of
Plaintiff’s operative complaint, namely the one filed in the Circuit Court of Cook County,
suggests that Plaintiff is seeking review of Defendant’s refusal to hand over Plaintiff’s incident
and arrest reports, which is plainly a matter of state law under Illinois’ Freedom of Information
Act. See 5 ILCS 140/1 et seq.
Section 1983 is not applicable here. Under Section 1983, a plaintiff must allege that the
defendant was “personally responsible for the deprivation of a constitutional right” because “he
directed the conduct causing the constitutional violation, or it occurred with his knowledge or
consent.”
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
The Plaintiff’s
constitutional rights are not implicated by his state FOIA proceedings. As the Seventh Circuit
has explained, the U.S. “Constitution does not require state and local governments to adhere to
their procedural promises.” River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166-67 (7th
Cir. 1994) (citing Olim v. Wakinekona, 461 U.S. 238, 248–51 (1983) (other citation omitted)).
Simply because Plaintiff alleges that Defendant violated Illinois law in refusing Plaintiff’s FOIA
request does not furnish him with a basis for invoking federal jurisdiction. Rather, “[f]ailure to
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implement state law violates that state law, not the Constitution; the remedy lies in state court.”
Id.
The Illinois Freedom of Information Act lays out the procedure by which Plaintiff can
seek review for Defendant’s actions. Under 5 ILCS 140/11(a) and (b), “[a]ny person denied
access to inspect or copy any public record by a public body may file suit for injunctive or
declaratory relief,” and may do so in “the circuit court for the county where the public body has
its principal office or where the person denied access resides.” Hence, Plaintiff sought relief in
the Circuit Court of Cook County, where the Elk Grove Police Department has its principal
office and Defendant resides.
Illinois courts have explained how such disputes are to be adjudicated. There are “two
avenues of review for individuals whose FOIA requests are denied.” Shehadeh v. Madigan, 996
N.E.2d 1243, 1247 (Ill. App. Ct. 2013). “Under section 9.5 of FOIA, a person may file a request
for review with the Attorney General’s Public Access Counselor, who ‘shall determine whether
further action is warranted.’” Id. (quoting 5 ILCS 140/9.5(a), (c)). That is what Plaintiff did on
March 12, 2012. “The Counselor may resolve a request for review by mediation, by issuing a
binding opinion, or ‘by a means other than the issuance of a binding opinion.’” Id. (quoting 5
ILCS 140/9.5(f)). The Illinois Attorney General did precisely that with its non-binding letter on
June 14, 2012. Alternatively, Illinois’ FOIA “allows ‘any person denied access to inspect or copy
any public record by a public body’ to file in the circuit court a ‘suit for injunctive or declaratory
relief.’” Id. (quoting 5 ILCS 140/11(a)), see also Brown v. Grosskopf, 984 N.E.2d 1167, 1170
(Ill App. Ct. 2013) (laying out FOIA procedure when Illinois Attorney General issues nonbinding opinion); Stern v. Wheaton-Warrenville Cmty. Unit Sch. Dist. 200, 910 N.E.2d 85, 88 (Ill
App. Ct.2009) (laying out FOIA procedure in Illinois courts generally). Plaintiff availed himself
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of that procedure when he filed his case in the Circuit Court of Cook County on January 20,
2015.
This Court does not have jurisdiction to adjudicate a dispute between a “public body” of
the state of Illinois, see 5 ILCS 140/2(a), and a citizen of Illinois who is seeking records from
that entity. Illinois has created a procedure for such a dispute, outlined above, involving the
Public Access Bureau of the Illinois Attorney General and the Circuit Courts of the Illinois.
Accordingly, removal to this Court was improper for lack of subject matter jurisdiction, and this
Court must remand the case to the Circuit Court of Cook County pursuant to 28 U.S.C. 1447(c).
See Smith v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1142 (7th Cir.
1994) (vacating district court’s dismissal of removed case for lack of subject matter jurisdiction,
instructing district court to remand instead); see also Cont’l Cas. Co. v. S. Co., 284 F. Supp. 2d
1118, 1120 (N.D. Ill. 2003) (“The proper remedy for lack of subject matter jurisdiction in a case
removed from state court is not dismissal, however; it is remand.”) (citing 28 U.S.C. § 1447(c)).
IV.
Conclusion
For the reasons set forth above, removal was improper because the Court lacks subject
matter jurisdiction under 28 U.S.C. 1447(c). Defendant’s motion [4] and Plaintiff’s motions [9]
and [10] are denied as moot. The Court remands this case to the Circuit Court of Cook County,
Illinois for further proceedings.
Dated: December 18, 2015
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Robert M. Dow, Jr.
United States District Judge
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