Squires-Cannon, v. The Forest Preserve District of Cook County
Filing
52
Enter MEMORANDUM, OPINION AND ORDER: For the reasons stated therein, the Court grants the H&K Defendants motion to dismiss all claims against them. (Dkt. No. 16.) The Court also grants the District Defendants motion to dismiss all claims against Whi te and Counts II, III, and IV against the Forest Preserve District. (Dkt. No. 18.) The Court denies the District Defendants motion to dismiss Count I against the Forest Preserve District. (Dkt. No. 19.) Signed by the Honorable Virginia M. Kendall on 2/12/2016.Mailed notice(tsa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MERYL SQUIRES-CANNON,
Plaintiff,
v.
THE FOREST PRESERVE DISTRICT OF
COOK COUNTY, ILLINOIS, et al.
Defendant.
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No. 15 C 6876
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
On August 13, 2014, Defendant Forest Preserve District of Cook County, Illinois,
ordered the arrest of Plaintiff Meryl Squires-Cannon for trespass.
Squires-Cannon was
subsequently charged with criminal trespass. She brings a four-count complaint against the
Defendants for violation of her freedom of movement under 42 U.S.C. § 1983 (Count I) and
Illinois claims for civil conspiracy (Count II), false arrest (Count III), and malicious prosecution
(Count IV).
Defendants Holland & Knight, LLP and Christopher Carmichael (“H&K
Defendants”) filed a motion to dismiss all claims against them under Federal Rule of Civil
Procedure 12(b)(6).
Defendants Forest Preserve District and Dennis White (“District
Defendants”) also filed a motion to dismiss all counts under 12(b)(6). For the reasons stated
below, the Court dismisses all counts against the H&K Defendants and White. (Dkt. No. 16;
Dkt. No. 19.) The Court grants the District Defendants’ motion to dismiss Counts II, III, and IV
against the Forest Preserve District but denies its motion to dismiss Count I against the Forest
Preserve District. (Dkt. No. 19.)
1
BACKGROUND
Prior to August 13, 2014, Squires-Cannon at times resided in and operated an equine
breeding farm on Horizon Farms in Barrington Hills, Illinois. During 2013 and 2014, she visited
the farm regularly. (Dkt. No. 1 at ¶13.) Royalty Farms, LLC has managed the equine farm on
Horizon Farms since 2003 and is a lessee of Horizon Farms. Id. at ¶15. The Forest Preserve
District acquired titled to Horizon Farms and the lease to Royalty Farms on May 5, 2014 as the
result of a mortgage foreclosure. Id. at ¶14, 16. Holland & Knight, LLP and Carmichael
represented the Forest Preserve District in the foreclosure action. Id. Squires-Cannon was an
employee of Royalty Farms, and as part of her duties she came to Horizon Farms every morning
and evening in 2013 and 2014.
Id. at ¶18.
Employees of the Forest Preserve District
acknowledged Cannon’s presence and communicated to her that she was allowed to be on the
property to feed and care for the horses. Id. at ¶19.
In August 2014, the Forest Preserve District’s legal department instructed its staff and the
Forest Preserve District police to arrest Squires-Cannon for trespass if she entered the property.
Id. at ¶20. On August 13, 2014, pursuant to these instructions White arrested Squires-Cannon at
the usual time that she arrived to care for the horses. Id. at ¶21. Defendant Cooper then
handcuffed Squires-Cannon, placed her in the caged back seat of his police vehicle, and
transported her to another location on Horizon Farms. Id. at ¶23. Defendant Hildebrandt moved
Squires-Cannon to his vehicle and placed a different set of handcuffs on her. Id. at ¶24. SquiresCannon told Cooper and Hildebrandt that she was an employee of Royalty Farms several times.
Id. at ¶¶23-24.
Defendant Dwyer instructed Hildebrandt to take Squires-Cannon to the
Maywood police station for booking, however, Hildebrandt brought her instead to the Barrington
2
Hills police station. Id. at ¶¶25, 31. On April 21, 2015, a judge in the Circuit Court of Cook
County found Squires-Cannon not guilty of criminal trespass. Id. at ¶35.
LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss under Rule 12(b)(6), a
complaint must allege sufficient factual matter to state a claim to relief that is plausible on its
face.” Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015) (quotation omitted). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “To satisfy the notice pleading standard of Rule 8(a)(2) of
the Federal Rules of Civil Procedure, a complaint must merely provide a short and plain
statement of the claim which is sufficient to give the defendant fair notice of what the...claim is
and the grounds upon which it rests[.]” Smith v. Dart, 803, F.3d 304, 309 (7th Cir. 2015)
(quotation omitted). When reviewing a complaint on a 12(b)(6) motion, the Court accepts all
well-pleaded facts in the Complaint as true and then asks whether those facts state a plausible
claim for relief. Id. at 679. But allegations that state “legal conclusions” or “[t]hreadbare
recitals of the elements of a cause of action” are not entitled to the assumption of truth. Id. at
678.
DISCUSSION
I.
Count I States a Claim for Relief Under Section 1983
The District Defendants seek the dismissal of Count I under Rule 12(b)(6) because it does
not specify “any Constitutional or federal statutory provision that Defendants are alleged to have
3
violated.” (Dkt. No. 19 at 5.) Squires-Cannon in turn argues that the Complaint properly alleges
that the District Defendants violated her right to freedom of movement because it claims that
they handcuffed her, put her in a police vehicle, and took her to the police station where she was
processed. (Dkt. No. 27 at 3.)
Count I is a cause of action under 42 U.S.C. § 1983, which allows for relief where a
person acting color of law violates a right, privilege, or immunity that is “secured by the
Constitution and law[.]”
The Fourth Amendment guarantees the right to be free from
“unreasonable searches and seizures[.]” U.S. CONST. amend. IV.
“A ‘seizure’ within the
meaning of the Fourth Amendment occurs when a person's freedom of movement is restrained
either by means of physical force or show of authority.” Carter v. City of Milwaukee, 743 F.3d
540, 543 (7th Cir. 2014). The Complaint alleges that the Defendants arrested her and she was
“deprived of her liberty and ability to move about freely.” (Dkt. No. 1 at ¶32.) It also alleges
that “[a]s the direct and proximate result of the conduct of the Defendants, Plaintiff was
wrongfully deprived of her liberty[.]” Id. at ¶38. A traditional arrest, like that alleged by
Squires-Cannon, in which an individual is handcuffed and taken to a police station is a clear
“search” or “seizure” under the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 17 (1968);
Bentz v. City of Kendallville, 577 F.3d 776, 780 (7th Cir. 2009) (“plaintiff states a claim under §
1983 claim…where his freedom of movement was limited or restrained in some way without
probable cause.”).
Furthermore, these allegations provide the Defendants ample notice as
required by Rule 8(a)(2) that Squires-Cannon seeks relief based on a violation of her Fourth
Amendment rights because the claim that she was unlawfully arrested clearly references a
deprivation of Fourth Amendment rights. See Smith, 803 F.3d at 309. Viewing the factual
allegations in the light most favorable to Squires-Cannon, the Complaint states a claim for relief
4
for violation of Squires-Cannon’s Fourth Amendment right to be free from unreasonable search
and seizure under Section 1983 because it states that the Defendants arrested her and took her to
the police station. 1
II.
Existence of Probable Cause Belies Claims for False Arrest and Malicious
Prosecution
The H&K Defendants argue that Counts III and IV should be dismissed under Rule
12(b)(6) because the Complaint and public court orders prove that there was probable cause to
arrest Squires-Cannon. (Dkt. No. 18 at 5.) The District Defendants join H&K Defendants’
argument with respect the existence of probable cause as its basis for moving to dismiss Counts
III and IV. (Dkt. No. 19 at 7.) All Defendants moving to dismiss therefore posit that there was
probable cause to arrest Squires-Cannon for trespass because in the foreclosure suit the state
court issued orders mandating that Squires-Cannon vacate the property, confirming the Forest
Preserve District’s possession of title to the property, and permitting Squires-Cannon’s eviction
from the property if she failed to cede possession. (Dkt. No. 18 at 6.) Defendants assert that the
Court can consider these state court orders at this stage because it may take judicial notice of
public court documents. Id. at 3 n.2. In response, Squires-Cannon argues that the Complaint
sufficiently alleges a lack of probable cause because the Forest Preserve District’s staff was
aware of her regular entry on the property, and consequently she had no notice that the Forest
Preserve District “considered her presence on the property to be a crime.” (Dkt. No. 26 at 3.)
Squires-Cannon objects to the Court’s consideration of state court orders at the motion to dismiss
stage because she contends that the Court must limit its inquiry to the “four corners of
1
As explained in Section II, the Defendants had probable cause to arrest Squires-Cannon for trespass. Probable
cause to arrest defeats a claim for deprivation of Fourth Amendment rights. See Nat’l Cas. Co. v. McFatridge, 604
F.3d 335, 344 (7th Cir. 2010) (holding that probable cause extinguishes Fourth Amendment and malicious
prosecution claims). The District Defendants, however, did not move to dismiss Count I based on failing to state a
claim under the Fourth Amendment due to the existence of probable cause. The Court therefore will not consider
whether to dismiss Count I under this argument.
5
complaint.” Id. at 4. In the event that the Court considers the state court order, Squires-Cannon
claims that the Defendants still did not have probable cause to arrest her because the May 5,
2014 order “approving the foreclosure sale of Horizon Farms to the District expressly excluded
any provision that would affect the rights of tenant and other occupants, such as Royalty
Farms[.]” Id. at 5. Squires-Cannon argues that she was included in this exception as she was a
Royalty Farms employee. Id. She also points to language in the May 5, 2014 order that requires
a “Supplemental Order of Possession or an order from the Forcible Entry of Detainer Court” for
the eviction of non-parties to the foreclosure action as proof of lack of probable cause for her
arrest. Id.
As an initial matter, the Court “may take judicial notice of matters of public record
without converting a 12(b)(6) motion into a motion for summary judgment.” Henson v. CSC
Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). In its 12(b)(6) inquiry, the Court may therefore
take judicial notice of the state court orders presented by the Defendants in their motions to
dismiss as they are matters of public record. See id.; 4901 Corp. v. Town of Cicero, 220 F.3d
522, n.4 (7th Cir. 2000) (reviewing district court’s order as a motion for dismissal under 12(b)(6)
and not a motion for summary judgment because it properly took judicial notice of a state court
order).
Under Illinois law, lack of probable cause is an essential element of both false arrest and
malicious prosecution. See Mannoia v. Farrow, 476 F.3d 453, 459 (7th Cir. 2007) (the Court’s
“finding that the arrest warrant was supported by probable cause precludes [the plaintiff] from
recovering on his claims of false arrest and malicious prosecution because under Illinois law,
lack of probable cause is an essential element of both torts.”); Kincard v. Ames Dep’t Stores,
Inc., 670 N.E.2d 1103, 1109 (Ill. App. Ct. 1996) (recognizing that probable cause defeats claims
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for malicious prosecution and false arrest). Illinois law defines “probable cause” as “a state of
facts that would lead a person of ordinary caution and prudence to believe, or to entertain an
honest and strong suspicion, that the person arrested committed the offense charged.” Reynolds
v. Menard, Inc., 850 N.E.2d 831, 839 (Ill. App. Ct. 2006). “A reasonable ground for belief of the
guilt of an accused may be on information from other persons as well as on personal
knowledge.” Turner v. City of Chicago, 415 N.E.2d 481, 486 (Ill. App. Ct. 1980) (citations
omitted). It is not necessary to verify the correctness of each item of information so obtained; it
is sufficient to act with reasonable prudence and caution in so proceeding.” Id. “Probable cause
for an arrest exists when a person could reasonably believe, in light of the facts and
circumstances within the knowledge of the arresting officer at the time of the arrest, that the
suspect had committed or was committing an offense.” United States v. Kincaid, 212 F.3d 1025,
1029 (7th Cir. 2000) (citation omitted). The Court may dismiss a complaint under 12(b)(6) if
even when drawing all reasonable inferences in favor of the plaintiff, the factual allegations
support a finding of probable cause. See Williamson v. Curran, 714 F.3d 432, 448 (7th Cir.
2013) (affirming district court’s holding that the plaintiff “pleaded herself out of court” because
there was probable cause defeating her false arrest claim).
On October 10, 2013, the Circuit Court of Cook County issued an order granting BMO
Harris Bank and the Forest Preserve District possession of Horizon Farms. (Dkt. No. 18, Ex. H
at 2-3.) The state court in its order required the state court defendants—which included SquiresCannon—to vacate the property by November 18, 2013 and prohibited them from interfering
with possession of the property. Id. at 3-4. On May 5, 2014, the state court approved of the
foreclosure sale of Horizon Farms to the Forest Preserve District and mandated that “the Sherriff
of Cook County is directed to evict and dispossess, no sooner than 30 days from the entry of this
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Order, Royalty Properties, LLC, Cannon Squires Properties, LLC, Richard Kirk Cannon and
Meryl Squires Cannon from the mortgaged real estate…without further Order of Court[.]” (Dkt.
No. 18, Ex. E. at 6.) The state court ordered “[n]o occupants other than the individuals named in
the Order of Possession may be evicted without a Supplemental Order of Possession or an order
from the Forcible Entry of Detainer Court[.]” Id. at 7. It further held that “[n]o occupants other
than the individuals named in the Order of Possession may be evicted without a Supplemental
Order of Possession or an order from the Forcible Entry of Detainer Court[.]”
Id.
The
Complaint admits that pursuant to the May 5, 2014 order, “the Forest Preserve District acquired
title to the Horizon Farms property” and Squires-Cannon “was a party to that litigation, adverse
to the Forest Park District[.]” (Dkt. No. 1. at ¶14.) It also alleges that “Employees and staff of
the Forest Preserve District repeatedly acknowledged Plaintiff’s presence at Horizon Farms and
communicated to her that she was permitted to enter the property to feed and care for the horses.
From time to time the Forest Preserve District personnel at the farm, including Forest Preserve
District police officers, checked with their superiors and others to confirm that Plaintiff was
permitted to enter the property.” Id. at ¶19.
Viewing these facts in the light most favorable to Squires-Cannon and drawing all
inferences in her favor, there was probable cause to arrest Squires-Cannon on August 13, 2014
for trespass. Under Illinois law, “[a] person commits criminal trespass to real property when he
or she: (1) knowingly and without lawful authority enters or remains within or on a building; [or]
(2) enters upon the land of another, after receiving, prior to the entry, notice from the owner or
occupant that the entry is forbidden[.]” 720 ILCS 5/21-3(a)(1-2). “A person has received notice
from the owner or occupant…if he or she has been notified personally, either orally or in writing
including a valid court order[.]” 720 ILCS 5/21(b). According to the Complaint, “the Forest
8
Preserve District’s legal department gave instructions to the Forest Preserve District maintenance
staff employees and to the Forest Preserve District police department, that if Plaintiff was
observed on the property she should be arrested for trespass.” (Dkt. No. 1 at ¶20.) Although the
Complaint does not specify the reason why this instruction was given, the only reasonable
inference is that the Forest Preserve District sought to have Squires-Cannon arrested for trespass
in order to enforce the October 13, 2013 and May 5, 2014 orders banning her from the property
because she had been entering the property every day in contravention of those orders.
In light
of the October 13, 2013 and May 5, 2014 orders, it was reasonable to believe that SquiresCannon committed trespass on August 13, 2014. First, under the October 13, 2013 order,
Squires-Cannon was not permitted on Horizon Farms as of November 18, 2013. (Dkt. No. 18,
Ex. H at 3-4.) As such, that order alone provided the Defendants probable cause to arrest her for
trespass on August 13, 2014. But in addition, the May 5, 2014 order reiterated that SquiresCannon cannot lawfully enter Horizon Farms as it specifies Squires-Cannon by name as an
individual who the Sherriff thereafter had permission to “evict and dispossess…without further
Order of Court[.]” (Dkt. No. 18, Ex. E. at 6.) Consequently, a reasonable person would interpret
the October 13, 2013 and May 5, 2014 court orders in conjunction with Squires-Cannon’s
presence on the property on August 13, 2014 as more than sufficient to create probable cause
that she had committed trespass.
Squires-Cannon claims that she had no notice that the Forest Preserve district considered
her presence on the property trespass because she entered the property every day prior to August
13, 2014. (Dkt. No. 26 at 3; Dkt. No. 27 at 6.) Squires-Cannon received notice under Illinois
law from both the October 13, 2013 and May 5, 2014 court orders that her entry on the property
after November 18. 2013 would constitute trespass and the Sherriff could correspondingly evict
9
her. See 720 ILCS 5/21(b). And it was reasonable for the Defendants to infer that SquiresCannon had received notice of these orders, regardless of the fact that she continued to defy them
by regularly entering the property. See Kincaid, 212 F.3d at 1029 (holding that the proper
inquiry is “whether a reasonable person” in the arrestor’s position “would infer notice onto” the
arrestee). The Complaint does allege that the Forest Preserve District “communicated” to
Squires-Cannon that she could enter the property and “confirmed” this with “their superiors[.]”
(Dkt. No. 1 at ¶19.) But even accepting these allegations as true, it does not change the reality
that there were two state court orders prohibiting her entry and mandating her eviction which by
law gave her notice that entry is unlawful.
Squires-Cannon’s arguments that the May 5, 2014 order exempted her from eviction are
also unfounded. (Dkt. No. 26 at 5; Dkt. No. 27 at 8.) As Squires-Cannon points out, the state
court removed from this order language mandating the eviction of “any Unknown Owners, and
Non-Record Claimants”; however, Squires-Cannon does not fall into this category because the
same sentence of the order names her as an individual who the Sherriff is directed to evict. (Dkt.
No. 18, Ex. E. at 6.) Squires-Cannon similarly misinterprets the next paragraph in the May 5,
2014 order, which states that the Sherriff must obtain a “Supplemental Order of Possession or an
order from the Forcible Entry of Detainer Court” in order to evict individuals not named in the
order. Id. Squires-Cannon was named as a defendant in the May 5, 2014 order and that order
specifically identifies Squires-Cannon as an individual who the Sherriff could evict. Id. Lastly,
Squires-Cannon argues that the state court orders did not mandate her eviction because she was
entitled to be on the property as an employee of Royalty Properties, LLC, which had a right to be
on the property under a lease. (Dkt. No. 26 at 6; Dkt. No. 27 at 8.) But this argument fails in the
face of both orders requiring Squires-Cannon as an individual to vacate the property or face
10
eviction. In short, there was probable cause to arrest Squires-Cannon for trespass because two
state court orders prohibited her presence on the property and ordered her eviction. Because a
lack of probable cause is required to state a claim for false arrest and malicious prosecution, the
Court grants the H&K Defendants and District Defendants’ motions to dismiss Counts III and IV
with prejudice.
III.
Count II: Civil Conspiracy
Count II alleges that the Defendants committed civil conspiracy because “Defendants
Carmichael and Holland & Knight, LLP, at a time or times not known to Plaintiff but on or
before August 13, 2014, communicated and conspired with one or more of the other Defendants,
including Dennis White, one or more of Does Nos. 1-15, and the Forest Preserve District,
making a plan and agreement that the Forest Preserve District, through its own police force,
would apprehend Plaintiff on the Horizon Farms property, arrest her and charge her with a crime,
and then prosecute her for the same.” (Dkt. No. 1 at ¶42.) It further lists overt acts that were
allegedly committed in furtherance of the conspiracy, specifically: “Holland & Knight, LLP and
Carmichael provided advice and counsel to the Forest Preserve District that Plaintiff could be
treated as a trespasser and arrested,”; “Dennis White gave directions to Defendants Dwyer and
Hildebrandt to arrest Plaintiff, take her into custody and transport her,”; and “The Forest
Preserve District, through its own private police force, and without probable cause, arrested the
Plaintiff, took her into custody, caused her to be charged with a criminal offense, and then
maliciously prosecuted her.” Id. at ¶43.
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A.
Failure to State a Claim for an Underlying State Law Tort
The H&K Defendants and District Defendants 2 claim that the Complaint fails to state a
claim for civil conspiracy in Count II because there was probable cause to arrest SquiresCannon, thereby negating the possibility that they committed an unlawful act. (Dkt. No. 18 at
11.) “To succeed in a claim of civil conspiracy under Illinois law, the plaintiffs must eventually
establish: (1) an agreement between two or more persons for the purpose of accomplishing either
an unlawful purpose or a lawful purpose by unlawful means; and (2) at least one tortious act by
one of the co-conspirators in furtherance of the agreement that caused an injury to the plaintiff.”
Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 509 (7th Cir. 2007). To succeed on a
civil conspiracy claim in Illinois, evidence of agreement alone is not enough because under the
second element, “[a] cause of action for civil conspiracy exists only if one of the parties to the
agreement commits some act in furtherance of the agreement, which is itself a tort.” Adcock v.
Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994). The reason is that the civil conspiracy law
criminalizes “not the agreement itself, but the tortious acts performed in furtherance of the
agreement.” Id. Accordingly, to survive a motion to dismiss, the Complaint must plausibly
allege at least one of the underlying state law torts in the civil conspiracy claim and if it fails to
do so, the civil conspiracy claim must be dismissed.
As described above, the Complaint fails to properly allege false arrest and malicious
prosecution because there was probable cause to arrest Squires-Cannon based on the state court
orders. And because the Complaint does not state a claim for an underlying state law tort, the
civil conspiracy claim fails.
The Court thus grants the District Defendants and H&K
2
The District Defendants “join Section A” of the H&K Defendants’ motion to dismiss. (Dkt. No. 19 at 7.) Section
A of the H&K Defendants’ motion to dismiss seeks dismissal of all claims against them, including the civil
conspiracy claims. Hence, the District Defendants’ adopted the H&K Defendants’ arguments with respect to
probable cause barring the civil conspiracy claim.
12
Defendants’ motions to dismiss Count II without prejudice because the Complaint fails to allege
a tort, as required by Illinois law. See, e.g., Johnson v. Dossey, 878 F.Supp.2d 905, 918 (N.D.
Ill. 2012) (granting summary judgment in favor of the defendant on civil conspiracy claim
because there was probable cause for the plaintiff’s arrest and prosecution); U.S. Data Corp. v.
RealSource, Inc., 910 F.Supp.2d 1096, 1110 (N.D. Ill. 2012) (“if the plaintiff fails to establish
the underlying tortious act, then the conspiracy claim also fails.”).
B.
Count II Fails under the Intracorporate Conspiracy Doctrine
In the alternative, the District Defendants and H&K Defendants seek the dismissal of
Count II on the basis that they could not have conspired with the other Defendants under the
intracorporate conspiracy doctrine because they were all employees of the Forest Preserve
District.
(Dkt. No. 18 at 12; Dkt. No. 19 at 5-6.)
Squires-Cannon responds that the
intracorporate conspiracy doctrine does not apply because the conspiracy was between the
District Defendants and the Forest Preserve District’s outside counsel. (Dkt. No. 26 at 8; Dkt.
No. 27 at 4.)
Under the intracorporate conspiracy doctrine, “a civil conspiracy cannot exist between a
corporation's own officers or employees.” Van Winkle v. Owens-Corning Fiberglas Corp., 683
N.E.2d 985, 991 (Ill. App. Ct. 1997). There are two exceptions to this rule: (1) “where corporate
employees are shown to have been motivated solely by personal bias,” and (2) where “the
conspiracy was part of some broader discriminatory pattern…or…permeated the ranks of the
organization's employees.” Hartman v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 47071 (7th Cir. 1993); see, e.g., Stone v. Bd. of Trs. of Northern Ill. Univ., 38 F.Supp.3d 935, 949-50
(N.D. Ill. 2014). The intracorporate conspiracy doctrine extends to consultation between outside
legal counsel and an entity such that these communications are not a conspiracy. See Travis v.
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Gary Cmty. Mental Health Ctr. Inc., 921 F.2d 108, 111 (7th Cir. 1990) (holding that there was
no conspiracy where an entity consulted with outside counsel about terminating the plaintiff
because otherwise it “would discourage corporations from obtaining legal advice before acting,
hardly a sound step to take.”). According to the Complaint, White was a lawyer in the Forest
Preserve District’s “legal department,” and the H&K Defendants were also legal counsel to the
Forest Preserve District. (Dkt. No. 1 at ¶¶8-9; 20-21.) Even reading these allegations in the light
most favorable to Squires-Cannon, the Complaint falls short of stating a claim for civil
conspiracy against the District Defendants because they are employees of the same organization
who cannot conspire under the intracorporate conspiracy doctrine. The Complaint fails under
12(b)(6) against the H&K Defendants as well because the communications that is allegedly a
conspiracy was legal advice the H&K Defendants provided its client as outside counsel, which
cannot constitute a conspiracy. See Travis, 921 F.2d at 111. Lastly, neither of the exceptions to
the intracorporate conspiracy doctrine plausibly apply: first, the Complaint has no allegation of
the Defendants’ personal bias against Squires-Cannon but only claims that they conspired “for
the specific purpose of intimidating and harassing her and causing her harm” (Dkt. No. 1 at ¶46);
and second, the Complaint is void of any allegation that there was a “broader discriminatory
pattern” or that the conspiracy “permeated the ranks” of the Defendants. Hartman, 4 F.3d at
470-71. As a result, the Court dismisses Count II against the District Defendants and H&K
Defendants with prejudice because it fails under the intracorporate conspiracy doctrine.
IV.
White is Entitled to Qualified Immunity
Defendant White argues in the alternative that all claims should be dismissed against him
because he is entitled to qualified immunity as a government officer. (Dkt. No. 19 at 11.) He
proposes that even though he is not a police officer, he should receive qualified immunity
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because he is a government official who was acting in his official capacity when he allegedly
arrested Squires-Cannon. Id. at 12. White claims that qualified immunity applies because
Squires-Cannon “did not properly allege a violation of a federal constitutional or statutory
right[.]” Id. Squires-Cannon counters that qualified immunity does not apply because the
Complaint’s allegation that White violated her right of free movement when she was falsely
arrested properly states a claim for deprivation of a well-established constitutional right. (Dkt.
No. 27 at 9-10.)
When a defendant claims the affirmative defense of qualified immunity, the Court
“appl[ies] a two-step approach. As a threshold issue, we determine if [the defendant] has
asserted a violation of a constitutional right. We next consider whether the right was clearly
established at the time the alleged violation occurred.” Delaney v. DeTella, 256 F.3d 679, 682
(7th Cir. 2001) (citations omitted). In the first step, the Court considers whether the plaintiff has
stated a claim for a constitutional deprivation. See id. at 683; Levenstein v. Salafsky, 164 F.3d
345, 351 (7th Cir. 1998) (“once the public official raises the defense of qualified immunity, the
plaintiff bears the burden of showing (1) whether he or she has asserted a violation of a
constitutional right[.]”). The second step requires the plaintiff to prove that “the applicable
constitutional standards were clearly established at the time in question.” Levenstein, 164 F.3d at
351. “The key point for the second question is whether a reasonable person would have been on
notice that her actions violated clearly established law. A plaintiff can establish this either by
showing that a closely analogous case has already established both the right at issue and its
application to the factual situation at hand…or by showing that the violation was so obvious that
a reasonable person would necessarily have known about it.” Erwin v. Daley, 92 F.3d 521, 525
(7th Cir. 1996) (citation omitted). The plaintiff must satisfy her burden for both steps in order
15
for the Court to find that the defendant is not entitled to qualified immunity. See Levenstein, 164
F.3d at 351.
The Complaint states that on August 13, 2014, White was an attorney for the Forest
Preserve District who instructed the Forest Preserve District police department to arrest SquiresCannon for trespass. (Dkt. No. 1 at ¶¶20-21; 44.) As an attorney representing a government
entity, White is considered a public official for immunity purposes. See Filarsky v. Delia, 132
S.Ct. 1657, 1666 (2012) (holding that a private attorney retained by a city is entitled to assert
qualified immunity).
Turning to the two-step qualified immunity analysis, Squires-Cannon
satisfied her burden in the first step because, as outlined in Section I, the Complaint alleges
sufficient facts to state a claim for the violation of a constitutional right. With respect to the
second step, the question is whether a reasonable person in White’s position would have been on
notice that arresting Squires-Cannon for trespass violated clearly established law. See Erwin, 92
F.3d at 525. Squires-Cannon fails to make this showing as she presented neither a “closely
analogous case [that] has already established both the right at issue and its application to the
factual situation” nor an argument that “the violation was so obvious that a reasonable person
would necessarily have known about it.” Id. Squires-Cannon does not cite to any case as
factually analogous in her response. (Dkt. No. 27 at 9-11.) She posits that “[i]t has been settled
for some time that the arrest and prosecution of an individual without probable cause or
reasonable grounds is a violation of that individual’s rights.” Id. at 10. But, as explained in
Section II, there was ample evidence from the state court orders banning Squires-Cannon from
the property and ordering her eviction to create probable cause to arrest Squires-Cannon for
trespass, and the existence of probable cause negates claims for a violation of Fourth
Amendment rights, false arrest, and malicious prosecution. See Sparing v. Village of Olympia
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Fields, 266 F.3d 684, 688 (7th Cir. 2001) (finding that under the Fourth Amendment “police
officers may constitutionally arrest an individual in a public place (e.g., outside) without a
warrant, if they have probable cause.”); Mannoia, 476 F.3d at 459. Accordingly, Squires-Cannon
fails to satisfy her burden in the second step of the qualified immunity inquiry as a reasonable
person in White’s position would not have notice that arresting Squires-Cannon was a violation
of her rights under clearly established law because he reasonably determined that there was
probable cause to arrest her. Because Squires-Cannon did not meet her burden in both steps of
the two-step qualified immunity inquiry, White is entitled to qualified immunity and the Court
dismisses Counts I, II, III, and IV against him with prejudice.
V.
It is Plausible that H&K Defendants are Liable for False Arrest and Malicious
Prosecution as Private Individuals
The H&K Defendants argue that even if Counts III and IV are not dismissed for probable
cause, they cannot be liable for false arrest and malicious prosecution as private individuals.
(Dkt. No. 18 at 9.) They assert that they cannot be liable under Illinois law for an arrest and
prosecution because the Complaint alleges that the H&K Defendants merely “provided a legal
interpretation of a state court order for its client.” Id. at 10. Squires-Cannon, on the other hand,
claims that the Complaint states claims for false arrest and malicious prosecution against the
H&K Defendants because it can be inferred from the allegations that their “involvement was an
active collaboration to cause an arrest and prosecution.” (Dkt. No. 26 at 7.) She retorts that
“[t]he H&K Defendants specifically requested and directed the District Defendants to arrest and
prosecute” her and their “participation was so active and positive in character as to amount to
advice and cooperation to commence the criminal proceeding.” Id. at 7-8.
“Illinois law requires that, in order to commence or continue a criminal proceeding, the
defendant must have initiated the criminal proceeding or his participation in it must have been of
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so active and positive a character as to amount to advice and cooperation. Thus, a private citizen
does not commence a criminal action merely by reporting information to the police—even if the
information later turns out to be incorrect.” Logan v. Caterpillar, 246 F.3d 912, 922 (7th Cir.
2001). In order to for a private individual to be liable for malicious prosecution in Illinois, the
plaintiff must demonstrate that the defendant either “(1) instituted the proceedings against the
plaintiff; (2) knowingly made false statements to the police; or (3) requested, directed, or
pressured the officer into swearing out the complaint for the plaintiff's arrest.” Id.; see, e.g., Doe
v. City of Chicago, 39 F.Supp.2d 1106, 1113 (N.D. Ill. 1999). Furthermore, Illinois law holds a
“private individual…liable for false arrest if the defendant goes beyond merely giving
information and participates in making an arrest which turns out to be unlawful.” See Olinger v.
Doe, 163 F.Supp.2d 988, 990 (N.D. Ill. 2001).
“It is well settled in Illinois that giving
information to police in itself is insufficient to constitute participation in an arrest.” Butler v.
Goldblatt Bros., Inc., 589 F.2d 323, 326, (7th Cir. 1978) (quotation omitted).
individual can be liable for false arrest if she directs or procures the arrest.
A private
See id.
(acknowledging that defendants not liable if “they had not directed procured” the false arrest).
The Complaint alleges that “[a]t some point in August 2014, unbeknownst to the
Plaintiff, the Forest Preserve District’s legal department gave instructions to the Forest Preserve
District maintenance staff employees and to the Forest Preserve District police department, that
if Plaintiff was observed on the property she should be arrested for trespass.” (Dkt. No. 1 at
¶20.) It then states that Cooper arrested Squires-Cannon on August 13, 2014 pursuant to the
H&K Defendants’ instructions. Id. at ¶¶21-23. Regarding the malicious prosecution claim, a
private individual initiates a criminal judicial proceeding by filing a complaint, see Logan, 246
F.3d at 922, but the Complaint does not allege that the H&K Defendants filed a complaint
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against Squires-Cannon. Moreover, even viewing its allegations in the light most favorable to
Squires-Cannon, the Complaint does not plausibly demonstrate that the H&K Defendants either
“knowingly made false statement to the police[.]” Id. But it is plausible that they “requested,
directed, or pressured the officer into swearing out the complaint for the plaintiff's arrest”
because the Complaint alleges that they instructed the police to arrest Squires-Cannon. Id.
Similarly, the Complaint properly alleges that the H&K Defendants can be liable for false arrest
because it states that they directed the police to arrest Squires-Cannon. See Butler, 589 F.2d at
326; see e.g., Olinger, 163 F.Supp.2d at 990 (“a defendant must go beyond providing the
information leading to the arrest and actually request and obtain the arrest” to be held liable as a
private citizen). The Court therefore denies the H&K Defendants’ motion to dismiss Counts III
and IV for the reason that the Complaint does not state a claim for holding them liable as private
individuals for malicious prosecution and false arrest. Nevertheless, as explained in Section II,
the Court dismisses Counts III and IV against the H&K Defendants because there was probable
cause to arrest Cannon.
VI.
Absolute Litigation Privilege Bars Claims against H&K Defendants
The H&K Defendants’ final argument for dismissal opines that all claims fail under
12(b)(6) because they are barred by their “privilege to provide litigation advice to its clients.”
(Dkt. No. 18 at 12.) They further claim that the Complaint should be dismissed because SquiresCannon cannot ask the Court to review previous litigation by another court as the state court
already denied Squires-Cannon’s motion for sanctions for the August 13, 2014 arrest. Id. at 14.
Squires-Cannon disputes whether the absolute litigation privilege applies to the causes of action
in the Complaint. (Dkt. No. 26 at 10.) She also argues that the Court can provide her redress
because the H&K Defendants’ misconduct has not been adjudicated in the state court. Id. at 11.
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“Illinois law recognizes an absolute litigation privilege which protects anything said or
written in the course of a legal proceeding. The only qualification to this privilege is that the
communication pertain to the litigation. This requirement is not applied strictly, and the
communication need not be confined to the specific issues involved in the litigation....The
rationale for the privilege is to secure for attorneys as officers of the court the utmost freedom in
representing clients. The absolute privilege is afforded even when malice is assumed to have
motivated the attorney. All doubts are to be resolved in favor of finding that the privilege
applies.” Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th Cir. 1998) (citation omitted). The
Complaint brings claims against the H&K Defendants for giving the order to arrest SquiresCannon. Drawing all reasonable inferences in Squires-Cannon’s favor, the plausible reason was
that the H&K Defendants believed as the Forest Preserve District’s attorneys that SquiresCannon’s arrest would protect the its property rights under the state court orders.
In her
response, Squires-Cannon suggests that they gave the order to “intimidate and harass her in
retaliation for her defense of the foreclosure litigation.” (Dkt. No. 26 at 10.) But even if this was
their motivation, the H&K Defendants’ actions are protected under the absolute litigation
privilege because “even when malice is assumed to have motivated the attorney,” the attorney’s
action is protected. Steffes, 144 F.3d at 1074.
In addition, the absolute litigation privilege is not limited to protection against claims for
“defamation, invasion of privacy, breach of contract, or negligent infliction of emotional
distress,” as argued by Squires-Cannon. (Dkt. No. 26 at 11.) Under Illinois law, the absolute
litigation privilege applies traditionally applies to not only to attorneys’ communication “made
before, during, and after litigation,” but also whenever “Illinois policy would be furthered by
doing so.” O’Callaghan v. Satherlie, 36 N.E.3d 999, 1008-09 (Ill. App. Ct. 2015) (finding that
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absolute litigation privilege applies to claims for intentional infliction of emotion distress and
strict liability). This principle comports with the rule in Illinois that “[t]here is no civil cause of
action for misconduct which occurred in prior litigation. Instead, parties should attempt to
redress injuries from misconduct in judicial proceedings in the same litigation.
Were it
otherwise, litigation would never end. Moreover, it is improper for a trial court to review prior
litigation that occurred before a different judge.” Id. at 1009 (citations and quotations omitted);
see also Johnson v. Johnson & Bell, Ltd, 7 N.E.3d 52, 57 (Ill. App. Ct. 2014) (“Petitions to
redress injuries resulting from misconduct in judicial proceedings should be brought in the same
litigation.”) (citation omitted). The H&K Defendants’ instruction to its client to arrest SquiresCannon was made after the foreclosure litigation in order to enforce its resolution. It was given
in furtherance of state court orders that had already decided the issue of whether Squires-Cannon
could lawfully enter the property. If this Court were to question the state court orders banning
Squires-Cannon from the property and mandating her eviction, it would violate Illinois law
prohibiting another court from reviewing an order. See id. Moreover, as noted by the H&K
Defendants, the state court denied Squires-Cannon’s motion for sanctions as a result of her arrest
and prosecution for criminal trespass. (Dkt. No. 18 at Ex. J.) Thus, the state court has ruled a
total of three times that Squires-Cannon cannot enter the property and the Forest Preserve
District has the right to evict her. The Court cannot review these decisions by the state court.
See O’Callaghan, 36 N.E.3d at 1009; Johnson, 7 N.E.3d at 57. In conclusion, the Court grants
the H&K Defendants’ motion to dismiss all claims against them with prejudice because they are
protected under the absolute litigation privilege.
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VII.
Abstention is Not Warranted
Finally, the District Defendants ask the Court in the alternative to stay this case under the
Colorado River doctrine because of identical state court lawsuits. (Dkt. No. 19 at 13.) SquiresCannon opposes abstention because she believes that the state court litigation is not parallel to
this action.
(Dkt. No. 27 at 12.)
The Colorado River doctrine allows federal courts in
exceptional cases to defer to a concurrent state court case because of the need to give regard to
conservation of judicial resources and comprehensive disposition of litigation. See Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). In determining
whether to abstain under to the Colorado River doctrine, the Court conducts a two-part inquiry.
See Tyrer v. City of South Beloit, Ill., 456 F.3d 744, 751 (7th Cir. 2066). First, it must decide
whether the concurrent state and federal actions are parallel. Id. The two suits are parallel when
“substantially the same parties are contemporaneously litigating substantially the same issues.”
Id. at 752. But “[p]recisely formal symmetry is unnecessary” for finding they are parallel; rather,
“the question is whether there is a substantial likelihood that the state litigation will dispose of all
claims presented in the federal case.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 499 (7th Cir.
2011) (quoting Clark v. Lacy, 376 F.3d 682, 686 (7th Cir. 2004)). Second, only if the Court
finds that the suits are parallel, it must then weigh a number of non-exclusive factors that can
demonstrate the existence of exceptional circumstances. Tyrer, 456 F.3d at 751.
The only claim to survive the Defendants’ motions to dismiss is the Section 1983 claim
against the Forest Preserve District as the Court dismissed the remaining counts. See supra
Sections I-IV. The state court litigation that the District Defendants claims is parallel pertains to
the foreclosure and does not contain Cannon’s Section 1983 claim. (Dkt. No. 18, Ex. B.) The
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state court litigation therefore will not dispose of all the claims remaining in this federal case and
the cases are not parallel; hence, abstention is inappropriate. See Adkins, 644 F.3d at 499.
CONCLUSION
For the reasons stated therein, the Court grants the H&K Defendants’ motion to dismiss
all claims against them. (Dkt. No. 16.) The Court also grants the District Defendants’ motion to
dismiss all claims against White and Counts II, III, and IV against the Forest Preserve District.
(Dkt. No. 18.) The Court denies the District Defendants’ motion to dismiss Count I against the
Forest Preserve District. (Dkt. No. 19.)
________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: 2/12/2016
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