Ayot v. City Of Naperville
MEMORANDUM Opinion and Order. Written by the Honorable Gary Feinerman on 7/12/2017.(lcw, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CITY OF NAPERVILLE,
16 C 10083
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
James Ayot brought this pro se suit against the City of Naperville, alleging that its police
department’s treatment of him while handling domestic violence allegations against him violated
his civil rights in various respects. Doc. 17. He has since papered the docket with a dizzying
array of baseless and/or procedurally improper motions—some to amend his complaint, some
seeking sanctions against defense counsel, some seeking judgment, and various others. Docs.
18, 21, 24, 31, 34, 36, 38, 39, 45, 47, 51, 54, 59, 63, 67, 73, 80, 83-85, 94, 97, 101, 108, 112,
114, 118, 124. The vast majority were frivolous and have already been denied. Docs. 20, 23, 29,
33, 41, 42, 50, 53, 61, 62, 65, 70, 75, 82, 86, 96, 99, 103, 111, 117, 122, 126. A request to
amend the complaint remains pending. Docs. 76, 78.
The City, for its part, has moved to dismiss the suit under Federal Rule of Civil Procedure
12(b)(6) on the ground that it is barred by the Illinois “one refiling rule.” Doc. 43. It has also
moved for sanctions against Ayot. Doc. 87. The City’s motion to dismiss is granted, Ayot’s
motion for leave to amend is denied, and the City’s motion for sanctions is denied as moot in
part and denied in part.
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Ayot’s brief opposing dismissal, so long as those additional facts “are consistent with the
pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013); see also
Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (holding that a federal court
deciding a motion to dismiss may take judicial notice of publicly filed state court records). The
facts are set forth as favorably to Ayot as those materials allow. See Pierce v. Zoetis, 818 F.3d
274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not
vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382,
384 (7th Cir. 2010).
Over a period of several months beginning in late 2015, Ayot had a series of dealings
with the City and its police force, all stemming from an ongoing dispute between him and his
then-girlfriend, Sharlene Rice. Doc. 17. Ayot’s encounters with the police left him feeling
aggrieved in various respects. Ibid. Between October 17 and October 19, 2015, the police
locked up Ayot on suspicion of domestic violence, denied him medical care for several hours
despite injuries (allegedly caused by Rice) that eventually required an emergency room visit, and
secured a warrant for his arrest based on dubious information. Id. at 1-3 ¶¶ 1(a)-2(e). In the
months that followed, during a period spanning roughly November 2015 to January 2016, the
City refused to help him retrieve personal belongings—including important prescription
medication—from Rice’s residence, in violation of a court order requiring them to do so; sought
a second warrant against him despite his having an airtight alibi at the time of the alleged
offense; refused to take action against Rice for making demonstrably false allegations of online
harassment against him; manufactured evidence and falsely accused him of unlawful ex parte
communication with a judge; and re-arrested him several times. Id. at 3-7 ¶¶ 3(a)-5(c).
On May 26, 2016, in the Circuit Court of DuPage County, Ayot sued the Naperville
Police Department for “misconduct/negligence and selective enforcement” in Ayot v. Naperville
Police, No. 16 L 483 (Cir. Ct. DuPage Cnty., Ill.) (“Case 16 L 483”). Doc. 43-1. The complaint
in that suit describes the events of October 17-18, 2015, as well as a series of events spanning
from October 27 through December of that year, all of which involved the City (1) giving too
much credence to allegations made by Rice against Ayot and too little to allegations made by
Ayot against Rice and (2) failing to assist Ayot in retrieving his belongings from Rice. Ibid.
On June 8, 2016, in a separate suit in the DuPage County court that was originally
brought by Rice against Ayot, Rice v. Ayot, No. 16 L 454 (Cir. Ct. DuPage Cnty.) (“Case 16 L
454”), Ayot, having received leave to file a counterclaim, Doc. 43-2, docketed a third-party
complaint (mislabeled a “counterclaim,” see 735 ILCS 5/2-608) against “Naperville Police” for
“misconduct/negligence and selective enforcement.” Doc. 43-3. The third-party complaint was
essentially identical to Ayot’s complaint in Case 16 L 483, other than increasing the amount of
damages sought from $1,121,172 to $4,000,000.
Just over a week later, on June 16, 2016, Ayot voluntarily dismissed Case 16 L 483.
Doc. 43-4. The same day, in Case 16 L 454, the state court struck Ayot’s claims against the
City. Doc. 43-5.
Next, on June 27, 2016, Ayot filed suit in the Circuit Court of Cook County, Ayot v.
Naperville Police, No. 16 L 6329 (Cir. Ct. Cook Cnty., Ill.), alleging “negligence police
misconduct.” Doc. 43-6. The complaint described the events of October 17, 2015—the alleged
denial of medical care that Ayot also alleged in Case 16 L 483 and Case 16 L 454. Doc. 43-6.
On August 11, 2016, Ayot sought leave to file an amended complaint. Doc. 43-7. His request to
do so, styled as a “Motion to include selective enforcement and violation of proper police
procedures,” again described various interactions with the Naperville Police that took between
October 17, 2015, and January 20, 2016—all similar or identical to those identified in Cases 16
L 483 and 16 L 454. Doc. 43-7 at 1-2.
Meanwhile, the City sought and obtained a transfer of the Cook County case to DuPage
County, where it was docketed as Case 16 L 883 (Cir. Cit. DuPage Cnty.) on September 12,
2016. Doc. 43-8. Three more attempts to amend the complaint followed, on September 19,
September 27, and October 18. All three proposed amended complaints concerned Ayot’s
interactions with the Naperville police during the same time period—beginning October 17,
2015, and ending in December 2015 or January 2016—and made essentially the same factual
allegations as in the previous two suits. Docs. 43-9, 43-10, 66-5. Each of the proposed
amendments was denied without prejudice for failure to follow proper procedures. Docs. 66-6 at
2-3, 66-8 at 1-2, 66-10.
On October 27, 2016, Ayot filed this suit in federal court. Doc. 1. Like its predecessors
in state court, Ayot’s federal complaint began with the alleged denial of medical care he suffered
while in custody on October 17, 2015. Doc. 12 at 4. It also described—in less detail than in the
state court cases—the events of October 18 and 19 and later incidents in which Naperville police
falsely suspected him of crimes and ignored evidence that would have exonerated him. Ibid.
On January 6, 2017, Ayot filed an amended complaint in this case, which is the operative
complaint. Doc. 17. It is strikingly similar to the complaints he filed in Case 16 L 483 and Case
16 L 454, as well as to the complaint and the proposed amended complaints in Case 16 L 883. In
broad strokes, the amended complaint here asserts that: (1) Ayot was denied medical care
following his arrest on October 17, 2015, id. at 1-2; (2) on October 18 and 19, 2015, Naperville
police failed to properly investigate charges against him and obtained an arrest warrant based on
that shoddy investigation, id. at 2-3; (3) sometime on or after October 20, 2015, the Naperville
police refused to help him retrieve important belongings from Rice’s house, despite a court order
requiring them to do so, id. at 3-4; (4) on November 16, 2015, a Naperville police officer
obtained another warrant for his arrest, based on an accusation that Ayot committed a crime that
he could not have committed because he was incarcerated at the time, id. at 4; (5) in early
December 2015, Naperville police obtained a warrant for his arrest based on demonstrably fake
online threats he had supposedly made against Rice, and later arrested him pursuant to that
warrant in January 2016, id. at 4-6; and (6) in November 2015, Naperville police officers
manufactured evidence against him and made false representations to a judge about him, id. at 67. In other words, it alleges that between October 2015 and January 2016, various Naperville
police officers mishandled domestic violence allegations against Ayot and mistreated him in
related interactions that he had with them, just like the previous state court complaints did.
On June 12, 2017, Ayot filed a new federal suit, which was assigned to Judge Tharp.
Ayot v. DuPage County, 17 C 4401 (N.D. Ill.) (“Case 17 C 4401”). It alleges that DuPage
County is committing libel against him by misrepresenting his criminal history on its website.
Doc. 1 (Case 17 C 4401).
The City’s motion to dismiss contends that this federal suit is barred by Illinois’s “onerefiling rule.” Doc. 43 at 5-8. Under Illinois law, “a plaintiff who voluntarily dismisses a suit
‘may commence a new action within one year or within the remaining period of limitation,
whichever is greater.’” Carr v. Tillery, 591 F.3d 909, 914 (7th Cir. 2010) (quoting 735 ILCS
5/13-217). But plaintiffs are limited to one second bite at the apple, and no more; “[t]he Illinois
courts interpret [Section 13-217] to mean that a plaintiff who voluntarily dismisses a lawsuit may
commence only one new action.” Ibid. (collecting cases); see also Timberlake v. Illini Hosp.,
676 N.E.2d 634, 636 (Ill. 1997) (“This court has interpreted section 13-217 as permitting only
one refiling even in a case where the applicable statute of limitations has not yet expired.”). This
one-refiling rule applies in federal court “because it is a rule of preclusion, like res judicata; and
a federal court is required to give full faith and credit to records of (including judgments in) state
judicial proceedings.” Carr, 591 F.3d at 914 (internal quotation marks omitted).
Ayot voluntarily dismissed his first state court suit, Case 16 L 483. Doc. 43-4 (“I hereby
dismiss this Court action. James Ayot 6/16/16”). So the questions here are: (1) whether the
claims he brought in Case 16 L 454 or Case 16 L 883 count as Ayot’s one “refiling” of Case 16
L 483 for the purposes of Section 13-217; and (2) if so, whether this suit likewise is a refiling of
Case 16 L 483, which would mean it is barred by the one-refiling rule.
“[T]he basis on which the Illinois courts decide whether a suit is a refiling is whether, had
its predecessor been dismissed with prejudice, it would be barred by principles of res judicata.”
Carr, 591 F.3d at 915; see also D’Last Corp. v. Ugent, 681 N.E.2d 12, 16 (Ill. App. 1997) (“For
purposes of section 13-217, a complaint is said to be a refiling of a previously filed complaint if
it contains the same cause of action as defined by res judicata principles.”). “Res judicata bars
not only issues that were actually raised in the prior proceeding, but also issues which could have
been raised in the prior proceeding.” Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir.
2007) (emphasis added); see also Wilson v. Edward Hosp., 981 N.E.2d 971, 975 (Ill. 2012);
Smith Tr. & Sav. Bank v. Young, 727 N.E.2d 1042, 1045 (Ill. App. 2000). In Illinois, res
judicata applies if, as relevant here, “there is an identity of cause of action, and … there is an
identity of parties or their privies.” River Park, Inc. v. City of Highland Park, 703 N.E.2d 883,
889 (Ill. 1998); see also Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723, 727-28 (7th Cir.
2014). Here, the parties to each of Ayot’s complaints are essentially the same: Ayot on one side
and the City of Naperville and/or its police department on the other, with the City defending each
suit. See Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 822-23 (7th Cir. 2006) (“Res judicata bars
subsequent suits against those who were not party to a prior suit if their interests are closely
related to those who were.”) (collecting cases); Licari v. City of Chicago, 298 F.3d 664, 667 (7th
Cir. 2002) (“We have recognized that under Illinois law a government and its officers are in
privity for purposes of res judicata.”); Dempsey v. City of Harrisburg, 279 N.E.2d 55, 57 (Ill.
App. 1971) (holding that the City of Harrisburg and the trustees of its police pension fund were
the same party for res judicata purposes because “[t]he city is a municipal corporation and must
necessarily conduct its affairs through many different officers, agencies, and employees” and so
was “[t]he real party in interest in both” proceedings); Bonds v. City of Chicago, 2017 WL
698680, at *6 (N.D. Ill. Feb. 22, 2017) (“Identity of the party defendant is not defeated by [the
plaintiff’s] mistake of naming the ‘Chicago Police Department’ [instead of ‘the City of
Chicago’] in her state court action … .”). So the only issue is whether there is “an identity of
cause of action” among the complaints.
To resolve that question, Illinois courts apply a “transactional test,” under which
“separate claims will be considered the same cause of action for purposes of res judicata if they
arise from a single group of operative facts, regardless of whether they assert different theories of
relief.” River Park, 703 N.E.2d at 893; see also Huon v. Johnson & Bell, Ltd., 757 F.3d 556,
558-59 (7th Cir. 2014). “Illinois does not require the same evidence or an identical theory of
relief.” Cooney v. Rossiter, 986 N.E.2d 618, 622 (Ill. 2012). Rather, what constitutes a “single
group of operative facts” is “determined pragmatically, giving weight to such considerations as
whether the facts are related in time, space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations
or business understanding or usage.” River Park, 703 N.E.2d at 893 (internal quotation marks
omitted); see also Garcia v. Vill. of Mt. Prospect, 360 F.3d 630, 637-39 (7th Cir. 2004).
Returning to the first question set forth above, Ayot’s third-party complaint in Case 16 L
454 perhaps could count as his one refiling of Case 16 L 483. There is no question that the thirdparty complaint raises the exact same claims as Case 16 L 483—the parties and allegations in
both complaints are identical. And neither the fact that Ayot styled his claims in Case 16 L 454
as “counterclaims” (rather than initiating a new lawsuit), nor the fact that he attempted to assert
his claims in Case 16 L 454 before his voluntary dismissal of Case 16 L 483, prevents Case 16 L
454 from serving as his one permitted refiling. See Carr, 591 F.3d at 914-15 (“[The plaintiff]
argues that the [one-refiling] rule applies only when the first refiled suit is dismissed before the
second one is filed; otherwise the second refiled suit isn’t really ‘new.’ That is not correct … .
The new action is the action filed later; the date on which the previous action was dismissed is
irrelevant.”) (citing Schrager v. Grossman, 752 N.E.2d 1, 5-6 (Ill. App. 2000)); id. at 915
(treating a counterclaim as the first filing of the claims at issue); Fourth St. Villas, LLC v. United
Cent. Bank, 2016 WL 7108064, at *3-4 (Ill. App. Dec. 5, 2016) (holding that the one-refiling
rule applies to counterclaims); United Cent. Bank v. Wells St. Apartments, LLC, 957 F. Supp. 2d
978, 985 (E.D. Wis. 2013) (applying the Illinois one-refiling rule to a counterclaim and rejecting
the argument that it was not barred because it was filed before the voluntary dismissal of the
predecessor suit). But the City does not ask the court to treat Ayot’s claims in Case 16 L 454 as
a refiling of Case 16 L 483, Doc. 66 at 9, and there is no need to reach that question.
That is because Case 16 L 883 is a refiling of Case 16 L 483, even if Case 16 L 454 is
not. Ayot argues that Case 16 L 883 is different from Case 16 L 483 because it seeks to raise
only the denial of medical care on October 17, 2015, and not the remainder of his claims from
the earlier suit. Docs. 47, 56. But even though the initial (and apparently still operative)
complaint in Case 16 L 883 is limited to the events of October 17, Ayot has consistently treated
those allegations as part of a continuing course of related conduct spanning October 2015 to
January 2016—meaning that its “treatment as a unit [with those other events] conforms to the
parties’ expectations.” River Park, 703 N.E.2d at 893. Indeed, Ayot’s multiple proposed
amended complaints in Case 16 L 883 all seek to raise his full panoply of grievances. Moreover,
Ayot’s various other complaints all make clear that the subsequent conduct in which the
Naperville police engaged was “related in … origin[ and] motivation,” ibid., to the events of
October 17—all of the alleged conduct arises out of the same domestic dispute between Ayot
and Rice, and is allegedly motivated by the City’s bias against Ayot (or at least indifference
towards his rights) and/or its favoritism toward Rice. See Chicago Title Land Tr. Co. v. Potash
Corp. of Saskatchewan Sales, 664 F.3d 1075, 1081 (7th Cir. 2011) (“[T]he principle that res
judicata prohibits a party from later seeking relief on the basis of issues which might have been
raised in the prior action also prevents a litigant from splitting a single cause of action into more
than one proceeding.”); Huon v. Johnson & Bell, Ltd., 2013 WL 1984414, at *6 (N.D. Ill. May
13, 2013) (holding that two cases were the same cause of action for res judicata purposes, even
though the facts relevant to one were only a subset of the facts relevant to the other, because
neither the parties nor the court found “any Illinois authority that would allow [the plaintiff] to
split his claims because the federal claims had a broader time period and additional unfavorable
treatment than the state court claims”); Restatement (Second) of Judgments § 24, comment d
(1982) (“When a defendant is accused of … acts which though occurring over a period of time
were substantially of the same sort and similarly motivated, fairness to the defendant as well as
the public convenience may require that they be dealt with in the same action.”).
As to the second question set forth above, this suit, like Case 16 L 883, is a refiling of
Case 16 L 483, and so must be dismissed under the one refiling rule. It concerns the same course
of conduct by the City spanning the same time period. Its specific allegations are largely
identical or only slightly recast, and identify several of the same of officers as specific offenders.
Compare Doc. 17 (naming officers “Rettinmeyer,” Curran, Mannino, Nance, and Negley), with
Doc. 43-3 (naming officers “Retinmeyer,” Curran, Mannino, and Pope). It is plain that this is the
same suit, rehashed with only minor variation for the third—or perhaps fourth—time. For that
reason, Ayot’s prior filing in Case 16 L 883, his one permitted refiling of Case 16 L 483,
compels dismissal of this action under the one-refiling rule.
There remains the matter of Ayot’s pending motion for leave to amend. Much of the
proposed amended complaint, Doc. 78, simply adds detail to claims or events already described
in the operative complaint. E.g., id. at 1 (adding to Ayot’s allegations concerning the events of
October 17, 2015, the additional detail that the charges on which he was arrested were later
determined to be “unfounded”); id. at 3 (adding the allegation that, when Ayot was discharged
from the hospital where he was taken following the City’s alleged denial of medical care to him
in lockup, the police lost his aftercare instructions on the way back to the jail and then failed to
accommodate dietary restrictions set forth in those instructions). These amendment requests are
denied because they are futile—the relevant claims are already being dismissed with prejudice
under the one-refiling rule, and tinkering with their particulars would not save them under the
transactional test described above.
The amended complaint also seeks to add an allegation that “Naperville police and
Dupage Sao [State’s Attorney’s Office]” have libeled Ayot by misrepresenting his criminal
history on the DuPage County Sherriff’s website —inaccurately reporting that domestic violence
charges against him that were resolved via nolle prosequi remain “open and active.” Doc. 78 at
4, 11. Those allegations are different from the others—they were not previously raised in the
state cases, address a later time period than the prior allegations (the charges that Ayot complains
about were nolle prosequi’ed between January and July 2016, id. at 4), and concern misconduct
that allegedly remains ongoing. So that claim may fall outside the scope of the one-refiling rule.
Nevertheless, leave to add this claim is denied. If Ayot’s libel claim is not barred by the onerefiling rule, then it is a distinct case or controversy that is best litigated independently. Indeed,
the libel claim is the very claim that Ayot has filed separately in Case 17 C 4401, and the denial
of leave to add that claim in this case is without prejudice to his pursuing it in the other case.
There is no reason to allow a duplicative allegation to proceed here, especially now that it would
be Ayot’s sole remaining claim. See Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.
1993) (“As a general rule, a federal suit may be dismissed for reasons of wise judicial
administration whenever it is duplicative of a parallel action already pending in another federal
court.”) (internal quotation marks omitted).
Finally, there is the City’s motion for sanctions, which catalogs a host of assertedly
vexatious behavior by Ayot—including various frivolous motions he filed and an unwarranted
referral of defense counsel to the Attorney Registration and Disciplinary Commission—and asks
the court to sanction him for that conduct. Doc. 87. The primary sanction the motion seeks is
dismissal of Ayot’s claims. Id. at ¶¶ 43, 46. Because, as just discussed, the City’s meritorious
motion to dismiss is sufficient basis for dismissal, the City is already entitled to that relief, and
that request is moot.
The only other relief sought is an award of fees against Ayot—$1,500 to compensate the
City for the time its attorneys spent dealing with Ayot’s frivolous filings and moving for
sanctions against him. Id. at ¶¶ 43-45. That request is denied. This suit, though barred, appears
to have been filed in good faith; given the course of Ayot’s prior litigation in state court, it was
not objectively unreasonable for him to fail to realize that the one-refiling rule would apply. So
even assuming Ayot’s conduct during this litigation is sanctionable—a question the court need
not, and so does not, reach—the dismissal of this suit with prejudice ought to put Ayot on
sufficient notice that his multiplicitous approach to litigation is not serving him well, and that he
must measure twice and file once (if at all) in his other cases.
For the foregoing reasons, the City’s motion to dismiss is granted with prejudice; Ayot’s
motion for leave to amend is denied; and the City’s motion for sanctions is denied as moot in
part and denied in part.
July 12, 2017
United States District Judge
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