Towne v. Donnelly et al

Filing 64

MEMORANDUM Opinion and Order: The Court grants defendants' motions to dismiss plaintiff's constitutional claims with prejudice and declines to exercise supplemental jurisdiction over plaintiff's state law claims 43 , 44 , 49 . Plaintiff's state law claims are dismissed without prejudice so that they may be pursued in a state court. Civil case terminated. Signed by the Honorable Sharon Johnson Coleman on 7/16/2021. Mailed notice.(ym, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIAN TOWNE,
Plaintiff,
v.
KAREN DONNELLY, GEORGE MUELLER,
BRIAN VESCOGNI, MATTHEW KIDDER,
DAVID GUALANDRI, JEREMIAH ADAMS,
SCOTT CRUZ, RANDY BAXTER, CITY of
OTTAWA, ILLINOIS, and COUNTY of
LASALLE, ILLINOIS,
Defendants.

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Case No. 20 cv 4097
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Brian Towne has brought an amended complaint against defendants alleging
violations of the First Amendment, Fourth Amendment, and Fourteenth Amendment, along with a
failure to intervene and a conspiracy claim based on these constitutional violations. See 28 U.S.C. §
1331; 42 U.S.C. § 1983. Towne also brings supplemental state law claims of malicious prosecution,
intentional infliction of emotional distress, indemnification, and conspiracy under Illinois law. See 28
U.S.C. § 1367(a). Before the Court are defendants’ motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the following reasons, the Court grants in part with prejudice and
grants in part without prejudice defendants’ motions to dismiss. Because the Court is dismissing
Towne’s constitutional claims with prejudice, the Court, in its discretion, declines to exercise
jurisdiction over Towne’s state law claims. See 28 U.S.C. § 1367(c)(3).
Background
In both 2008 and 2012, Towne was elected State’s Attorney for LaSalle County, Illinois. In
2012, while defendant Karen Donnelly was attending law school, she was employed by the LaSalle
County State’s Attorney’s Office (“SAO”). Also, in 2012, Donnelly’s son was indicted by the

LaSalle County SAO for criminal offenses, entered a guilty plea, and was sentenced to four years in
prison. Towne alleges that while Donnelly was working as a clerk in the SAO, she attempted to
improperly access information regarding her son’s prosecution.
After Donnelly completed law school in 2014, she applied for and was denied an entry-level
position with the LaSalle SAO. In the fall of 2015, Donnelly began her campaign for State’s
Attorney for the 2016 election opposing Towne. Assistant State’s Attorney (“ASA”) George
Mueller helped Donnelly with her campaign. Donnelly won the election and was sworn in as
LaSalle County’s State’s Attorney on December 1, 2016.
On March 22, 2017, Donnelly, Mueller, ASA Brian Vescogni, and ASA Matthew Kidder had
a meeting with defendant David Gualandri, a City of Ottawa police officer. During that meeting,
Donnelly explained that the SAO was conducting an investigation into Towne’s alleged misconduct
while he was the State’s Attorney and requested that Gualandri continue this investigation. Towne
alleges that he and Gualandri previously had a conflict when Towne declined to charge an individual
Gualandri wanted charged.
Donnelly investigated Towne’s conduct with the assistance of Mueller, Vescogni, Kidder,
Gualandri, ASA Jeremiah Adams, Scott Cruz, an Ottawa police officer, and Randy Baxter, a LaSalle
County investigator. During the investigation, Gualandri, Cruz, and Baxter interviewed witnesses,
but did not document or disclose that these interviews occurred. Donnelly and Kidder were each
present for at least one of these witness interviews. Towne also contends defendants interviewed a
SAO employee, who was fired after the employee gave a favorable statement about Towne.
According to Towne, the investigation did not uncover any criminal acts. Nevertheless,
Gualandri proceeded to include false statements in his report and omit other materials, such as
witness statements. Towne asserts the other defendants knew of these false statements and omitted
materials. He further alleges that Donnelly, Mueller, Vescogni, Kidder, and Adams were involved in
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the investigation by providing guidance to the investigating officer and participating in witness
interrogations prior to the presentation to the grand jury. In September 2017, defendants presented
the case against Towne to a LaSalle County grand jury. Towne contends that Donnelly, Mueller,
and Kidder made misstatements to the grand jury in order to obtain the indictment.
In September 2017, Towne surrendered when he was informed of the indictment against
him and was immediately released on a $50,000 personal recognizance bond. In October 2017,
defendants presented the case to the grand jury for amended indictments. Meanwhile, during the
criminal proceedings, Towne moved for the appointment of a special prosecutor, which the state
court granted on November 28, 2017. Greg McClintock was then appointed as special prosecutor
on February 14, 2018. Donnelly and Mueller appealed the special prosecutor appointment, which
the Illinois Appellate Court denied in March 2019. The Illinois Supreme Court denied Donnelly’s
petition for leave to appeal in June 2019.
In the interim, Towne filed a speedy trial demand. On August 2, 2019, the trial court
granted Towne’s motion and dismissed all charges against Towne. Towne asserts that after the case
was dismissed, Donnelly continued to make statements to the media about him and accused special
prosecutor McClintock of having improper motives.
Construing Towne’s allegations as true, the Court is disheartened by the alleged misconduct
on behalf of former LaSalle State’s Attorney Donnelly and other LaSalle County and Ottawa public
officials and employees. The Court notes that both Donnelly and Gualandri are defendants in other
pending lawsuits in this district regarding similar claims of misconduct.
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 L.Ed.2d
233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual
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allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion to dismiss,
plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible when the
plaintiff alleges “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, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009). “[A] motion to dismiss based on failure to comply with the statute of
limitations should be granted only where the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense.” Vergara v. City of Chicago, 939 F.3d 882, 886 (7th Cir.
2019) (citation omitted).
Discussion
First Amendment Claim
In Count I, Towne brings a First Amendment retaliation claim alleging that his criminal
prosecution was motivated by political activity, namely, his running for LaSalle County State’s
Attorney in the 2016 election. Defendants argue that this claim is untimely under the two-year
limitations period. “A § 1983 claim borrows the statute of limitations for analogous personal-injury
claims in the forum state; in Illinois that period is two years.” Lewis v. City of Chicago, 914 F.3d 472,
478 (7th Cir. 2019). “Although courts look to state law for the length of the limitations period, the
time at which a § 1983 claim accrues ‘is a question of federal law,’ ‘conforming in general to
common-law tort principles.’” McDonough v. Smith, 139 S.Ct. 2149, 2155 (2019) (citation omitted).
At issue is when Towne’s First Amendment political retaliation claim accrued. Looking to
federal law, “the statute of limitations clock begins to run on First Amendment retaliation claims
immediately after the retaliatory act occurred.” Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016).
In his amended complaint, Towne alleges that he was charged via grand jury indictments in
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September 2017, and Towne brought this lawsuit in July 2020. Thus, Towne’s First Amendment
retaliation claim is untimely under the two-year limitations period.
Towne nonetheless argues that the Supreme Court’s decision in McDonough is controlling and
that his First Amendment claim did not accrue until his criminal charges were dismissed in August
2019. In McDonough, the Supreme Court analyzed the accrual for a Fourteenth Amendment due
process claim based on fabricated evidence. Analogizing such claims to the tort of malicious
prosecution, the Supreme Court concluded that Fourteenth Amendment due process claims based
on fabricated evidence do not accrue until a favorable determination of the underlying prosecution.
Id. at 2156.
Towne’s First Amendment claim is not analogous to a malicious prosecution claim because
these claims are “fundamentally different causes of action.” See Gekas, 814 F.3d at 894. To explain,
“it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of
action, that is, when the plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388
(2007). Under this standard, a First Amendment claim accrues when the retaliatory action occurred,
namely, when Towne was charged with criminal offenses, because Towne “knew or should have
known” that defendants’ actions violated his First Amendment rights. Gekas, 814 F.3d at 894. On
the other hand, a malicious prosecution claim is not “complete” while the criminal proceedings are
ongoing. McDonough, 139 S.Ct. at 2158. As such, the Court grants defendants’ motion to dismiss
Count I as untimely with prejudice because McDonough does not control the limitations inquiry.
Fourth Amendment Claim
In Count II, Towne brings a Fourth Amendment wrongful pretrial detention claim alleging
that the criminal indictments against him were not supported by probable cause. Defendants argue
that Towne’s Fourth Amendment claim is untimely under the two-year limitations period. Again, at
issue is when Towne’s Fourth Amendment claim accrued.
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Under established Seventh Circuit law, “a claim for unlawful pretrial detention accrues when
the detention ceases.” Mitchell v. City of Elgin, 912 F.3d 1012, 1015 (7th Cir. 2019). More specifically,
“[b]ecause the wrong is the detention rather than the existence of criminal charges, the period of
limitations also should depend on the dates of the detention.” Manuel v. City of Joliet, Ill., 903 F.3d
667, 670 (7th Cir. 2018). As the Seventh Circuit recently held, the Supreme Court’s decision in
McDonough does not change this conclusion. Smith v. City of Chicago, ___F.4th ___, 2021 WL
2643004, at *1 (7th Cir. June 28, 2021). Relevant to this case, the Seventh Circuit concluded in Smith
that standard bond restrictions, including that a detainee must seek permission to travel, do not
amount to a Fourth Amendment seizure. Id. at *8.
Towne was released on bond in September 2017, and he filed this lawsuit in July 2020;
therefore, his Fourth Amendment claim is untimely. The Court grants defendants’ motions to
dismiss Count II of the amended complaint with prejudice.
Fourteenth Amendment Due Process Claim
Next, in Count III, Towne brings a Fourteenth Amendment procedural due process claim
based on defendants fabricating evidence, intimidating exculpatory witnesses, and concealing
exculpatory evidence in an effort to prosecute him. The defendants do not argue that Towne’s due
process claim is untimely. Instead, they argue that because Towne was released on a $50,000
personal recognizance bond, he was not denied a liberty interest as required to bring his due process
claims.
To address defendants’ arguments, the Court must first untangle Towne’s several due
process claims. Turning to the fabrication of evidence allegations, “[t]he essence of a dueprocess evidence-fabrication claim is that the accused was convicted and imprisoned based on
knowingly falsified evidence, violating his right to a fair trial and thus depriving him of liberty
without due process.” Patrick v. City of Chicago, 974 F.3d 824, 835 (7th Cir. 2020). Prior to the
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Supreme Court’s 2019 decision in McDonough, the Seventh Circuit has held that “a plaintiff who had
been released on bond following his arrest and who was later acquitted at trial could not maintain a
due process claim for fabrication of evidence” because “the plaintiff must have suffered a
deprivation of liberty.” Cairel v. Alderden, 821 F.3d 823, 831 (7th Cir. 2016).
Towne argues that McDonough changes this Seventh Circuit precedent. In particular, Towne
asserts that the facts underlying the fabricated evidence claim in McDonough are similar to his,
namely, that the prosecutor secured an indictment using fabricated evidence, the plaintiff was
released on bond, and plaintiff was later acquitted. In McDonough, however, the Supreme Court
stated “[w]e assume without deciding that the Second Circuit’s articulations of the right at issue and
its contours are sound, having not granted certiorari to resolve those separate questions.” Id. at
2155. The Supreme Court further explained that “as the case comes to this Court, it is undisputed
that McDonough has pleaded a liberty deprivation.” McDonough, 139 S.Ct. 2156 n.4.
Accordingly, the McDonough decision does not change Seventh Circuit precedent in this
regard because the McDonough Court did not address what constitutes a liberty deprivation under the
circumstances. Thus, Towne must still plausibly allege a liberty deprivation resulted from the
fabrication of evidence. In his amended complaint, Towne alleges that when he was released on
bond “his freedom of movement was limited” and that the conditions of his bond “restricted his
liberty in a way that would not have existed absent the criminal indictments.” Towne, however, has
failed to provide any legal authority supporting his allegations that his freedom of movement or his
bond restrictions amount to the deprivation of a liberty to support his due process claim. In the
end, Towne’s fabrication of evidence claim is foreclosed because he was released on bond and the
conditions of his bond did not amount to a deprivation of a liberty interest as articulated in Cairel.
Id. at 831 (“Plaintiffs were quickly released on bond following their arrests. Of course, they were
never actually tried, but this, if anything, reduces any burden plaintiffs may have faced”).
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Next, Towne’s due process allegations concerning defendants concealing exculpatory
evidence fall under the Brady doctrine. To prevail on a claim for the violation of the due process
disclosure duty under Brady, “a plaintiff must demonstrate that the evidence in question was
favorable to him, the police ‘suppressed’ the favorable evidence, and prejudice ensued because the
suppressed evidence was material.” Anderson v. City of Rockford, 932 F.3d 494, 504 (7th Cir. 2019). In
general, Brady is not triggered when an “individual is merely charged with a crime, but never fully
prosecuted.” Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011); see also Garcia v. City of
Chicago, 24 F.3d 966, 971 (7th Cir. 1994) (Brady violation did not occur when a prosecutor moved
for nolle prosequi). Equally important, a Brady claim cannot stand without the deprivation of liberty.
See Cairel, 821 F.3d at 833. Again, Towne’s failure to allege a deprivation of a liberty interest
forecloses his Brady claim.
Towne further contends that he is bringing a substantive due process clause claim. “To
allege a viable substantive due process claim, [Towne] would need to allege conduct under color of
state law that ‘violated a fundamental right or liberty’ and was so ‘arbitrary and irrational’ as to
‘shock the conscience.” Nelson v. City of Chicago, 992 F.3d 599, 604 (7th Cir. 2021) (citation omitted).
“Substantive due process protects only ‘those fundamental rights and liberties which are, objectively,
‘deeply rooted in this Nation’s history and tradition,’ and must be subject to ‘careful description.’”
Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). Here, Towne has failed to allege
a violation of a liberty interest, and has not pointed to a fundamental right that defendants violated.
Therefore, Towne’s substantive due process claim fails. The Court grants defendants’ motions to
dismiss Count III with prejudice.
Failure to Intervene and Conspiracy Claims
In Counts IV and V, Towne alleges that defendants failed to intervene to prevent the
deprivation of his constitutional rights and that defendants engaged in a conspiracy to deprive him
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of his constitutional rights. Because Towne has failed to timely and plausibly allege any
constitutional deprivations, his failure to intervene claim necessarily fails. See Turner v. City of
Champaign, 979 F.3d 563, 571 (7th Cir. 2020). Likewise, the “absence of any underlying violation of
Plaintiff’s rights precludes the possibility of Plaintiff succeeding on a conspiracy claim.” Sow v.
Fortville Police Dep’t, 636 F.3d 293, 305 (7th Cir. 2011); see also Smith v. Gomez, 550 F.3d 613, 617 (7th
Cir. 2008) (“conspiracy is not an independent basis of liability in § 1983 actions”). The Court grants
defendants’ motions to dismiss Counts IV and V of the amended complaint with prejudice.
State Law Claims
Because the Court is granting defendants’ motions to dismiss Towne’s constitutional claims
with prejudice – over which the Court has original subject matter jurisdiction – the Court, in its
discretion, declines to exercise its supplemental jurisdiction over Towne’s state law claims of
malicious prosecution, intentional infliction of emotional distress, indemnification, and conspiracy
under Illinois law pursuant to 28 U.S.C. § 1367(c)(3). See Black Bear Sports Group, Inc. v. Amateur
Hockey Association of Illinois, Inc., 962 F.3d 968, 972 (7th Cir. 2020) (“Because the federal claim fails,
any state-law claims belong in state court.”); Rivera v. Allstate Ins. Co., 913 F.3d 603, 618 (7th Cir.
2018) (“there is a general presumption that the court will relinquish supplemental jurisdiction and
dismiss the state-law claims without prejudice.”). The Court dismisses Counts VI through IX
without prejudice. Towne may refile these claims in state court.
Conclusion
For the foregoing reasons, the Court grants defendants’ motions to dismiss plaintiff’s
constitutional claims with prejudice and declines to exercise supplemental jurisdiction over plaintiff’s
state law claims [43, 44, 49]. Plaintiff’s state law claims are dismissed without prejudice so that they
may be pursued in a state court. Civil case terminated.

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IT IS SO ORDERED.
Date: 7/16/2021
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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