Shea v. Winnebago County Sherriff's Office et al

Filing 151

ORDER ; WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 9/10/2014: For the reasons stated below, defendants' motions to dismiss 105 , 106 , 123 , 128 , are granted. The Koehler defendants' motion to dismiss 138 is gra nted in part and denied in part. All of plaintiff's claims against the Koehler defendants are dismissed except for plaintiff's battery claim against Carolyn Koehler (count two). The Winnebago County defendants' motion to dismiss [123 ] is granted in its entirety. The University of Illinois College of Medicine's motion to dismiss 105 is granted. Defendant Wendy Lowery's motion to dismiss 106 isgranted. Defendant Shelli Sublett's motion to dismiss 128 is grant ed. Tammie Hutzler is alsodismissed. Carolyn Koehler is the only defendant that remains. The Magistrate Judge is to schedule an in person status hearing with plaintiff and all defense counsel including those where the claims have been dismissed. Signed by the Honorable Philip G. Reinhard on 9/10/2014:mailed notice(pg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Ronald R. Shea,
Plaintiff,
vs.
Winnebago County Sheriff’s
Office, et al.,
Defendants.

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Case No. 12-CV-50201

Judge Philip G. Reinhard

ORDER
For the reasons stated below, defendants’ motions to dismiss [105], [106], [123], [128],
are granted. The Koehler defendants’ motion to dismiss [138] is granted in part and denied in
part. All of plaintiff’s claims against the Koehler defendants are dismissed except for plaintiff’s
battery claim against Carolyn Koehler (count two). The Winnebago County defendants’ motion
to dismiss [123] is granted in its entirety. The University of Illinois College of Medicine’s
motion to dismiss [105] is granted. Defendant Wendy Lowery’s motion to dismiss [106] is
granted. Defendant Shelli Sublett’s motion to dismiss [128] is granted. Tammie Hutzler is also
dismissed. Carolyn Koehler is the only defendant that remains. The Magistrate Judge is to
schedule an in person status hearing with plaintiff and all defense counsel including those where
the claims have been dismissed.
STATEMENT-OPINION
On May 29, 2012, pro se plaintiff Ronald Shea filed a multi-count complaint, pursuant in
part, to 42 U.S.C. § 1983, against a number of defendants. [1]. The complaint was 104 pages
long and inappropriately included extensive narrative with irrelevant legal arguments and legal
citations. See [1]. Because of this, the court, sua sponte, struck the complaint and granted
plaintiff leave to file an amended complaint that complied with Federal Rule of Civil Procedure
8(a)(2). [76].
On January 9, 2014, plaintiff sought leave to file an amended complaint and attached his
proposed amended complaint with his written motion. See [81]; [81-1]. After reviewing the
proposed amended complaint, the court found it suffered from the same deficiencies as the
original complaint and therefore issued an Order striking the first amended complaint. In the
court’s Order, it granted plaintiff one final opportunity to file a complaint that complied with the
Federal Rules of Civil Procedure. See [85].
1

On February 21, 2014, plaintiff submitted his second amended complaint. See [89]. In it,
he asserted twenty-three causes of action against eighteen defendants. The court reviewed this
complaint and determined plaintiff had cured many of the deficiencies in his prior two
complaints. See [91]. As a result, the court permitted plaintiff to proceed with the case.
Between May 12, 2014 and June 27, 2014, seventeen of the eighteen named defendants in
the second amended complaint filed five separate motions to dismiss.1 See [105], [106], [123],
[128], & [138]. While each motion raised unique arguments with respect to each set of
defendants, all defendants argued that plaintiff’s claims should be dismissed pursuant to Federal
Rules of Civil Procedure 12(b)(6). Plaintiff has responded to each of the motions and all are ripe
for the court’s review. The court notes that its analysis has been hampered by the excessive
number of claims made by plaintiff, as well as the conclusory allegations against multiple
defendants.
“To survive a motion to dismiss under Rule 12 (b)(6), the complaint must state a claim to
relief that is plausible on its face. 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.” Yeftich v. Navistar, 722 F.3d 911, 915 (7th Cir. 2013) (internal quotation
marks and citations omitted). “Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Id. (internal quotation marks and citations omitted). In cases such as these, the
inference of liability is only “speculative.” Id.
The second amended complaint purports to assert federal claims under Section 1983, the
Americans with Disabilities Act (“ADA”), and the Racketeer Influenced and Corrupt
Organizations Act (“RICO”). The remaining claims are brought under state law.
All of the claims relate to events which allegedly began in November 2011. At this time,
plaintiff states that he moved from California to Illinois to help his aging mother. After he
moved, defendants Carolyn and Doug Koehler (plaintiff’s sister and brother-in-law), allegedly
engaged in some sort of conspiracy to seize control of his parents’ estate and prevent plaintiff
from seeing his mother. Specifically, plaintiff claims that on November 26, 2011, Carolyn and
Doug Koehler entered his mother’s home, kicked in his bedroom door, and “attempted to murder
[him].” [140] at 2. He states that on the said evening there were three different attacks and the
last of which involved Carolyn Koehler “denud[ing] [p]laintiff of his blanket and pillow, [and]
abrading the cornea of his [] left eye.” Id. A few weeks after the attacks, plaintiff claims
Carolyn and Doug Koehler tried to have him arrested and evicted from his mother’s home. He
contends the Koehlers filed false charges against him and caused him to suffer physical injuries
as well as financial hardship.

1

The remaining defendant, Tammie Hutzler, filed an answer to the complaint. See [101].

2

At some point after this incident, plaintiff claims that he was wrongfully incarcerated.
While the circumstances leading up to his arrest are not explained, it is clear that plaintiff
believes he was wrongfully detained and wrongfully prosecuted. Also around this time, plaintiff
claims he received medical treatment from the University of Illinois College of Medicine.
Although the type of treatment is not specified and the exact time he received such treatment is
not clear, it seems plaintiff believes his medical treatment was inadequate and that this
inadequate treatment was somehow related to his incarceration. These allegations form the basis
of all twenty-three of plaintiff’s claims.
Counts one through fourteen of the second amended complaint are asserted solely against
Carolyn and Doug Koehler, (hereinafter “the Koehler defendants”). These claims relate to the
events which allegedly occurred in November 2011. The first thirteen counts are state law claims
for civil conspiracy, battery, assault, “intrusion into seclusion,” trespass, false imprisonment,
trespass to chattels, conversion, malicious prosecution, defamation, fraud, intentional infliction
of emotional distress, and “restitution damages.” [89] at 6-11. Count fourteen is the only federal
claim against the Koehler defendants. In count fourteen, plaintiff alleges that the Koehler
defendants are liable for violations of the civil RICO statues because they “attempted to transfer
part or all of the estate of Phyllis and Gerald Shea across state lines . . . through multiple
fraudulent reports and misrepresentations using interstate highways, interstate wire, and United
States Mail.” [89] at 11-12.
In count fifteen, plaintiff asserts a malicious prosecution claim. This claim is brought
against the Koehler defendants as well as defendant Tammie Hutzler, a senior home care
provider in Rockford, Illinois. Here, plaintiff claims the Koehler defendants directed Hutzler to
file a restraining order to prevent plaintiff from seeing his mother but this restraining order “had
no legitimate purpose under the law” and was “denied outright by the court.” [89] ¶ 46.
Counts sixteen and seventeen are asserted against Winnebago County, the Winnebago
County Sheriff’s Office, Winnebago Deputy Sheriff Douglas Dobbs, Winnebago County Sheriff
Richard Meyers, Winnebago Deputy Sheriff Lorenzo Thompson, Correctional Officer Rob
Lukowski, Correctional Officer Anthony Enna, Correctional Officer Bryan Johnson, Correctional
Captain Tim Owens, and Superintendent of the Winnebago County Jail, Andrea Tack
(hereinafter, “the Winnebago County defendants”). In count sixteen, plaintiff claims the
Winnebago County defendants are liable under Section 1983 because they “wrongfully
incarcerated [p]laintiff for over 70 hours” and denied him his right to a phone call from the
Winnebago County Jail. See [89] ¶ 48. Count sixteen also alleges the Winnebago County
defendants are liable under Section 1983 because they refused to 1) treat plaintiff for injuries he
sustained; 2) provide plaintiff warm clothing; 3) provide plaintiff medication; and 4) allow
plaintiff to file a criminal complaint against the Koehler defendants. See [89] at 12-15.
Count seventeen is an ADA claim against the Winnebago County defendants. Here,
plaintiff claims he informed the Winnebago County defendants of the physical conditions from

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which he suffered and they failed to provide him reasonable accommodations for his disabilities.
[89] at 16.
Counts sixteen and seventeen are also asserted against the University of Illinois College
of Medicine at Rockford, (“UIC”)2 , Wendy Lowery, Shelli Sublett and two Doe defendants.
While plaintiff fails to allege why these defendants are liable in counts sixteen and seventeen,
they are nonetheless named defendants.
Counts eighteen through twenty-two are asserted solely against UIC, Lowery, Sublett, and
two Doe defendants. It appears as though plaintiff alleges UIC is liable for various causes of
action because Wendy Lowery and Shelli Sublett were UIC employees and were somehow
involved in plaintiff’s inadequate medical treatment and illegal incarceration.
In count eighteen, plaintiff attempts to set forth a false imprisonment claim. He alleges
Lowery recommended that he be incarcerated and states that this recommendation was part of the
reason he was wrongfully detained. He also blames Sublett for his incarceration. He states
Sublett failed to take “appropriate actions” after an interview with plaintiff and drafted a report
that contributed to his incarceration. [89] ¶ 61.
In count nineteen, plaintiff alleges a “false light” claim against UIC, Lowery, Sublett and
a Doe defendant. Here, he claims that Lowery and Sublett “maliciously published
representations about [his] mental health” in a false light. Id. ¶ 62.
In count twenty, plaintiff alleges UIC, Sublett and a Doe defendant are liable for
negligence. Plaintiff claims that Sublett “owed a duty to accurately record her conversation with
[p]laintiff” and had a duty to take reasonable steps to confirm plaintiff’s claims and act
accordingly, but breached those duties. Id. ¶ 63.
Count twenty-one purports to allege that UIC, Sublett and two Doe defendants are liable
for battery. Plaintiff claims Sublett knew that he suffered from an auto-immune disorder and had
extreme temperature sensitivity, but she ignored his condition and maliciously exposed plaintiff’s
body to harmful temperatures while he was incarcerated. Id. ¶ 64.
Count twenty-two alleges UIC, Lowery, Sublett and two Doe defendants are liable for
intentional infliction of emotional distress. Id. ¶ 65. Plaintiff alleges that the aforementioned
defendants were “reckless, wanton, and malicious,” and caused plaintiff to suffer “emotional
trauma.” Id.

2

In its motion to dismiss, the University of Illinois College of Medicine points out that the appropriate entity
to be sued is the Board of Trustees of the University of Illinois and not the University of Illinois College of
Medicine. The court agrees. However, for the purposes of this motion, the court will refer to this defendant as UIC.

4

Plaintiff’s final claim (count twenty-three) is asserted against State’s Attorneys Joe
Bruscato and Marilyn Hite Ross. Plaintiff brings this claim under Section 1983 and alleges that
Bruscato and Ross are liable because they “wrongfully engaged in a protracted prosecution of
[p]laintiff.” Id. ¶ 66.
Plaintiff seeks monetary relief from all defendants on all counts. He asks for exemplary
and punitive damages. See [89] at 19-30.
Currently before the court are five motions to dismiss. The Koehler defendants filed a
motion seeking to dismiss counts one through fifteen. See [138]. In their motion, they argue that
plaintiff’s claims fail pursuant to Federal Rule of Civil Procedure 12(b)(6).
The Winnebago County defendants also filed a motion to dismiss. See [123]. In it, they
argue that counts sixteen and seventeen should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) and Federal Rule of Civil Procedure 8(a)(2). They also move to dismiss
count twenty-three on behalf of defendants Joe Bruscato and Marilyn Hite Ross. They argue that
count twenty-three should be dismissed pursuant to Rule 12(b)(6) and pursuant to the doctrine of
prosecutorial immunity. [123] at 5.
UIC filed its own motion to dismiss. See [105]. In its motion, UIC argues that it should
be dismissed from this suit pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
UIC contends that it is a state agency and therefore entitled to Eleventh Amendment immunity.
Shelli Sublett has also filed a motion to dismiss. See [128]. She argues that plaintiff’s
claims against her fail because they are untimely and because they fail to satisfy the federal notice
pleading standards. See [128] at 4-5.
Wendy Lowery has filed a similar motion to dismiss. See [106]. In her motion, Lowery
contends plaintiff’s claims fail because they are barred by the relevant statute of limitations and
because they fail to state a claim.
The court will address each motion in turn.
A. The Koehler Defendants’ Motion to Dismiss [138]
The Koehler defendants seek to dismiss counts one through fifteen of the second
amended complaint. See [138]. In their motion, they contend that plaintiff’s claims should be
dismissed pursuant to Rule 12(b)(6). They also argue that plaintiff’s claims are deficient because
they inappropriately group both Koehler defendants together and because plaintiff does not have
standing to raise claims regarding his parents’ estate since he does not have a beneficial interest.

5

Not surprisingly, plaintiff disagrees. He argues that his allegations are sufficient and the
Koehler’s entire motion should be denied. For the sake of clarity, the court will individually
analyze each count.
1. Count One: Civil Conspiracy
In count one, plaintiff claims Carolyn and Doug Koehler are liable for civil conspiracy.
He states that the Koehler’s “acted in concert, with malice and with the common purpose of
isolating Phyllis Shea from her son, Ronald Shea [plaintiff], in order to further their scheme [of]
wrongfully seizing and transporting some or all of the estate of Phyllis Shea and Gerald Shea
across state lines.” [89] ¶ 30. Aside from these threadbare allegations, plaintiff offers no details
to support his claim.
The Koehler defendants argue these allegations are conclusory and fail to satisfy the
federal notice pleading standards. The court agrees.
“The elements of an Illinois civil conspiracy are (1) a combination of two or more
persons, (2) for the purpose of accomplishing by some concerted action either an unlawful
purpose or a lawful purpose by unlawful means, (3) in the further of which one of the
conspirators committed an overt tortious or unlawful act.” Davidson v. Worldwide Asset
Purchasing, LLC, 914 F. Supp. 2d 918, 923-34 (N.D. Ill. 2012) (quoting Milliman v. McHenry
County, No. 11-C-50361, 2012 WL 5200092 at *3 (N.D. Ill. Oct. 22, 2012)) (citing Fritz v.
Johnson; 807 N.E.2d 461, 470 (Ill. 2004)). Courts in this Circuit have held that an actionable
conspiracy requires a plaintiff to “(1) point to evidence showing the existence of a conspiracy and
the defendants’ knowing participation in that conspiracy and (2) allege specific facts warranting
an inference that the defendant was a member of the conspiracy.” Id. (citing Hollinger Int’l v.
Hollinger Inc., No. 04-0698, 2005 WL 589000 at *14 (N.D. Ill. March 11, 2005)). Simply
characterizing a combination of acts as a conspiracy is insufficient to withstand a motion to
dismiss. Id. (citing Leman v. Turner, No. 10-2169, 2010 WL 4627656 at *3 (N.D. Ill. Nov. 5,
2010)).
Plaintiff’s allegations here merely characterize a combination of acts as a conspiracy.
Although he claims the Koehlers acted in concert to wrongfully seize his parents’ estate, plaintiff
fails to provide details or other allegations regarding an overt act which was done to further the
alleged conspiracy. In addition to this, the complaint is void of any facts which allow the court to
infer that each of the Koehlers was a knowing participant in the alleged conspiracy. As such, the
court concludes plaintiff’s civil conspiracy claim fails and count one is dismissed.
2. Count Two: Battery
In count two, plaintiff alleges the Koehler defendants are liable for battery. The basis for
his claim is the “three successive attacks” which allegedly occurred on November 26, 2011. [89]
¶ 31. Plaintiff claims Carolyn Koehler “repeatedly kicked [his] head . . .” and this caused him to
6

sustain various injuries. Id. He also claims Carolyn Koeher “denuded” him of his pillow and
blanket and this caused an abrasion to his eye. See id. Finally, he states both Koehler’s “forcibly
escorted [p]laintiff down the hallway.” [89] ¶ 32.
In Illinois, a claim for battery requires a plaintiff to allege that a defendant “(a) acts
intending to cause a harmful or offensive contact with the person . . . and (b) a harmful contact
with the person . . . directly or indirectly results.” Hadad v. World Fuel Services, Inc., No. 13-C3802, 2013 WL 6498894 at *3 (N.D. Ill. Dec. 11, 2013) (quoting Bakes v. St. Alexius Med. Ctr.,
955 N.E.2d 78, 85-86 (Ill. App. Ct. 1st Dist. 2011)). In other words, battery is defined as “the
unauthorized touching of another’s person.” Benitez v. American Standard Circuits, Inc., 675 F.
Supp. 2d 745, 767 (N.D. Ill. 2010).
While it is clear that plaintiff’s allegations regarding Carolyn Koehler “kick[ing]” him in
the head constitute offensive or harmful contact, plaintiff’s allegations concerning Douglas
Koehler do not. Indeed, in their motion to dismiss, the Koehler defendants argue that plaintiff
has failed to allege any damages were the result of Doug Koehler escorting plaintiff down the
hallway and has failed to allege that Douglas Koehler’s actions were harmful. See [141] at 8-9.
Because of this, the court dismisses Douglas Koehler from count two. Plaintiff’s battery claim
against Carolyn Koehler survives dismissal.
3. Count Three: Assault
In count three, plaintiff claims the Koehler defendants are liable for assault. He states
that on November 26, 2011, “Doug Koehler brandished his fists at [p]laintiff.” [89] ¶ 33. He
further claims that “[d]uring all three attacks, and both times he was forcibly escorted down the
hallway [he] was in imminent fear of being seriously injured or murdered by both [Koehlers].”
Id.
The Koehler defendants argue these allegations fail to state a claim for assault. First, they
point out that there are no allegations concerning Carolyn Koehler. Next, they contend that
plaintiff has failed to allege facts which indicate how Douglas Koehler’s actions caused a
reasonable apprehension. The court agrees.
In Illinois, a claim for civil assault “involves intentional conduct that places the plaintiff
in reasonable apprehension of an imminent battery.” Padilla v. Bailey, No. 09-C-8068, 2011 WL
3045991 at *8 (N.D. Ill. July 25, 2011) (citing McNeil v. Carter, 742 N.E.2d 1277 (Ill. 2001)).
See also Kijonka v. Seitzinger, 363 F.3d 645, 647 (7th Cir. 2004). To survive dismissal the claim
“must include an allegation of reasonable apprehension of imminent battery.” McNeil v. Carter,
742 N.E.2d 1277, 1281 (Ill. App. Ct. 2001).
As a preliminary matter, count three is void of any allegations with respect to Carolyn
Koehler and any action that could amount to an assault. While the court has already
acknowledged that plaintiff’s allegations against Carolyn Koehler for battery survive dismissal,
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his allegations concerning her liability for assault do not. As a result, Carolyn Koehler is
dismissed from count three.
Next, plaintiff merely states Doug Koehler is liable because he “brandished his fists at
[p]laintiff.” [89] ¶ 33. Plaintiff does not allege that Doug Koehler did this intentionally and does
not allege that Doug Koehler’s conduct caused a “reasonable apprehension” of an imminent
battery. The court is cognizant of its duty to construe all facts in the light most favorable to
plaintiff at this stage in the litigation, but here there are simply insufficient facts and a complete
lack of contextual background for the court to infer that the conduct of Doug Koehler caused a
reasonable apprehension of imminent battery. See generally Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009) (“[t]hreadbare recitals of cause of action supported by mere conclusory statements” are
insufficient to survive a motion to dismiss). As such, Douglas Koehler is dismissed from count
three and it is dismissed.
4. Count Four: Intrusion into Seclusion
In count four, plaintiff claims the Koehler defendants are liable for “intrusion into
seclusion.” [89] ¶ 34. He states that he sleeps with his door closed and has an expectation of
privacy while he sleeps. Plaintiff claims the Koehlers are liable for intrusion into seclusion
because they kicked open his locked bedroom door and entered his room while he was sleeping.
See id.
Illinois courts have held that the tort of intrusion upon seclusion requires the following
elements: “(1) an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) an intrusion
that is offensive to a reasonable person; (3) the matter upon which the intrusion occurs is private;
and (4) the intrusion causes anguish and suffering.” Acosta v. Scott Labor LLC, 377 F. Supp. 2d
647, 649-50 (N.D. Ill. 2005) (citing Johnson v. K Mart Corp., 723 N.E.2d 1192 (Ill. App. Ct.
2000)). “If a plaintiff does not allege private facts, the other three elements of the tort need not
be reached.” Id. (citing Busse v. Motorola, Inc., 813 N.E.2d 1013 (Ill. App. Ct. 2004).
“Examples of inherently “private facts” include “a person’s financial, medical, or sexual life, or a
peculiarly private fact of an intimate[,] personal nature.”” Id. (quoting Green v. Chicago Tribune
Co., 675 N.E.2d 249 (Ill. App. Ct. 1996)(Cahill J., dissenting)).
After reviewing the allegations in the second amended complaint, the court does not find
plaintiff has stated a claim. The court is aware that some Illinois courts have determined that
invading someone’s home is an example of intrusion upon seclusion. See e.g., Horgan v.
Simmons, 704 F. Supp. 2d 814, 822 (N.D. Ill. 2010) (citing Benitez v. KFC Nat’l Mgmt. Co., 714
N.E.2d 1002, 1006 (Ill. App. Ct. 1999)). However, in this case, the Koehler defendants did not
invade plaintiff’s home. Rather, Carolyn Koehler entered her mother’s home and entered the
room plaintiff was sleeping in. While her entry may have been an intrusion and may have caused
a disturbance in plaintiff’s sleep, this is not the type of intrusion required to state a claim of
intrusion upon seclusion. Furthermore, plaintiff has failed to include allegations regarding any

8

anguish or suffering that he suffered as a result of the intrusion. This is a required element to
state a claim. For these reasons, plaintiff’s claim fails. Count four is dismissed.
5. Count Five: Trespass
Next, plaintiff contends the Koehler defendants are liable for trespass. In count five, he
claims that he “established constructive possession over his bedroom [in his mother’s home and
Carolyn and Doug Koehler ] . . . interfered with [his] use and enjoyment of his bedroom.” [89] ¶
35.
The Koehler defendants argue these allegations fail to set forth a claim because plaintiff
was not on his property and was instead a guest of his mother. They further claim that plaintiff
has not identified any damages as a result of the trespass. Plaintiff contends his allegations
regarding the constructive possession of his bedroom are sufficient. The court finds the
Koehler’s argument more persuasive.
A trespass claim under Illinois law requires a plaintiff to plead “negligent or intentional
conduct by the defendant which has resulted in an intrusion on the plaintiff’s interest in exclusive
possession of land.” Village of DePue, Illinois, v. Viacom Intern., Inc., 632 F. Supp. 2d 854, 865
(C.D. Ill. 2009) (citing Porter v. Urbana-Champaign Sanitary Dist., 604 N.E.2d 393, 397 (Ill.
App. Ct. 1992)).
In the second amended complaint, plaintiff admits that he had “moved into his father’s
office at the invitation of his mother” and that he was residing at his mother’s home. [89] ¶ 35.
Thus, it is clear he did not have “exclusive possession” of his mother’s home. Additionally,
count five does include any allegations concerning damages. As such, plaintiff can state a claim
of trespass. Count five is dismissed.
6. Count Six: False Imprisonment
Count six alleges the Koehler defendants are liable for false imprisonment. Plaintiff
claims the Koehlers “intentionally and with malice, wrongfully restrained and confined” him
“when they forcibly escorted him down the hallway in their grip, and under the threat of murder.”
[89] ¶ 36. He also alleges that they “wrongfully confined [him] to his bedroom by blocking his
bedroom doorway with their bodies.” Id.
“In Illinois, the “common law tort of false imprisonment is defined as an unreasonable
restraint of an individual’s liberty, against his will, caused or procured by the defendant.””
Meadows v. Rockford Housing Authority, No. 12-C-50310, 2014 WL 1116357 at *5 (N.D. Ill.
Feb. 20, 2014) (quoting Hanna v. Marshall Field & Co., 665 N.E.2d 343 (Ill. 1996)). In count
six, plaintiff claims the Koehler defendants are liable because they forcibly escorted him down a
hallway and confined him to his bedroom. He fails to allege that either instance was against his
will. Additionally, plaintiff has failed to allege that the Koehler’s use of force was unlawful or
9

unreasonable. Because of this, the court concludes the allegations fall short of establishing a
claim for false imprisonment. Count six is dismissed.
7. Count Seven: Trespass to Chattels
Count seven of the second amended complaint purports to allege a claim for trespass to
chattels. Here, plaintiff alleges that the Koehler defendants “seized one or more of the cushions
on which [p]laintiff was sleeping and removed [the cushions] from [p]laintiff’s bedroom.” [89] ¶
37. He also states Carolyn Koehler “seized the bed clothing” and “[b]oth seizures interfered with
[p]laintiff’s lawful possession . . .” Id.
“An injury to or interference with possession, with or without physical force, constitutes
a trespass to personal property.” Sotelo v. Direct Revenue, LLC, 384 F. Supp. 2d 1219, 1229-30
(N.D. Ill. 2005). “[T]here are two ways to commit this tort: ‘A trespass to a chattel may be
committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling
with a chattel in the possession of another.’” Id. (quoting Restatement (Second) of Torts § 217).
Damages are a required element to state a valid claim for trespass to chattels. Id.; see also Najieb
v. Chrysler-Plymouth, No. 01-C-8295, 2002 WL 31906466 at *10-11 (N.D. Ill. Dec. 31, 2002).
Plaintiff fails to allege that he suffered damage as a result of the alleged interference to
his property. Instead, he only alleges that his possession was interfered with. This is insufficient.
As such, count seven is dismissed.
8. Count Eight: Conversion
In count eight, plaintiff claims the Koehler defendants are liable for conversion. He states
that they “intentionally and maliciously dissembled [his] bed and took wrongful dominion over
it, thereby depriving [him] the use and enjoyment of his property.” [89] ¶ 38.
The Koehler defendants argue this allegation is conclusory and fails to state a claim.
They also point out that plaintiff only alleged that the bed was dissembled, he did not allege it
was damaged or no longer able to be used.
To state a claim for conversion, plaintiff must allege that (1) he has a right to the
property; (2) he has an absolute and unconditional right to the immediate possession of the
property; (3) he made a demand for possession; and (4) the defendants wrongfully and without
authorization assumed control, dominion or ownership over the property. Federal Deposit
Insurance Corporation v. Hillgamyer, No. 11-CV-7502, 2013 WL 6234626 at *4 (N.D. Ill. Dec.
2, 2013) (citing Loman v. Freeman, 890 N.E.2d 446, 461 (Ill. App. Ct. 2008)). Plaintiff fails to
allege that he demanded possession of the property. He also does not allege that he had an
absolute and unconditional right to immediate possession of the property. Accordingly, the
allegations are deficient and count eight is dismissed.

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9. Count Nine: Malicious Prosecution
Count nine purports to set forth a malicious prosecution claim against the Koehler
defendants. Here, plaintiff alleges that “Carolyn Koehler intentionally and maliciously filed a
false criminal complaint against [plaintiff] and maintained charges through criminal trial.” [89] ¶
39. Plaintiff claims these charges were ultimately resolved in his favor.
In Illinois, a claim for malicious prosecution requires (1) the commencement of criminal
proceedings by the defendants; (2) the termination of those proceedings in favor of the plaintiff;
(3) the absence of probable cause for those proceedings; (4) the presence of malice; and (5)
resulting damages. Williams v. City of Chicago, 733 F.3d 749, 759 (7th Cir. 2013) (citations
omitted). The absence of any of these elements prohibits a plaintiff from pursuing the claim.
Gardunio v. Town of Cicero, 674 F. Supp. 2d 976, 986-87 (N.D. Ill. 2009) (citing Swick v.
Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)).
As a preliminary matter, the court notes that plaintiff has failed to allege that Douglas
Koehler was involved in filing any criminal proceedings against him. As such, plaintiff has not
stated a claim against Douglas Koehler and he is dismissed from count nine. Next, plaintiff fails
to allege an absence of probable cause and fails to provide allegations that the criminal
proceedings were terminated in a manner indicative of innocence. See Shkrobut v. City of
Chicago, No. 04-C-8051, 2005 WL 2787277 at *4 (N.D. Ill. Oct. 24, 2005) (dismissing a
plaintiff’s state law malicious prosecution claim because the plaintiff failed to allege “the charges
against him were withdrawn for reasons consistent with innocence.”). Consequently, the entire
claim fails and count nine is dismissed.
10. Count Ten: Defamation
In count ten, plaintiff asserts a defamation claim against the Koehler defendants. The
second amended complaint states that the Koehlers are liable for defamation because they
“published false allegations about [p]laintiff to multiple third parties.” [89] ¶ 40. Specifically,
plaintiff contends the Koehlers told others that plaintiff battered Carolyn Koehler, that he was
involved in a hit-and-run accident, and that he was stealing the keys to his mother’s home. Id.
Plaintiff claims these allegations were both false and “injurious” to his reputation. Id.
The Koehler defendants argue these allegations lack specificity and dismissal is
warranted. The court agrees.
“Defamation actions provide redress for false statements of fact that harm a plaintiff’s
reputation.” Knafel v. Chicago Sun-Times, Inc., 413 F.3d 637, 639 (7th Cir. 2005) (citing
Brennan v. Kadner, 814 N.E.2d 951 (Ill. 2004)). To establish defamation, a plaintiff must show
that the defendant made a false statement about him; that the defendant caused an unprivileged
publication of the statement to a third party; and the publication of that statement harmed him.
Id. (citation omitted). “A complaint that does not provide any context for the statement does not
11

state a plausible claim for relief, and does not give adequate notice of the claim.” Arvengix, LLC
v. Seth, No. 13-CV-1253, 2014 WL 1698374 at *6 (C.D. Ill. April 29, 2014) (citing McGreal v.
AT&T Corp., 892 F. Supp. 2d 996, 1017 (N.D. Ill. 2012)).
Here, plaintiff fails to specify when the alleged defamatory statements were made, who
made such statements (Carolyn or Douglas Koehler), and how the statements were made.
Instead, he merely states that the alleged defamatory statements were made “[b]y both written
and spoken word.” [89] ¶ 40. This does not provide sufficient context and does not give the
Koehler defendants adequate notice of the claim. Accordingly, count ten is dismissed.
11. Count Eleven: Fraud
Count eleven attempts to set forth a claim for common law fraud. Plaintiff alleges that
the Koehler defendants are liable for fraud because they filed a false report with the police and
this resulted in plaintiff’s wrongful incarceration and prosecution. He also claims that the
Koehler defendants garnered the assistance of a woman named Kelly Peters and instructed her to
report that she had been the victim of a hit-and-run accident in plaintiff’s driveway. See [89] ¶
41. He alleges that this was false and the Koehlers are therefore liable for fraud.
The Koehlers argue these allegations fail to satisfy the heightened pleading standards
required for claims of common law fraud. Plaintiff disagrees and states that the details within the
second amended complaint are sufficient.
“While liberal notice pleading under Rule 8(a) is sufficient for most complaints, Rule
9(b) imposes heightened requirements for actions in fraud.” Putzier v. Ace Hardware
Corporation, No. 13-C-2849, 2014 WL 2928236 at *3 (N.D. Ill. June 25, 2014) (citing Fed. R.
Civ. P. 9(b)). A complaint alleging fraud must state “with particularly the circumstances
constituting fraud.” Id. A plaintiff must plead the “who, what, when, where, and how: the first
paragraph of any newspaper story.” Id. (citing DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th
Cir. 1990)). This is true for fraud claims based on state law when brought in federal court. Id.
(citing Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999)). In Illinois, the
basic elements of common-law fraud are (1) a false statement of material fact; (2) the speaker's
knowledge or belief that the statement was false; (3) the speaker's intent that the statement induce
the recipient to act; (4) the recipient's belief and reliance on the statement and right to do so; and
(5) damages resulting from the reliance. Elmhurst & Dempster, LLC v. Fifth Third Bank, No. 13
C 3125, 2013 WL 5408851 at *6 (N.D. Ill. Sept. 26, 2013) (citing All Am. Roofing, Inc. v. Zurich
Am. Ins. Co., 934 N.E.2d 679, 690 (Ill. App. Ct. 2010)).
As a threshold matter, the court notes that plaintiff has failed to allege that the Koehler
defendants made any fraudulent statements to him which he relied upon. Instead, plaintiff
alleges that the Koehlers made various false statements to the “sheriff’s police,” the “Illinois
Attorney” and to“[p]laintiff’s mother.” [89] ¶ 41. These allegations do not indicate that plaintiff
relied upon any fraudulent statements and as a result, plaintiff has not stated a claim for fraud.
12

See Thompson v. Village of Monee, No. 12-C-5020, 2013 WL 3337801 at *26 (N.D. Ill. July 1,
2013) (dismissing a plaintiffs’ fraud claim because the plaintiffs failed to allege that the
defendants made false statements which they relied upon).
Next, the allegations in count eleven do not satisfy the heightened pleading standards
imposed by Rule 9(b). Plaintiff merely alleges that the Koehlers filed fraudulent reports on
certain dates and made false claims to police officers on certain dates. He does not explain
which Koehler defendant made each statement. See Tublinal v. BAC Home Loans Servicing,
L.P., No. 11-C-04104, 2012 WL 2929959 at *7 (N.D. Ill. July 18, 2012) (stating that Rule 9(b)
requires the plaintiff to identify the speaker of the alleged fraudulent statement). Therefore,
plaintiff has not sufficiently pled a claim for fraud and count eleven must be dismissed.
12. Count Twelve: Intentional Infliction of Emotional Distress
In count twelve, plaintiff alleges that the Koehler defendants are liable for intentional
infliction of emotional distress. Specifically, the second amended complaint states that “the
actions of Carolyn and Douglas Koehler were an outrage that shocks one’s conscience.” [89] ¶
43. Plaintiff claims these actions caused him “unremitting anxiety and profound emotional
distress.” Id.
A claim for intentional infliction of emotional distress requires a plaintiff to allege that
“(1) the defendants’ conduct was extreme and outrageous; (2) the defendants knew that there was
a high probability that their conduct would cause severe emotional distress; and (3) the conduct
in fact caused severe emotional distress.” Sweamigen-El v. Cook Cnt. Sheriff’s Dep’t, 602 F.3d
852, 864 (7th Cir. 2010) (citations omitted). “To meet the extreme and outrageous standard, the
defendants’ conduct ‘must be so extreme as to go beyond all possible bounds of decency, and to
be regarded as intolerable in a civilized community.’” Id. (citation omitted).
Here, plaintiff fails to specify what actions were extreme and outrageous. Furthermore,
he fails to allege that the Koehlers knew there was a high probability that their actions would
cause severe emotional distress. “Illinois courts have consistently held that the conduct alleged
must be particularly egregious; it has not been enough that the defendant has acted with an intent
which is tortious or even criminal . . .[.]” Michael v. Bell, No. 11-CV-4484, 2012 WL 3307222 at
*5 (N.D. Ill. Aug. 13, 2012) (citing Public Fin. Corp. v. Davis, 360 N.E.2d 765 (Ill. 1976)).
Plaintiff’s conclusory allegations that the Koehler defendants’ actions were an outrage to the
conscience are not sufficient. Therefore, the court dismisses count twelve. See Thompson, 2013
WL 3337801 at *23.
13. Count Thirteen: Restitution Damages
Count thirteen purports to set forth a claim for “restitution damages.” In this count,
plaintiff alleges that he has suffered “permanent neurological damage” because of the alleged
attacks that occurred in November 2011. [89] ¶ 44. He further states that he “invested
13

significant money” to try to move to Illinois and live with his mother, but this investment was
lost when the Koehlers “orchestrated the unlawful eviction of [p]laintiff from his mother’s
home[.]” Id.
The Koehler defendants argue that count thirteen must be dismissed because restitution
damages is not a recognized cause of action in Illinois. Plaintiff responds by acknowledging that
“the term is generally related to criminal restitution under Illinois law.” [140] at 10.
The court is unaware of any authority that provides restitution damages as a separate
cause of action. Thus, insofar as plaintiff intends restitution damages to constitute a distinct
cause of action in count thirteen, that claim is dismissed. See Stericycle, Inc. v. Carney, No. 12C-9130, 2013 WL 3671288 at *8 (N.D. Ill. July 12, 2013) (finding that a plaintiff’s claim seeking
restitution as a legal remedy for a breach of contract was a remedy for a breach of contract claim
and not an independent cause of action).3 As such, the court dismisses count thirteen.
14. Count Fourteen: RICO & 18 U.S.C. §§ 1961, 1962, and 1964
In count fourteen, plaintiff alleges the Koehler defendants are liable under the civil RICO
statutes because they developed a scheme in which they attempted to transfer plaintiff’s parents’
estate across state lines. He claims the Koehler defendants tried to advance their “scheme”
through “racketeering activities” including “1) threats involving murder; ii) acts or threats
involving kidnaping; iii) extortion; and iv) using their shoe or boot as an access device to gain
access to [p]laintiff’s locked bedroom.” [89] ¶ 45. Aside from these allegations, plaintiff offers
no factual support for his claim. In fact, he fails to specify what RICO statute and subsections
the Koehler defendants are liable under and instead incorrectly cites the RICO statutes as 42
U.S.C. §§ 1961, 1962, and 1964. See [89] at 11. For the purposes of this motion, the court
presumes plaintiff intended to assert claims under 18 U.S.C. §§ 1961, 1962, and 1964. Even
with that assumption though, his claim fails.
When reviewing a motion to dismiss a RICO claim, the RICO statutes must be given a
broad effect. See Starfish Inv. Corp. v. Hansen, 370 F. Supp. 2d 759, 768 (N.D. Ill. 2005) (citing
Morgan v. Bank of Waukegan, 804 F.2d 970, 974 (7th Cir. 1986)). That said, a plaintiff asserting
a RICO claim must “allege sufficient facts to support each element of [his] [] claims; it is not
enough for plaintiff to simply allege these elements in boilerplate language.” Id. (citing Cobbs v.
Sheahan, 319 F. Supp. 2d 865, 869 (N.D. Ill. 2004)). In determining whether a plaintiff has
alleged sufficient facts to support a claim, the court must examine what statute the plaintiff is
bringing a claim under and note the significant differences among the RICO statutes and even the
statutes’ subsections. Cf. 18 U.S.C. § 1962(a) and 18 U.S.C. § 1962(b); see also Starfish Inv.
Corp., 370 F. Supp. 2d at 768.

3

The court notes that dismissal of count thirteen does not bar plaintiff from seeking restitution damages for
any claims that survive dismissal.

14

In this case, plaintiff failed to indicate what subsections of the RICO statutes the Koehler
defendants are liable under. This makes the court’s task of determining whether he has stated a
claim difficult. However, the existence of an “enterprise” is an element that is fundamental to
each of the RICO statutes and their subsections. See 18 U.S.C. § 1962; Liquid Air Corp. v.
Rogers, 834 F.2d 1297, 1303-04 (7th Cir. 1987). Because of this, the court will first examine
whether plaintiff has alleged the existence of an enterprise to determine whether the RICO claim
survives dismissal.
An enterprise can be comprised of “any individual partnership, corporation, association,
or other legal entity, and any union or group of individuals associated in fact although not a legal
entity.” 18 U.S.C. § 1961(4). While it can be an informal association-in-fact, “the hallmark of
an enterprise is the structure[,] and the goals of the enterprise must be separate from the predicate
acts themselves.” Starfish Inv. Corp., 370 F. Supp. 2d. at 769 (quoting Richmond v. Nationwide
Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (internal quotation omitted)); see also Stachon v.
United Consumers Club, Inc., 229 F.3d 673, 676 (7th Cir. 2000). “To establish structure, the
plaintiff must allege that the association is “joined in purpose and organized in a manner
amenable to hierarchal or consensual decision-making.” Id. (quoting Shapo v. O’Shaughnessy,
246 F. Supp. 2d 935, 962 (N.D. Ill. 2002)). An enterprise must be more than a group of people
who get together to commit a pattern of racketeering activity. Richmond, 52 F.3d at 644. It must
be “distinct, separate, and apart from a pattern of racketeering activity.” Jennings v. Emry, 910
F.2d 1434, 1439-40 (7th Cir. 1990). In other words, an enterprise is “defined by what it is, not
what it does.” Id. at 1440. Because of this, the court should “consider whether the enterprise
would still exist were the predicate acts removed from the equation and whether the defendants'
actions were motivated by anything other than self-interest.” Starfish Inv. Corp., 370 F. Supp. 2d
at 769 (citing Okaya v. Denne Indus., No. 00-C-1203, 2000 WL 1727785 at *4 (N.D. Ill. Nov.
20, 2000)).
Here, plaintiff’s only allegations regarding the existence of an enterprise are that Carolyn
and Doug Koehler “were capable of holding a legal or beneficial interest in the estate of Gerald
and Phyllis Shea . . . [and] attempted to transfer part or all of the estate . . . through multiple
fraudulent reports . . . and advanced their program through [various] racketeering activities . .
.[.]” [89] ¶ 45. The word “enterprise” does not even appear in the second amended complaint.
Indeed, the allegations in count fourteen amount to nothing more than two people who got
together and engaged in RICO activities. See Jennings, 910 F.2d at 1440. This is insufficient to
establish an “enterprise” for RICO purposes. Even when the court gives the second amended
complaint the most liberal construction, there are simply not enough facts to infer that the
attempt to transfer part of plaintiff’s parents’ estate was the work of a RICO organization, and
not the work of two individuals seeking financial gain. As a result, plaintiff has failed to allege
the existence of an enterprise and his RICO claim must be dismissed. See id.
It is also worth mentioning that even if plaintiff had alleged the existence of an enterprise,
dismissal would still be appropriate. Plaintiff merely asserts that the Koehler defendants
“attempted” to transfer part of the estate, he does not allege that any transfer actually occurred.
15

An attempt to transfer money is not prohibited under 18 U.S.C. § 1962. As such, plaintiff’s
RICO claim fails and count fourteen is dismissed.
15. Count Fifteen: Malicious Prosecution
In count fifteen, plaintiff claims the Koehler defendants and Tammie Hutzler are liable for
malicious prosecution. He seems to allege that the Koehler defendants directed Hutzler to
“intentionally and maliciously file[] an action seeking a restraining order . . .” and this action “had
no legitimate purpose under the law.” [89] ¶ 46. He claims this action was “denied outright by the
court.” Id.
As previously noted, a malicious prosecution claim in Illinois requires (1) the commencement
of criminal proceedings by the defendants (2) the termination of those proceedings in favor of the
plaintiff; (3) the absence of probable cause for those proceedings; (4) the presence of malice; and (5)
resulting damages. Williams, 733 F.3d at 759. The absence of any of these elements prohibits a
plaintiff from pursuing the claim. Gardunio, 674 F. Supp. 2d at 986-87 (citing Swick v. Liautaud,
662 N.E.2d 1238, 1242 (Ill. 1996)).
Setting aside the fact that plaintiff has failed to provide factual allegations to support his
conclusory allegation of malice, he only alleges that the Koehler defendants are liable because they
“instigat[ed]” Tammie Hutzler to file a restraining order against him. He does not state that the
Koehler defendants commenced criminal proceedings against him. As such, the Koehler defendants
cannot be liable for malicious prosecution in count fifteen. Furthermore, the second amended
complaint is void of any allegations regarding the absence of probable cause. See [89] at 12. As a
result, count fifteen fails to state a claim and it is dismissed.4
For the reasons above, the Koehler defendants’ motion to dismiss [138] is granted in part and
denied in part. All of the claims against Douglas Koehler are dismissed. Plaintiff’s battery claim
against Carolyn Koehler (count two), is the only claim that survives dismissal.
B. The Winnebago County Defendants’ Motion to Dismiss [123]
The Winnebago County defendants have also filed a motion to dismiss. See [123]. In their
motion, they argue that counts sixteen and seventeen of the second amended complaint should be
dismissed pursuant to Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6). The Winnebago
County defendants also move to dismiss count twenty-three on behalf of States Attorneys Joe
Bruscato and Marilyn Hite Ross. They contend count twenty-three should be dismissed because
Bruscato and Ross are entitled to absolute prosecutorial immunity. See [124] at 12.

4

The court is dismissing count fifteen in its entirety. While Tammie Hutzler is a named defendant in count
fifteen and did not file a motion to dismiss, the court finds the pleadings deficient and finds dismissal appropriate.
See Moser v. Universal Eng’g Corp., 11 F.3d 720, 723 (7th Cir. 1993) (“The inherent authority of the district court
to dismiss a case sua sponte and control its docket is well established.”)

16

1. Count Sixteen: 42 U.S.C. § 1983 against the Winnebago County Defendants
In count sixteen, plaintiff claims the Winnebago County defendants are liable under 42
U.S.C. § 1983 for various conduct related to his wrongful incarceration. Specifically, plaintiff
claims the Winnebago County defendants are liable for their refusal to allow plaintiff to use the
phone, their refusal to provide plaintiff treatment for an injury, their refusal to provide him warm
clothing, and their refusal to provide him medication. Plaintiff also alleges that the Winnebago
County defendants are liable under Section 1983 for emotional abuse, spoliation of evidence and
unlawful eviction. See [89] ¶¶ 47-59.
The Winnebago County defendants argue that count sixteen must be dismissed because
plaintiff has failed to attribute specific conduct to each defendant and has otherwise failed to state
a claim. They also point out that plaintiff has inappropriately included state law claims (such as
spoliation of evidence) within his 1983 claim.
Plaintiff responds by claiming all of the Winnebago County defendants were personally
involved in all of his alleged constitutional deprivations. He also argues that his spoliation of
evidence claim is not intended to be brought under Illinois law and is instead asserted as a Due
Process claim under the Fifth and Fourteenth Amendments.
While plaintiff’s response brief clears up some of the confusing allegations in the second
amended complaint, it is well established that a plaintiff cannot cure an otherwise deficient
complaint through a response in opposition to a motion to dismiss. See Harrell v. United States, 13
F.3d 232, 236 (7th Cir. 1993) (stating that “[i]f a complaint fails to state a claim even under the
liberal requirements of the federal rules, the plaintiff cannot cure the deficiency by inserting the
missing allegations in a document that is not either a complaint or an amendment to a complaint.”);
see also Stevens v. Interactive Financial Advisors, Inc., No. 11-C-2223, 2012 WL 689265 at *5
(N.D. Ill. Mar. 2, 2012). As such, when determining whether dismissal is appropriate the court will
examine only those allegations within the second amended complaint.
To state a claim under 42 U.S.C. § 1983 a plaintiff must allege that each defendant was
personally involved in the alleged constitutional deprivation. See Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995). To be personally responsible, an official must known about the conduct and
facilitate it, approve it, condone it, or turn a blind eye. Id.
In the second amended complaint, plaintiff fails to allege which defendant was personally
responsible for which constitutional deprivation and how each defendant facilitated or condoned the
specific constitutional deprivations. See [89] ¶¶ 47-59. In fact, count sixteen does not mention what
constitutional rights plaintiff believes the Winnebago County defendants violated. Although plaintiff
argues all of the Winnebago County defendants are personally responsible for all of his alleged
constitutional deprivations, this is highly unlikely since some of the allegations within count sixteen
involve requests plaintiff made in jail, (see [89] ¶ 52), while others include his attempts to file a
criminal complaint at the Winnebago County Justice Center. See [89] ¶ 55. The Winnebago County
17

defendants include jail personnel as well as Winnebago County Sheriff’s officers. Thus, it is simply
not possible that all of the Winnebago County defendants were personally involved in all of the
alleged constitutional violations in count sixteen. Accordingly, plaintiff has not adequately alleged
personal involvement and his Section 1983 claim must be dismissed.
The court also notes that if plaintiff intended count sixteen to constitute a Monell claim under
Section 1983, the claim also fails. To hold a municipality liable under Section 1983, a plaintiff must
allege “(1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread
practice, that, although unauthorized, is so permanent and well-settled that it constitutes a ‘custom
or usage’ with the force of law; or (3) an allegation that a person with final policymaking authority
caused the injury.” Liska v. Dart, No. 13-C-1991, 2014 WL 3704635 at *9 (N.D. Ill. July 23, 2014)
(citing Chortek v. City of Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004)). “A plaintiff alleging a
widespread practice must plead facts that show that there is true municipal policy at issue, not a
random event.” Id. at *10 (citing Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)).
Plaintiff here fails to allege a widespread practice or custom. Instead, he merely describes
his personal experiences in the Winnebago County jail and claims he was wrongfully incarcerated.
These allegations are insufficient to support a Monell claim. See id.; see also Falk v. Perez, 973 F.
Supp. 2d 850, 863-64 (N.D. Ill. 2013) (dismissing a Monell claim because the plaintiff only alleged
a single incident.).
Similarly, if plaintiff intended to pursue a Monell claim under the third prong (the final
policymaking authority prong), his claim also fails. The second amended complaint does not allege
that any of the Winnebago County defendants were a final policymaker that caused plaintiff’s
constitutional injuries. Instead, the complaint is riddled with conclusory allegations that leave
defendants and the court speculating as to what it is plaintiff is trying to claim. Pleadings of this
nature do not satisfy the federal pleading standards under Federal Rule of Civil Procedure 8(a)(2)
as Rule 8(a)(2) requires that a complaint “give [a] defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” See Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted). The allegations in count sixteen fail to give the Winnebago County defendants (and any
other named defendants) notice of the grounds upon which plaintiff seeks relief. As such, count
sixteen is dismissed.
2. Count Seventeen: ADA claim against the Winnebago County Defendants
In count seventeen plaintiff alleges that the Winnebago County defendants are liable under
the ADA (42 U.S.C. §§ 12101-12103 and 12181-12189). See [89] ¶ 60. While unclear, it seems
plaintiff is claiming that he informed various Winnebago County defendants of his disabilities when
he was incarcerated, but all of the Winnebago County defendants refused to provide him reasonable
accommodations.
The Winnebago County defendants contend Seventh Circuit precedent supports dismissal
of this claim. They argue that prisons are not required to provide prisoners special accommodations
18

under the ADA and further state that plaintiff has failed to attribute any specific conduct to any of
the named defendants. Although plaintiff responds and attempts to rebut their arguments, his
arguments are disjointed and unpersuasive. See [133] at 13-14.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits or the services, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132. For the purpose of the ADA, “discrimination” includes “not making reasonable
accommodations to the services, programs, or activities of a public entity . . . [.]” 42 U.S.C. §
12112(b)(5)(A). To state a claim, a plaintiff must allege that (1) he is a qualified individual with a
disability; (2) he was either excluded from participating in, or denied the benefits of, a public entity’s
services, programs or activities or was otherwise discriminated against; and (3) that such exclusion,
denial or benefits, or discrimination was because of his disability. See 42 U.S.C. § 12132; see also
Wells v. Bureau County, 723 F. Supp. 2d 1061, 1087 (C.D. Ill. 2010).
The court acknowledges that the ADA applies to inmates of the Illinois Department of
Corrections. See Johnson v. Randle, 451 Fed. Appx. 597, 599-600 (7th Cir. 2011). Thus, to the
extent the Winnebago County defendants are arguing dismissal is appropriate because the ADA does
not apply to the Illinois prisons, the court rejects that argument. However, dismissal of count
seventeen is appropriate for other reasons.
Even when the court assumes plaintiff suffered from at least one qualified disability under
the ADA and the Winnebago County defendants failed to provide him accommodations for his
disability, plaintiff has not provided enough factual detail to support a claim. See Ashcroft v. Iqbal,
556 U.S. 678 (2009). While he has alleged that he suffers from a litany of disabilities, he fails to
identify the specific accommodation he requested, and fails to specify how each of the Winnebago
County defendants refused to provide him his requested accommodation. Because of this, the court
finds the allegations deficient under Rule 8(a)(2) and dismisses count seventeen. See Riley v.
Vilsack, 665 F. Supp. 2d 994, 1007-08 (W.D. Wis. 2009) (dismissing a plaintiff’s failure to
accommodate claim because the plaintiff failed to provide “factual context for defendants’ alleged
failure to accommodate” and failed to “identify the accommodation he needed.”).
3. Count Twenty-Three: 42 U.S.C. § 1983 against Defendants Bruscato and Ross
The Winnebago County defendants have also moved to dismiss count twenty-three. In count
twenty-three plaintiff alleges that States Attorneys Joe Bruscato and Marilyn Hite Ross are liable
under Section 1983 because they “wrongfully engaged in a protracted prosecution of [p]laintiff . .
. [.]” [89] ¶ 67. He contends that both Bruscato and Ross had knowledge that the charges against
him were “false and malicious,” but proceeded with the prosecution anyway. Id. In their motion to
dismiss, the Winnebago County defendants argue count twenty-three should be dismissed because
Bruscato and Ross are entitled to absolute prosecutorial immunity.

19

Plaintiff responds that absolute immunity is not appropriate because the second amended
complaint alleges that Bruscato and Ross were performing investigative functions, and not
prosecutorial functions. The court disagrees.
The United States Supreme Court has held prosecutors acting in furtherance of their
prosecutorial duties are entitled to absolute immunity. See Rehberg v. Paulk, 132 S. Ct. 1497, 150304 (2012). However, prosecutors acting under the color of state law in an investigatory role are only
entitled to qualified immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 270-71 (1993). To
determine whether a prosecutor is acting within the scope of his her/her prosecutorial duties, the
court examines “whether the prosecutor is, at the time, acting as an officer of the court” as well as
how much his/her actions relate to the judicial phase of the criminal process. Fields v. Wharrie, 672
F.3d 505, 510 (7th Cir. 2012). The Seventh Circuit has held that prosecutorial immunity “extends
beyond an individual prosecutor’s decision to indict or try a case.” Id. (citing Van de Kamp v.
Goldstein, 555 U.S. 335, 344-48 (2009).
While plaintiff contends his Section 1983 claim against Brucasto and Ross involves their role
as investigators and not prosecutors, the second amended complaint states otherwise. The complaint
states Brucasto and Ross are liable because they “wrongfully engaged in a protracted prosecution of
[p]laintiff . . .” despite the fact that they knew the “charges against [him] were false and malicious.”
[89] ¶ 67. These allegations relate to Brucasto’s and Ross’ role as officers of the court, not their role
as investigators. Moreover, the phrase “protracted prosecution” is undoubtedly related to the judicial
phase of the criminal process, not the investigatory phase. Id. Therefore, the court concludes
plaintiff’s claim against Brucasto and Ross relates to their role as prosecutors and finds the two
defendants are entitled to absolute prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409,
430-31 (1976) (stating “[p]rosecutors are absolutely immune from suits for monetary damages under
§ 1983 for conduct that is “intimately associated with the judicial phase of the criminal process.”).
As such, count twenty-three is dismissed.
The Winnebago County defendants’ motion to dismiss [123] is granted in its entirety. The
Winnebago County defendants are dismissed from the suit. Defendants Joe Brucasto and Marilyn
Hite Ross are also dismissed.
C. UIC’s Motion to Dismiss [105]
Counts sixteen through twenty-two are asserted against UIC. In its motion to dismiss, UIC
claims it should be dismissed from the entire suit because of Eleventh Amendment immunity.
Alternatively, UIC argues that dismissal is appropriate because plaintiff’s claims are barred by the
statute of limitations and because plaintiff fails to allege sufficient facts to form plausible claims.
Plaintiff responds that Section 1983 and the ADA abrogate sovereign immunity. He also disputes
UIC’s statute of limitations argument and contends that the allegations in the second amended
complaint are sufficient to survive dismissal.

20

The Eleventh Amendment bars actions in federal court against a state or state agency. See
Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010).
There are three exceptions to Eleventh Amendment immunity: “(1) where Congress, acting under
its constitutional authority conveyed by amendments passed after the Eleventh Amendment (the most
common being the Fourteenth Amendment), abrogates a state’s immunity from suit; (2) where the
state itself consents to being sued in federal court; and (3) under the doctrine articulated by the
Supreme Court in Ex parte Young . . . [.]” Council 31 of the Am. Fed’n of State, Cnty., & Mun.
Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012) (citations omitted).
Here, plaintiff brings claims against UIC under Section 1983, the ADA, and various state
laws. UIC is an agency of the State of Illinois and is therefore treated the same as the State for the
purposes of the Eleventh Amendment. Kroll v. Bd. of Trs. of Univ. Of Ill., 934 F.2d 904, 907 (7th
Cir. 1991).
As a preliminary matter, the court notes that it has already determined that counts sixteen and
seventeen (plaintiff’s federal claims under Section 1983 and the ADA) should be dismissed pursuant
to Federal Rule of Civil Procedure 8(a)(2). See supra. As such, the court declines to address the
applicability of Eleventh Amendment immunity with respect to those claims.5 Therefore, the court
turns to plaintiff’s state law claims against UIC, (counts eighteen through twenty-two) and examines
the applicability of Eleventh Amendment immunity with respect to those claims.
UIC contends it is immune from liability for all of plaintiff’s claims. Plaintiff argues that
Title II of the ADA abrogates Eleventh Amendment immunity, but fails to form a cognizable
argument regarding whether UIC is entitled to immunity in counts eighteen through twenty-two.
Instead, he references the “State Lawsuit Immunity Act” and contends that this is not applicable
because of the Supremacy Clause of the United States Constitution. See [113] at 5. This argument
lacks merit.6
5

The court acknowledges that while UIC would undoubtedly be entitled to immunity for plaintiff’s Section
1983 claim, (see Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005)), the issue of
sovereign immunity under Title II of the ADA is not as clear. In United States v. Georgia, the United State Supreme
Court held that Title II of the ADA abrogates state sovereign immunity at least for those claims that independently
violate the Constitution. United States v. Georgia, 546 U.S. 151, 159 (2006). However, the Supreme Court “left
open the question whether the ADA could validly abrogate sovereign immunity for non-constitutional violations.”
Morris v. Kingston, 368 F. App’x 686, 689 (7th Cir. 2010). Indeed, the Court “counseled against jumping to the
Eleventh Amendment immunity analysis if the case [could] be decided on grounds that Title II was not violated in
the first place.” Maxwell v. South Bend Work Release Center, No. 3:09-CV-008-PPS, 2011 WL 4688825 at *4,
(N.D. Ind. Oct. 3, 2011). Because in this case, the court has already determined that plaintiff’s conclusory
allegations in count seventeen fail to satisfy the federal pleading standards, the court will not address whether UIC
would be entitled to Eleventh Amendment immunity under plaintiff’s ADA claim.
6

The Illinois State Lawsuit Immunity Act, 745 Ill. Comp. Stat. 5/1, provides that the State of Illinois is
immune from suit in any court, except as provided in the Illinois Court of Claims Act, 705 Ill. Comp. State. 505/8.
The Illinois Court of Claims Act vests jurisdiction over state tort claims against the Board of Trustees of the
University of Illinois in the Illinois Court of Claims. See 705 Ill. Comp. Stat. 505/8(d). These state immunity rules
apply to plaintiff’s state law claims in federal court. See Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001)

21

The Eleventh Amendment forbids courts from exercising subject matter jurisdiction over
claims against a state agency for monetary damages. See Indiana Protection and Advocacy Services
v. Indiana Family and Social Services Administration, 603 F.3d 365, 370 (7th Cir. 2010). The
United States Supreme Court “has consistently held that an unconsenting State is immune from suits
brought in federal courts by her own citizens as well as by citizens of another State.” Id. (citing
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)).
UIC is a state agency and it has not consented to the instant suit. See Kroll, 934 F.2d at 909
(stating the Board of Trustees of the University of Illinois is a state agency). Counts eighteen
through twenty-two seek monetary damages. See [89] at 28-30. Based on these facts, the court
concludes it lacks subject matter jurisdiction over all the state law claims against UIC and UIC is
entitled to Eleventh Amendment immunity.
Accordingly, UIC’s motion to dismiss [105] is granted. UIC is dismissed from the suit.
D. Shelli Sublett’s Motion to Dismiss [128]
Shelli Sublett has filed her own motion to dismiss. See [128]. In her motion, Sublett argues
that plaintiff’s claims against her fail because they are untimely. Alternatively, she contends
plaintiff’s claims fail under Rule 12(b)(6).
Sublett contends the claims against her are untimely because they relate to events which
occurred in 2011 and she was not named as a defendant until April 14, 2014. Plaintiff responds that
Sublett was included in his first complaint as a “Doe defendant” and after he discovered her identity
through Rule 26(a)(1) disclosures, he specifically named her in the second amended complaint.
Because the court finds that all of plaintiff’s claims fail under Rule 12(b)(6), the court
declines to address the statute of limitations issue. Instead, the court will briefly explain why the
counts eighteen through twenty-two fail as a matter of law.7
1.) Count Eighteen: False Imprisonment
In count eighteen, plaintiff alleges that Sublett, Lowery, UIC, and a doe Defendant are liable
for false imprisonment. Plaintiff claims Sublett drafted a report and failed to take appropriate actions
after she interviewed plaintiff and her “reckless and intentional” actions “contributed” to plaintiff’s
wrongful incarceration. See [89] ¶ 61. Sublett contends these allegations fail to state a false
imprisonment claim. The court agrees.

(citations omitted). Thus, this court lacks jurisdiction over any state law claims asserted against UIC.
7

Sublett was also a named defendant in counts sixteen and seventeen. However, the court has already
determined those counts fail under Rule 8 (a)(2). See supra. As such, the court will only examine whether counts
eighteen through twenty-two survive dismissal.

22

In Illinois, a claim for false imprisonment requires a plaintiff to allege that he was “restrained
or arrested by the defendant[s], and that the defendant[s] acted without having reasonable grounds
to believe that an offense was committed by the plaintiff.” S.J. v. Perspectives Charter School, 685
F. Supp. 2d 847, 861 (N.D. Ill. 2010) (citations omitted).
Here, plaintiff does not allege that Sublett restrained or arrested him. Instead, he claims that
Sublett is liable because she “contributed to [his] wrongful incarceration.” [89] ¶ 61. In Illinois,
when a plaintiff seeks to hold a private party liable for false imprisonment because the private party
provided information to police, the plaintiff must allege that the defendant was the “sole source” of
information or allege that the defendant actually “commanded[ed], request[ed], or direct[ed]”
authorities to arrest plaintiff. Carey v. K-Way, Inc., 728 N.E.2d 743, 747-48 (Ill. App. Ct. Mar. 31,
2000) (citations omitted).
Plaintiff does not make such allegations. The second amended complaint does not state that
Sublett was the “sole source” of information and does not allege that Sublett requested or
commanded that plaintiff be arrested. Because of this, the court does not find plaintiff has stated a
false imprisonment claim against Sublett. See Olinger v. Doe, 163 F. Supp. 2d 988, 991 (N.D. Ill.
2001) (stating that Illinois precedent seems to indicate that if the “defendant is not the sole source
[of information], an actual request or command [to arrest] is necessary.”). As such, Sublett is
dismissed from count eighteen.
2. Count Nineteen: False Light
In count nineteen, plaintiff attempts to assert a claim for “false light.” He alleges that Lowery
and Sublett, “independently and intentionally, and maliciously published representations about [his]
mental health . . . in a false light.” [89] ¶ 62. Sublett argues that plaintiff’s conclusory allegations
fail to set forth a plausible claim.
“Illinois law recognizes a claim for false light invasion of privacy.” Kole v. Village of
Norridge, 941 F. Supp. 2d 933, 964 (N.D. Ill. 2013). This claim has three elements. First, the
plaintiff must allege he “was placed in a false light before the public.” Id. Next, he must allege that
the “false light in which [he] was placed would be highly offensive to a reasonable person.” Id.
Finally, a plaintiff must claim that “the defendant acted with malice, meaning with knowledge, that
the statements were false or with reckless disregard.” Id. (citations omitted).
Here, plaintiff only alleges that Lowery and Sublett published false representations about his
mental health in a false light and they did so “maliciously.” [89] ¶ 62. He does not indicate what the
actual representations were nor does he state where such representations were published. Moreover,
plaintiff fails to mention whether such publications would be highly offensive to a reasonable person.
Thus, even when the court gives these allegations the most liberal construction, there are insufficient
facts to infer whether a reasonable person would find the alleged representations highly offensive.
As such, the court concludes plaintiff’s conclusory allegations fail to state a claim and fail to satisfy
the federal pleading standards. Count nineteen is dismissed.
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3. Count Twenty: Negligence
Count twenty purports to assert a claim against Sublett for negligence. Plaintiff alleges that
Sublett “owed a duty to accurately record her conversation with [p]laintiff, to take reasonable steps
to confirm the claims of [p]laintiff, and to take appropriate actions in view of the disclosures of that
conversation.” [89] ¶ 63. Plaintiff claims Sublett breached these duties and this resulted in damages.
Aside from these allegations, plaintiff fails to offer any factual detail to support his claim.
First, these allegations are deficient under Federal Rule of Civil Procedure 8(a)(2), and the
court could dismiss the claim on this basis alone. However, it is worth mentioning that this claim
also fails because plaintiff has failed to provide a physician’s certificate of merit supporting his
claim. See Rusinowski v. Village of Hillside, 835 F. Supp. 2d 641, 652 (N.D. Ill. 2011) (stating “[a]
physician’s certificate of merit is required to file a medical negligence claim under Illinois law, even
in federal court.”) (citations omitted). Accordingly, count twenty must be dismissed.
4. Count Twenty-One: Battery
Count twenty-one is a state law claim for battery. Plaintiff alleges that Sublett is liable for
battery because she had “actual notice” of plaintiff’s auto-immune disorder and had the power to
provide plaintiff warm clothes but did not and instead “knowingly, intentionally, and with malice,
exposed [p]laintiff’s body to harmful and offensive temperatures throughout [p]laintiff’s
incarceration.” [89] ¶ 64.
Sublett argues these allegations do not state a claim for civil or medical battery because
plaintiff has not alleged that Sublett touched plaintiff in any manner or performed any medical
procedure on him. Plaintiff responds merely by stating that he disagrees with Sublett’s assertions
and asks the court to make a determination. See [134] at 13.
As previously mentioned, Illinois defines a civil battery as “the unauthorized touching of
another that offends a reasonable sense of personal dignity.” Chelios v. Heavener, 520 F.3d 678,
692-93 (7th Cir. 2008) (citations omitted). Plaintiff has not alleged that Sublett touched him without
his consent. Thus, he has not set forth a civil battery claim against Sublett.
To the extent plaintiff intended count twenty-one to constitute a medical battery claim, it also
fails. In Illinois, a claim of medical battery requires that “there was no consent to the medical
treatment performed, that the treatment was against [plaintiff’s] will, or that the treatment
substantially varied from the consent granted.” Pantaleo v. Hayes, No. 08-C-6419, 2013 WL
5311450 at * 18 (N.D. Ill. Sept. 20, 2013) (citing In re Estate of Allen, 848 N.E.2d 202, 210 (Ill.
2006)). The second amended complaint does not allege that Sublett performed a medical procedure
on plaintiff. Therefore, count twenty-one also fails to state a claim for medical battery.
Accordingly, plaintiff has failed to assert a battery claim against Sublett and count twenty-one
is dismissed.
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5. Count Twenty-Two: Intentional Infliction of Emotional Distress
In count twenty-two, plaintiff claims Sublett and Lowery and two Doe defendants are liable
for intentional infliction of emotional distress. He alleges that “[d]efendants were reckless, wanton
and malicious and were an outrage that shocks the conscience.” [89] ¶ 65. He states that he has
“suffered profound and lasting emotional trauma as a result.” Id. Aside from these boilerplate
allegations, plaintiff offers no factual detail to support his claim. He does not specify what conduct
from Sublett or Lowery or any of the Doe defendants was extreme and outrageous and fails to allege
that any of the defendants knew such conduct was outrageous. These allegations fall short of
satisfying the federal pleading standards. Therefore, count twenty-two is dismissed. See
Perspectives Charter School, 685 F. Supp. 2d at 860 (dismissing a plaintiff’s claim for intentional
infliction of emotional distress because the “[c]omplaint fail[ed] to allege any specific facts that
would show the various elements of an IIED cause of action[.]”).
For these reasons, Sherri Sublett’s motion to dismiss [128] is granted. Sublett is dismissed
from the case.
E. Wendy Lowery’s Motion to Dismiss [106]
Wendy Lowery is a licensed nurse who allegedly provided plaintiff medical treatment at
some point in 2011. The second amended complaint alleges Lowery is liable under counts sixteen
through nineteen and count twenty-two. See [89] at 13-18. Lowery has filed her own motion to
dismiss and argues that she should be dismissed from the case because plaintiff’s claims against her
are barred by the relevant statute of limitations. See [106]. Alternatively, Lowery contends
plaintiff’s claims should be dismissed pursuant to Federal Rules of Civil Procedure 8(a)(2) and
12(b)(6).
The court has already dismissed counts sixteen and seventeen (plaintiff’s Section 1983 and
ADA claims) because plaintiff failed to allege personal involvement. See supra. Additionally, the
court dismissed plaintiff’s false light claim (count nineteen) because the second amended complaint
did not provide enough factual detail to support a claim. See supra. The same is true with respect
to plaintiff’s intentional infliction of emotional distress claim (count twenty-two). As such, the only
claim the court must address with respect to Lowery is count eighteen, plaintiff’s false imprisonment
claim.
In count eighteen, plaintiff alleges Lowery is liable because she “recommended that
[p]laintiff . . . be incarcerated, and that based, at least in part, on her recommendation, [he] was
incarcerated for over seventy hours.” [89] ¶ 61. As the court previously noted, a plaintiff can sue
a private party for false imprisonment if the party was the “sole source” of information the police
relied upon to arrest the plaintiff. See Olinger, 163 F. Supp. 2d at 991. Additionally, there is a line
of cases in Illinois which have found that a defendant maybe liable for false imprisonment even if
he or she is not the arresting officer’s sole source of information “if the defendant goes beyond

25

“providing information” and actually requests the arrest.” Id. (quoting Schmidt v. City of Lockport,
67 F. Supp. 2d 938, 946 (N.D. Ill. 1999)).
Here, plaintiff has not alleged that Lowery was the sole source of information police used to
effectuate plaintiff’s arrest and has not alleged that Lowery directed or commanded police to
incarcerate plaintiff. Instead, he only alleges that Lowery recommended that he be incarcerated and
that this recommendation was part of the reason he was incarcerated. He fails to explain how or why
her recommendation would cause authorities to arrest and incarcerate him. These threadbare
allegations do not satisfy the pleading standards of Rule 8(a)(2) and do not form a plausible false
imprisonment claim against Lowery. Accordingly, count eighteen is dismissed.
Based on the above, defendant Wendy Lowery’s motion to dismiss [106] is granted. Lowery
is dismissed from the case.
For all these reasons, defendants’ motions to dismiss [105], [106], [123], [128], are granted.
The Koehler defendants’ motion to dismiss [138] is granted in part and denied in part. All of
plaintiff’s claims against the Koehler defendants are dismissed except for plaintiff’s battery claim
against Carolyn Koehler (count two). The Winnebago County defendants’ motion to dismiss [123]
is granted in its entirety. The University of Illinois College of Medicine’s motion to dismiss [105]
is granted. Defendant Wendy Lowery’s motion to dismiss [106] is granted. Defendant Shelli
Sublett’s motion to dismiss [128] is granted. Tammie Hutzler is also dismissed. Carolyn Koehler
is the only defendant that remains. The Magistrate Judge is to schedule an in person status hearing
with plaintiff and all defense counsel including those where the claims have been dismissed.
Date: 9/10/2014

ENTER:

United States District Court Judge

Notices mailed by Judicial Staff.
(LC)
Copy to Magistrate Judge Johnston

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