Marsden v. Kishwaukee Community College et al
MEMORANDUM Opinion and Order; The Court grants in part and denies in part Defendants' motion to dismiss 51 . Marsden has until 12/3/2021 to file an amended complaint. Regardless of whether an amended complaint is filed, Defendants are ordered t o file an answer, along with any affirmative defenses, by 12/20/2021; thereafter, they can file a motion for judgment on the pleadings as to any claims they think should be dismissed. Additionally, all parties are to discuss with Magistrate Judge Jensen whether a settlement conference would be useful at this time. See attached for details. Signed by the Honorable Iain D. Johnston on 11/17/2021: (yxp, )
Case: 3:19-cv-50334 Document #: 70 Filed: 11/17/21 Page 1 of 33 PageID #:602
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 3:19-cv-50334
Honorable Iain D. Johnston
Kishwaukee Community College,
Laurie Borowicz, Cindy McCluskey,
and Dave Dammon,
MEMORANDUM OPINION AND ORDER
Plaintiff Sarah Marsden (“Marsden”) was a faculty counselor at Kishwaukee
Community College (“the College” or “College”) for six years. Because she believed
that the College’s administration was wasting taxpayer dollars, she allegedly spoke
out at Union meetings, spoke privately with union leadership, and filed at least one
Freedom of Information Act (“FOIA”) request, in which she attempted to gain
information from the College related to its financial expenditures. After allegedly
being forced to resign and accept a lesser role, Marsden filed this action alleging
First Amendment retaliation, defamation, false light invasion of privacy, infliction
of emotional distress, and negligent infliction of emotional distress against the
College, College President Laurie Borowicz, College Executive Director of Human
Resources Cindy McCluskey, and College President Borowicz’s Assistant Dave
Dammon (collectively “the Defendants”). Dkt. 49, ¶¶ 5-8.
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On February 3, 2021, this Court dismissed Marsden’s amended complaint
because she failed to properly allege the protected speech that she engaged in. Dkt.
48. After Marsden filed her Second Amended Complaint, the Defendants filed this
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons
explained below, the Court grants the motion in part and denies the motion in part.
Marsden worked at the College as a faculty counselor from June 2013 until
June 25, 2019. 1 Dkt. 49, ¶ 9. Starting in January 2018, she began speaking out
about what she saw as wasteful spending on the part of the College’s
administration. Id. ¶ 10. In February 2018, she met with the Union’s President and
Negotiator inside his campus office and expressed her concerns regarding potential
corruption by the College administration staff, including President Borowicz.
Marsden told the Union President that he should stand up to Borowicz and protect
taxpayer dollars and the reputation of the College. Id. ¶ 11(a).
That same day, Marsden filed a FOIA request in which she asked for copies
of all employee survey comments in 2011, 2013, and 2017. The request was later
denied. 2 Id. ¶ 11(b). Later that month, Marsden expressed her concerns at an oncampus Union meeting. Defendant Dave Dammon, President Borowicz’s assistant,
attended that meeting, as did other faculty. Id. ¶ 11(c). At the meeting, Marsden
expressed her concerns about misuse of public funding in relation to “unnecessary
and expensive renovation and landscaping at the College.” Id.
All of the factual allegations are taken from the Second Amended Complaint. Dkt. 49.
Marsden also filed an affidavit supporting the Union’s appeal of this denial. Id. ¶ 11(g).
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On July 18, 2018, Marsden met with the Union President and two other
Union members and expressed her belief that the College had improperly withheld
financial and survey records despite her requests for that information. Id. ¶ 11(d).
Six days later, Marsden again met with the Union President and other Union
members to express her concerns about the College’s use of taxpayer funds “to
remodel the President’s Office Suite and Gaming Room and [for] an additional
$232,459.00 in painting expenditures.” Id. ¶ 11(e).
On August 21, 2018, Marsden again raised her concerns at a Union meeting
attended by Dammon and other faculty members. This time, her concerns focused
on a $40,000 emergency landscaping expenditure that was approved by the Board, a
College Wine Walk event, and a horticultural flowerbed fundraising event. 3 Id. ¶
11(f). Around that time, there was also an anonymous FOIA request to the College.
Marsden alleges that the College believed she had submitted the request, that the
FOIA request upset the College administration, and that the Defendants believed
Marsden might disclose any information to the College’s Board of Directors, state
officials, or the public. Id. ¶ 14. As a result, Marsden alleges that the Defendants
then subjected her to “a pattern of retaliation and harassment” that included
placing her on a “target list.” Id. ¶ 17.
Marsden also alleges that at other faculty and administration meetings, she spoke up
about alleged discrimination against a disabled professor, though she does not state what
that discrimination was other than that the professor worked ten-hour days and operated a
scooter to get around campus. Dkt. 49, ¶ 11(g). Her concern appeared to be that the College
was “misusing” public funds on various renovations and activities when they should have
been trying to accommodate the allegedly disabled professor. Id. But Marsden has not
alleged any claims of discrimination, disability or otherwise.
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In mid-June of 2019, an anonymous, threatening, harassing letter was sent
to the home of College President Borowicz. Id. ¶ 18. College Campus Police
determined that the letter was not a “criminal matter” and did not “constitute
harassment” and they closed the case, notifying College administrators, including
President Borowicz. Id. ¶ 20. On about June 20, 2019, President Borowicz reported
to the campus police and the college at large that Marsden had sent a threatening
and harassing anonymous letter to her home address. Id. ¶ 20. Further, President
Borowicz asked her assistant Dammon, who is also a Belvidere Police Officer, to
begin an investigation of Marsden. Id. ¶ 21.
As part of this independent investigation, Dammon searched and took photos
of Marsden’s personal belongings, including confidential records, student and
patient files, and patient mental health information. Id. ¶ 22. Additionally,
Dammon asked the DeKalb County Sheriff’s Department to have Marsden
investigated on behalf of President Borowicz. Id. He provided them with the photos
and notes from Marsden’s office and “requested that they procure a confession” from
Marsden. Id. ¶ 23. The following day, Detective Holiday and Deputy Johnson from
the DeKalb County Sheriff’s Office appeared on campus and interrogated Marsden,
escorting her publicly in front of College students and staff. Id. ¶¶ 24-25. Detective
Holiday explained that Borowicz had accused Marsden of committing criminal
activity by mailing the anonymous letter. Id. ¶ 26. Marsden alleges she was
“restrained” by Detective Holiday from leaving the office and that she was not
permitted to contact an attorney or a Union representative. Id. ¶ 27. After
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additional questioning, Detective Holiday informed her that the College’s Human
Resources would make a decision about the status of her employment, and that the
case was being referred to the State’s Attorney’s Office for criminal prosecution. Id.
When Marsden returned to her office, she was followed by Deputy Johnson,
who explained that he was escorting her off campus and allowing her to get her
things first. Id. ¶¶ 35-36. Deputy Johnson then escorted her from her office during
school hours while students and staff were present. Id. ¶ 37. In the presence of
Dammon and the Union President Ellis, McCluskey gave Marsden a letter stating
she was placed on administrative leave immediately because of the pending
investigation. Id. ¶ 39. Again, Marsden denied sending the anonymous letter. Id. ¶
40. President Borowicz maintained that Marsden had committed a crime by sending
the anonymous, threatening letter and also alleged that Marsden used a fake name
and email to fill out numerous FOIA requests that the College recently received. Id.
After the investigation was closed and Marsden was cleared of the criminal
allegations, McCluskey sent a letter to Marsden, which McCluskey then published
to College faculty and staff, stating that the complaint against Marsden was “not
substantiated,” that “there [was] not sufficient evidence” to sustain the alleged
conduct, and reminding her of various College policies. Id. ¶¶ 46-47. Marsden
alleges that she was forced to resign her teaching position at the College as part of
the faculty and assume a new “counseling role” at the College. Id. ¶ 48.
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Under Rule 8, a plaintiff must allege facts sufficient to “state a claim to relief
that is plausible on its face.” 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
This means that a plaintiff’s well-pleaded factual allegations must allow “the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true all of
the plaintiff’s well-pleaded allegations and views them in the light most favorable to
the plaintiff. Landmark Am. Ins. Co. v. Deerfield Constr., Inc., 933 F.3d 806, 809
(7th Cir. 2019). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” The statement must give to the defendant fair notice of what the
claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555. It must
also plausibly suggest that the plaintiff is entitled to relief, which “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
Further, the federal pleading standard does not require the plaintiff to satisfy
every element; plaintiff need only plead enough facts to elevate his claim from
speculative to plausible. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)
(“Complaints need not plead law or match facts to every element of a legal theory.”).
Defendants’ motion to dismiss claims to be made under Fed. R. Civ. P. 12(b)(6) and 12(c).
Because no answer has been filed, Rule 12(c) is not applicable. Regardless, the Court
analyzes both under the same standard. See Vinson v. Vermilion Cty., 776 F.3d 924, 928
(7th Cir. 2015) (“A dismissal under Rule 12(b)(6) and judgment on the pleadings under Rule
12(c) both employ the same standard: the complaint must state a claim that is plausible on
its face.”) (citations omitted); see also Twombly, 550 U.S. at 570.
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The burden of persuasion on a motion to dismiss rests with the defendant, not the
plaintiff. Reyes v. City of Chicago, 585 F. Supp. 2d 1010, 1017 (N.D. Ill. 2008) (“On a
motion to dismiss, defendants have the burden of demonstrating the legal
insufficiency of the complaint – not the plaintiffs or the court.”). Thus, a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a
complaint’s allegations, and when evaluating a 12(b)(6) motion, the court must
accept all well-pleaded facts as true and draw all reasonable inferences in favor of
the plaintiff. See Calderone v. City of Chicago, 979 F.3d 1156, 1161 (7th Cir. 2020).
* * *
As a preliminary matter, Plaintiff asserts the jurisdiction of this court under
28 U.S.C. § 1331 and § 1332, but continues to allege that she and all defendants are
citizens of Illinois. Dkt. 49, ¶¶ 2, 4-8. Jurisdiction under § 1332 is only proper when
diversity of citizenship of the parties exist. That is not the case here. Therefore,
because this case is here on federal question, if the constitutional claim (Count I) is
dismissed, the Court may decline to extend jurisdiction over the other seven related
state law claims. Currently, a viable federal claim exists, so the Court maintains
A. Count I: 42 U.S.C. § 1983 – First Amendment Retaliation
Defendants move to dismiss Marsden’s claim of First Amendment Retaliation
for the following reasons: (1) Marsden failed to plead facts demonstrating she spoke
on a matter of public concern and that Defendants were motivated by it; (2)
Marsden failed to establish that the alleged violation was caused by an express
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policy, widespread practice, or by a person with final policy-making authority; and
(3) that the individual defendants Borowicz, McCluskey, and Dammon are entitled
to qualified immunity.
1. Failure to State a Claim of Retaliation
Although plaintiff need not plead each element to defeat a motion to dismiss,
it is helpful to keep them in mind. To succeed on a claim for retaliation based on the
First Amendment, a plaintiff must establish that: (1) she “engaged in
constitutionally protected speech,” (2) she “suffered a deprivation likely to deter
protected speech,” and (3) her “protected speech was a motivating factor in the
deprivation and ultimately, if the [defendant] cannot show it would have inflicted
the deprivation anyway, its but-for cause.” Harnishfeger v. United States, 943 F.3d
1105, 1112-13 (7th Cir. 2019). This analysis is proper when a plaintiff who is a
public employee speaks “as a citizen upon matters of public concern” and not merely
“as an employee upon matters only of personal interest.” Connick v. Myers, 461 U.S.
138, 147 (1983); see also Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (creating a
framework for public employee speech that “first requires determining whether the
employee spoke as a citizen on a matter of public concern” and then “whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public”); Pickering v. Board of
Educ., 391 U.S. 563, 572 (1968) (“it is essential that [public school teachers] be able
to speak out freely . . . without fear of retaliatory dismissal”).
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An action is adverse for the purposes of First Amendment retaliation if it is
“likely [to] deter a person of ordinary firmness from continuing to engage in
protected activity.” Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011). The adverse
action need not independently violate the Constitution. Hoskins v. Lenear, 395 F.3d
372, 375 (7th Cir. 2005) (“Conduct that does not independently violate the
Constitution can form the basis for a retaliation claim, if that conduct is done with
an improper, retaliatory motive.”). The third element requires a plaintiff to show
“that the fact of the plaintiff’s engagement in protected activity was a motivating
factor of the alleged adverse action, not merely that the substance of the plaintiff’s
[conduct] motivated a response that the plaintiff did not particularly like.”
Holleman v. Zatecky, 951 F.3d 873, 879 (7th Cir. 2020).
Defendants argue that Marsden has not alleged that she spoke on a matter of
public concern because a FOIA request “cannot rise to the level of speech on a
matter of public concern” under the standard in Connick. Dkt. 55, at 13. A FOIA
request, Defendants argue, “is nothing more than a request for access” and
therefore is not “speech on a matter of public concern.” Id. But Defendants ignore
the other allegations of protected speech, such as telling the Union President of her
concerns about corruption and misuse of taxpayer funds, ¶ 11(a); speaking at a
Union meeting about the College’s misusing public taxpayer funds for unnecessary
and expensive renovation and landscaping, ¶ 11(c); telling Union members that the
College was intentionally holding back financial records related to the campus
expenditures, ¶ 11(d); speaking at a Union meeting about the College’s misusing
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public taxpayer funds to remodel the President’s Office Suite and Gaming Room,
¶ 11(e); speaking at a Union meeting about the College’s misusing public taxpayer
funds regarding emergency landscaping, a College Wine Walk event, and a
Horticultural Flowerbed Fundraising event, ¶ 11(f); and speaking at faculty
meetings about the College’s misusing taxpayer dollars on unnecessary
expenditures and its discrimination of a disabled female professor, ¶ 11(g). Dkt. 49,
¶ 11. Indeed, although Mardsen references the FOIA request throughout the Second
Amended Complaint, it is littered with similar allegations of being retaliated
against for publicly criticizing the College’s misuse of public funds. Dkt. 49, ¶¶ 15,
43, 63, 65. 5
Not only do Defendants ignore the multiple instances of alleged protected
speech, but they also rely on case law that is easily distinguishable. For example, in
Houchins v. KQED, Inc., the Supreme Court held that the public and the media had
no First Amendment right of access to jails. 438 U.S. 1, 7-8 (1978) (rejecting the
argument that the right to gather news and to receive information implied a special
right of access to government-controlled sources of information). Here, Marsden is
not challenging her right to information from the College—nor is she challenging
the denial of her FOIA request, though she does allege it was “improperly” denied.
Marsden is alleging that her speech and conduct in requesting the information itself
is protected. Houchins does not touch this issue and is thus distinguishable.
Marsden’s allegations of filing of a FOIA request and signing an affidavit in support of the
Union’s appeal of a denied FOIA request appear in her complaint at ¶ 11(b) and ¶ 11(h).
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Similarly, in Travis v. Reno, the Seventh Circuit rejected arguments that the
Driver’s Privacy Protection Act (18 U.S.C. § 2271-25) was an unconstitutional
exercise of Congress’ commerce power because it violated the anti-commandeering
clause of the Tenth Amendment. 163 F.3d 1000, 1001 (7th Cir. 1998) (holding that
the Act does not violate the First Amendment on its face). Again, Defendants
conflate the right to access information with the right to speak freely. Travis
concerns right of access to information. Marsden is not challenging the denial of her
FOIA request, but rather stating that her speech in requesting the information was
itself protected and the motivating factor for the College’s actions.
In McBurney v. Young, the Supreme Court held that Virginia’s Freedom of
Information Act, which only granted requests made by citizens of Virginia, did not
violate the Privileges and Immunities Clause. 569 U.S. 221, 232 (2013) (upholding
Virginia’s FOIA because the right to obtain information is not without limit). Again,
McBurney is distinguishable from the present facts. Marsden is not arguing that
she has a First Amendment right to information from the College; rather, she
alleges that her request itself, along with her other occasions to speak regarding the
College’s use of taxpayer funds, is protected by the First Amendment. This Court is
not persuaded by Defendants’ argument.
In Campbell v. Towse, the Seventh Circuit applied the Pickering-Connick
analysis to a police officer’s complaint about the efficacy of a police program. 99 F.3d
820, 826 (7th Cir. 1996). The Campbell court settled the threshold inquiry—
whether the officer’s speech addressed a matter of public concern, focusing on its
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“content, form and context”—in favor of the officer, but on balance, found that the
police department’s interests outweighed the officer’s interest in expressing his
views. Id. at 827-29 (quoting Connick, 461 U.S. at 147-48). Defendants argue that
under this analysis, Marsden’s allegations fail because she did not provide content
or context for the FOIA affidavit. But Marsden did. She alleged that the affidavit
was in support of the Union’s appeal of the FOIA request she submitted for
employee survey comments from 2011, 2013, and 2017, which were later made
public by President Borowicz during a public briefing. Dkt. 49, ¶¶ 11(h), 11(b). And
again, Mardsen’s complaint alleges much more than the FOIA request.
Further, Defendants neglect to address whether Marsden was speaking as a
public employee or private citizen, instead contending that Marsden’s complaint
lacks context and information needed to determine whether the FOIA request and
affidavit signature “rises to a level of public concern.” Dkt. 55, at 13-14. Defendants
have failed to develop these issues, and thus they are forfeited. United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“perfunctory and undeveloped
arguments that are unsupported by pertinent authority are waived (even where
those arguments raise constitutional issues)”). The Court is satisfied that Marsden’s
alleged public criticism of the College’s spending practices plausibly alleges speech
protected by the First Amendment.
Next, Defendants argue that Marsden failed to plead facts that Defendants
were motivated by her speech. Defendants argue that “[t]o establish motivation,
plaintiff must show that the person who allegedly retaliated against her knew of the
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protected conduct.” Dkt. 55, at 14 (citing Samuelson v. LaPorte Comm. Sch. Corp.,
526 F.3d 1046, 1054 (7th Cir. 2008)). But on a motion to dismiss, a plaintiff need not
allege each element. See Bennett, 153 F.3d at 518. As Defendants acknowledge,
Marsden alleges that Dammon was present for some of the meetings where
Marsden spoke against the College’s expenditures. See, e.g., Dkt. 49, ¶¶ 11(c), 11(f),
11(g). Defendants argue that although Marsden pleaded “Dammon attended the
meetings, no facts are pled which demonstrate that Dammon would have actually
heard the alleged statements.” Dkt. 55, at 15. But here, Defendants mistakenly rely
on Samuelson’s requirement that a plaintiff show actual knowledge. Samuelson was
decided on a motion for summary judgment, with the aid of discovery. The court
cannot require a plaintiff to meet this high burden on a motion to dismiss.
Defendants’ argument against motive by temporal proximity similarly fails.
Citing to Mullin v. Gettinger, Defendants argue that the ten months’ time between
the last alleged instance of protected speech (August 2018) and the retaliatory
conduct (June 2019) is too long for it to be a motivating factor. 450 F.3d 280, 285
(7th Cir. 2006). But Mullin was decided on a motion for a new trial, after a jury
decided the case. Similarly, Kidwell v. Eisenhauer, was decided on a motion for
summary judgment. 679 F.3d 957, 969 (7th Cir. 2012). Defendants argue that
Marsden “failed to establish that the defendants had the requisite awareness” and
“has failed to plead facts establishing a prima facie case of retaliation,” but those
are clearly standards under Rule 56, not Rule 12. 6 Dkt. 55, at 16.
The Court urges litigants to rely on cases that were decided in the same procedural
posture. In memoranda supporting or opposing a motion to dismiss, cases that were decided
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On a motion to dismiss, a plaintiff need only allege a plausible claim.
Marsden has alleged that she voiced concerns about the College’s use of taxpayer
funds as a private citizen and that the College placed her on a target list and forced
her to take a non-faculty position in retaliation for her speech. The Court is satisfied
that she has plausibly alleged retaliation under the First Amendment.
2. Failure to Plead a Monell Claim against the College
Defendants further argue that the First Amendment Retaliation claim
against the College should be dismissed because Marsden has not sufficiently
pleaded a Monell claim. To sufficiently state a cause of action against the College,
Marsden “must allege facts which, if true, would show that the governmental entity
deprived [her] of a constitutionally protected right, and that the deprivation was
caused by a municipal policy or custom.” Leahy v. Board of Trs., 912 F.2d 917, 922
(7th Cir. 1990) (citing Monell v. Dep’t of Soc. Svcs., 436 U.S. 658, 694 (1978)). A
governmental entity “can be held liable for a constitutional violation only if the
violation resulted from a formal policy, and informal custom, or a decision ‘made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
on summary judgment (or on appeal of summary judgment) are only moderately helpful
because of the differing standards. See, e.g., Winchester v. Ryder Integrated Logistics, Inc.,
No. 19-CV-01356-NJR, 2020 U.S. Dist. LEXIS 148760, *6-7 (S.D. Ill. Aug. 18, 2020)
(discussing what is required to state a claim under the FMLA versus what is required to
prevail upon a claim under the FMLA); Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (“The
question presented by a motion to dismiss for insufficient pleadings does not turn on the
controls placed on the discovery process.”). This applies to the inverse as well. See Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990) (An opinion decided on a motion to dismiss “is
of no relevance here, since it involved not a Rule 56 motion for summary judgment but a
Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that
general allegations embrace those specific facts that are necessary to support the claim.”
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official policy.’” Bradley v. Vill. of Univ. Park, 929 F.3d 875, 879 (7th Cir. 2019)
(quoting Monell, 436 U.S. at 694); Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir.
2005). Thus, a plaintiff can claim that a governmental entity caused harm under §
1983 in one of three ways: (1) pursuant to “an official policy adopted by the entity’s
officers”; (2) “pursuant to a custom—even one that is not formally codified”; or (3)
when someone “with final decision-making authority within the entity adopted the
relevant policy or custom.” Thomas v. Martija, 991 F.3d 763, 773 (7th Cir. 2021)
(citing Monell, 436 U.S. at 690-91, 694). Under the latter, “only those municipal
officials who have ‘final policymaking authority’ may by their actions subject the
government to § 1983 liability,” and “whether a particular official has ‘final
policymaking authority’ is a question of state law.” St. Louis v. Praprotnik, 485 U.S.
112, 123 (1988).
Here, Marsden does not adequately allege that the College caused her harm
through an express policy, custom, or practice. To the extent that she alleges
College President Borowicz is directly responsible for decision-making related to the
alleged First Amendment retaliation against her, she does not plausibly allege how
President Borowicz had policymaking authority. The College argues that the
President of a community college is not the final policy-maker because Illinois’
Community Colleges Act places that final policymaking authority in the hands of a
board. Dkt. 55, at 17; 110 ILCS 805/3-25. 7 In response, Marsden argues “it is a clear
Indeed, the Community Colleges Act creates a hierarchical structure for administration,
from a State Board whose Chair is appointed by the Governor down to the board of
community college districts comprised of elected members. This Act gives the board
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question of fact at this time as to whether the named Defendants . . . were ‘persons
with final policymaking authority’ at the College.” Dkt. 62-1, at 22. Marsden cites to
Kujawski v. Board of Comm’rs, 183 F.3d 734 (7th Cir. 1999), a case decided at
summary judgment, for the proposition that whether a Board has delegated its
authority to its employees or officials is a question of fact. See Dkt. 62-1, at 23. 8
Although “an individual’s status as a policy-making employee frequently
poses a fact question[,] . . . when the duties and responsibilities of a particular
position are clearly defined by law and regulations, a court may resolve this issue
without the aid of a finder of fact.” Vargas-Harrison v. Racine Unified Sch. Dist.,
272 F.3d 964, 972 (7th Cir. 2001) (employing the Court’s analysis in Pickering). So,
a complaint’s factual allegation—or at least a reasonable inference drawn from the
allegations—might be sufficient to withstand a motion to dismiss, but without
evidence to support the allegation or inference, summary judgment will be granted.
See, e.g., Carpanzano v. College of DuPage, No. 03 C 4358, 2003 U.S. Dist. LEXIS
22004, *6 (N.D. Ill. Dec. 5, 2003) (denying a motion to dismiss when plaintiff
expressly alleged that final policymaking authority had been delegated to
defendants and also acknowledging that a delegation may be contrary to law);
Butler-Burns v. Bd. of Trs., No. 16 C 4076, 2018 U.S. Dist. LEXIS 48800, *25-26
authority to hire, fire, and establish policies within their respective districts. See 110 ILCS
8 The Court is not a Blue Book stickler. So long as the Court can quickly and easily find the
cited authority, the Court’s fine. But if the citation is erroneous or lacks page numbers,
then judicial resources are wasted hunting for the authority. See Betts v. ARDC, No. 93 C
5883, 1994 U.S. Dist. LEXIS 8477, *15 n.8 (N.D. Ill. June 21, 1994) (imposing Rule 11
sanctions against an attorney for, among other things, providing citations “of no value”
because they lack page numbers).
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(N.D. Ill. Mar. 26, 2018) (finding, on summary judgment, that plaintiff’s claim that
policymaking authority was delegated to officials in that they could hire and fire
was not sufficient evidence to show that they had authority to make policy).
In Pembaur v. Cincinnati, a plurality of the Court wrote that “[a]uthority to
make municipal policy may be granted directly by a legislative enactment or may be
delegated by an official who possesses such authority, and of course, whether an
official had final policymaking authority is a question of state law.” 475 U.S. 469,
483 (1986) (“hold[ing] that municipal liability under § 1983 attaches where—and
only where—a deliberate choice to follow a course of action is made from among
various alternatives by the official or officials responsible for establishing final
policy with respect to the subject matter in question”). Therefore, although it may
be a question of fact as to whether an official with policymaking authority delegated
his authority, whether the delegator had policymaking authority in the first place is
a question of state law.
Here, Marsden’s Second Amended Complaint provides no allegations or even
a reasonable inference as to who delegated what authority to whom and under what
circumstances. A mere allusion of delegation made in a response brief, which was
all that was done here, is not enough to plausibly allege a Monell claim against a
municipal entity. Defendants argue that this claim should be dismissed as to
Kishwaukee College for failure to allege liability under Monell, and the Court
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Marsden’s First Amendment retaliation claim brought under § 1983 against
the College is dismissed without prejudice, with leave to amend consistent with
Rule 11. See Fed. R. Civ. P. 11(c). 9
3. Individual Defendants’ Defense of Qualified Immunity
Qualified immunity shields state officials from liability “unless a plaintiff
pleads facts showing (1) that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Courts consider two factors in
determining qualified immunity: (1) whether a right was violated, and (2) whether
that right was established at the time. Jacobs v. City of Chicago, 215 F.3d 758, 766
(7th Cir. 2000). “If the rights were clearly established, the official may be liable for
monetary damages and the suit proceeds to the next stage. If the rights were not
clearly established, then the official is immune from suit and the claim is
Even if Mardsen is able to file an amended complaint alleging a Monell claim against the
College, Mardsen’s counsel should ask themselves why she needs that claim. In Illinois, a
Monell claim has no practical consequences as to damages. Jones v. City of Chicago, 856
F.2d 985, 995 (7th Cir. 1988). Under Illinois law, plaintiffs who prevail will receive the
amount of compensatory damages the jury determines that they are entitled to; plaintiffs
do not receive more compensatory damages just because there are more defendants.
Compensatory damages compensate; they don’t provide a windfall. Hillmann v. City of
Chicago, 66 F. Supp. 3d 1109, 1117 (N.D. Ill. 2014). Moreover, under Illinois law, units of
local governments (such as community colleges) are required to indemnify employees for
compensatory damages. 110 ILCS 805/3-30. And, under Seventh Circuit law, plaintiffs can
simply add an indemnification claim in their complaint to ensure recovery of compensatory
damages. Wilson v. City of Chicago, 120 F.3d 681, 684-85 (7th Cir. 1997). So, adding a
Monell claim provides nothing to plaintiffs’ compensatory damages. And, under City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), punitive damages are unavailable
against units of local government for violations of claims brought under Section 1983. So, a
Monell claim provides nothing to plaintiffs’ punitive damages. Mardsen should keep all of
this in mind before filing yet another amended complaint with a Monell claim.
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A plaintiff bears the burden to establish whether a right was clearly
established at the time of the violation. Id. at 766-67 (explaining how the analysis
reviews Supreme Court decisions, Seventh Circuit decisions, and finally, other case
law if necessary). And “while qualified immunity may not entitle a defendant to
dismissal on the pleadings, qualified immunity may entitle the defendant to
summary judgment later on.” Hanson v. LeVan, 967 F.3d 584, 592 (7th Cir. 2020)
(acknowledging that “before discovery begins, a defendant asserting qualified
immunity is entitled to dismissal if the allegations in the complaint fail to state a
claim of a clearly established right having been violated[, but a]fter discovery,
however, the defendant asserting qualified immunity is entitled to summary
judgment if the evidence fails to demonstrate a genuine factual issue about the
characteristics of the employee's position or whether the defendant committed the
First, Marsden alleged that President Borowicz, Dammon, and McCluskey
violated her constitutional rights under the First Amendment when they retaliated
against her for her speech regarding the College’s alleged misuse of public funds
and her FOIA requests. Defendants argue that they “are qualifiedly immune
because no case has held that a First Amendment claim can be based on a FOIA
request or affidavit where no speech as a citizen on a matter of public concern is
alleged to be part of that FOIA request or affidavit.” Dkt. 64, at 5. Defendants’
response is only challenging whether the FOIA request is a constitutional violation;
however, Marsden’s Second Amended Complaint alleges First Amendment conduct
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beyond the FOIA request, including speech at several campus meetings and
engagement with Union activities. This Court need not determine whether a FOIA
request itself is protected speech because Marsden clearly alleged other instances of
protected speech in her complaint.
Next, the question is whether Defendants’ “conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” City of Talequah, Okla. v. Bond, 595 U.S. ___, ___ (2021) (slip op., at
3) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (per curiam). Defendants
do not argue for dismissal based on qualified immunity because there is no clearly
established right, but rather, “because the defendants did not violate plaintiff’s
clearly established constitutional right.” Dkt. 55, at 19. Defendants argue that they
were unaware of the First Amendment speech and could, therefore, not have
retaliated because of it. Id. at 20. But causation is not part of the qualified
immunity analysis. Marsden responds by claiming the facts of her case are “very
analogous . . . almost verbatim” to those of Pickering v. Board of Educ., 391 U.S. 563
(1968). The Seventh Circuit has also been clear that “[a]n employee’s ability to
highlight the misuse of public funds or breaches of public trust is a critical weapon
in the fight against government corruption and inefficiency.” Wainscott v. Henry,
315 F.3d 844, 849 (7th Cir. 2003).
At this stage of the litigation, Marsden has alleged a constitutional violation
that existed at the time. That is all she needs to do. Defendants’ motion to dismiss
based on qualified immunity is denied.
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B. Count II: Ethics Act (5 ILCS 430/15-10)
Marsden brings Count II against Defendants for violation of the State
Officials and Employee Ethics Act, 5 ILCS 430 (“Ethics Act” or “Illinois Ethics Act”),
specifically its whistleblower protection section that prohibits a “State employee”
from taking retaliatory action against another state employee for activities such as
public disclosure of legal or regulatory violations, providing information for use in
investigations or hearings, or assisting others in doing so. See 5 ILCS 430/5-5–40;
Wynn v. Ill. Dep’t of Human Servs., 2017 IL App (1st) 160344, ¶ 57, 81 N.E.3d 28,
38-9 (Ill. App. Ct. 2017). Defendants move to dismiss this count because the Act
expressly excludes community colleges from the definition of “State agency,” and by
reference, “State employee.” Dkt. 55, at 20-21; 5 ILCS 430/1-5. Marsden argues that
“this is simply not true.” Dkt. 62-1, at 27.
Under the whistleblower protection provision of the State Officials and
Employees Ethics Act, certain activities are protected. But critical to this case are
two questions: (1) are any of the defendants “[a]n officer, a member, a State
employee, or a State agency”; and (2) is Mardsen “a State employee”? The statute
only allows a claim against those specific defendants by “a State employee”. 5 ILCS
430/15-10. The statute defines “State employee” as “any employee of a State
agency.” 5 ILCS 430/1-5. And “State agency” is defined to include a cornucopia of
entities. Id. But the definition specifically carves out community colleges and
community college employees in two distinct ways. First, included within the
definition of “State agency” are “institutions of higher learning as defined in Section
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2 of the Higher Education Cooperation Act (except community college districts)”
(emphasis added). Section 2 of the Higher Education Cooperation Act includes in
the definition of “public institutions of higher education” “the public community
colleges of this State.” 110 ILCS 220/2. So, the exclusion of community colleges is
Second, as if to wear a belt and suspenders, the Illinois General Assembly
included another carve-out for community colleges. Sometimes, Illinois community
colleges are considered units of local government. See Am. Ctr. For Excellence in
Surgical Assisting, Inc. v. Cmty. College Dist. 502, 315 F. Supp. 3d 1049, 1054 (N.D.
Ill. 2018) (citing Bd. of Trs. of Cmty. Coll. Dist. No. 502 v. Dep’t of Prof’l Regulation,
842 N.E.2d 1255, 1266 (Ill. App. Ct. 2006)); see also Luciano v. Waubonsee Cmty.
Coll., 614 N.E.2d 904, 908 (Ill. App. Ct. 1993). The statute includes the following in
the definition of “State agency”: “administrative units or corporate outgrowths of
the State government which are created by or pursuant to statute, other than units
of local government (including community college districts). 5 ILCS 430/1-5
(emphasis added). So, in the same definition of “State agency”, the Illinois General
Assembly again excluded community colleges so as to remove all doubt, even when
community colleges are considered units of local government.
Because the College and the individual defendants are not a “State agency”,
and Mardsen is not a “State employee”, the statute does not apply. Simply put, the
whistleblower protection in § 15-10 does not protect employees of community
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colleges. The Court agrees with Defendants and dismisses Count II with
C. Counts III & IV: Defamation and False Light Invasion of Privacy
Marsden alleges that Defendants defamed her and violated her privacy by
placing her in a false light to the College community when they claimed that
Marsden wrote and sent the anonymous threatening letter and published the letter
sent to Marsden at the conclusion of the internal investigation. Dkt. 49, ¶¶ 78-95.
Defendants move to dismiss these counts based on absolute privilege and
immunity. Defendants’ argument is based, in part, on the protection given to
statements made in furtherance of a criminal investigation. Morris v. Harvey Cycle
and Camper, Inc. 911 N.E.2d 1049, 1054 (Ill. App. Ct. 2009) (“Defamatory
statements that would otherwise be actionable will escape liability when the
conduct is to further an interest of social importance such as the investigation of an
alleged crime.”) (citing W. Prosser, Torts §114 (4th ed. 1971)). Indeed, it is
important that all citizens be free to report suspected crimes without fear of civil
Rule 8 does not require plaintiffs to plead legal theories and this Court will not dismiss a
claim under 12(b)(6) for citing the wrong statutory section. King v. Kramer, 763 F.3d 635,
642 (7th Cir. 2014) (citing cases). However, regardless of which of the three possible
statutes she may be relying upon, she has no claim. First, Marsden expressly brings Count
II under the Illinois Ethics Act. See Dkt. 49, ¶¶ 73-77. But referring to her claim as being
under the “Ethics Act” is a misnomer. The “Illinois Governmental Ethics Act” applies to
legislators. See 5 ILCS 420/2-101 et seq. So, Mardsen has no claim under this statute.
Second, in her response brief, she addresses the State Officials and Employees Ethics Act.
Dkt. 62-1, at 26-27. As shown, there is no claim under this statute. Third, Mardsen does not
allege or argue Illinois’ statute specifically relating to local government employees, to the
extent a community college employee is a “local government employee.” Perhaps, that
decision was intentional because she has no claim under that statute as well. See 50 ILCS
105/4.1 (requiring, among other things, a written report to an appropriate auditing official
within 60 days of the retaliatory action).
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liability. However, Marsden alleges that “on or about June 17, 2019, the anonymous
letter was determined not to be a criminal matter or constitute harassment by
Campus Officer Eklund and the case was closed.” Dkt. 49, ¶ 20. She also alleges
that Defendants’ defamatory conduct occurred June 20, 2019, when President
Borowicz told the College community that Marsden sent the anonymous letter,
through August 6, 2019, when McCluskey published the letter mailed to Marsden.
Id. ¶¶ 18, 47. According to Marsden’s timeline, she had been cleared of potential
criminal charges regarding the threatening letter before Defendants made the
allegedly defamatory statements. Therefore, it is unclear whether Defendants’
conduct was privileged for reporting of a suspected crime.
Alternatively, Defendants argue that College administrators have absolute
immunity as public officials. Under Illinois law, a “local public entity is not liable for
injury caused by any action of its employees that is libelous or slanderous or for the
provision of information either orally, in writing, by computer or any other
electronic transmission, or in a book or other form of library material.” Horowitz v.
Board of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 617 (7th Cir. 2001) (quoting
745 ILCS 10/2-107). Further, “[a] public school [official] is absolutely immune from
liability for defamation if the statements were made while acting within the scope of
his official duties.” Marchioni v. Bd. of Educ. of City of Chicago, 03-cv-0104, 2003
U.S. Dist. LEXIS 10431, *6 (N.D. Ill. Jun. 18, 2003). This privilege applies when the
public officials are acting within the scope of their employment. At this stage of the
pleadings, without a more fully developed record—and given the alleged facts and
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timeline—it is unclear whether Defendants’ conduct was within the scope of their
duties, and dismissal of these claims on immunity is premature.
As to the allegations themselves, defamatory statements “tend to cause
such harm to the reputation of another that it lowers that person in the eyes of the
community or deters third persons from associating with him.” Kolegas v. Heftel
Broad. Corp., 607 N.E.2d 201, 206 (Ill. 1992) (citing Restatement (Second) of Torts §
559 (1977)). To succeed on a claim of defamation, a plaintiff “must present facts
showing that the defendant made a false statement about the plaintiff, that the
defendant made an unprivileged publication of that statement to a third party, and
that this publication caused damages.” Green v. Rogers, 917 N.E.2d 450, 459 (Ill.
2009). Allegations of defamation and privacy torts fall within the Rule 8 pleading
standards, which do not require plaintiffs to “recite verbatim the allegedly
defamatory statement.” Rivera v. Allstate Ins. Co., 140 F. Supp. 3d 722, 728 (N.D.
Here, as to McCluskey’s August 6, 2019 publication of a letter to Marsden,
there does not appear to be any false statements in the letter itself. Marsden alleges
that this letter accused her of “violating professional policies,” “falsely claimed that
[she] failed to adhere to general standards of professionalism,” “falsely claimed that
[her] misconduct subjected her to discipline,” and “falsely claim[ed] that [Marsden]
threatened the College President and of sending [sic] a threatening letter to her.”
Dkt. 49, ¶ 79. This is not so. The letter, attached to the complaint as Exhibit B,
acknowledges that there was an investigation into her “alleged sending of an
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anonymous threatening letter” and continues to explain that “there is not sufficient
evidence to show that [Marsden] engaged in the alleged conduct or violated any
College policy.” Dkt. 49-2. Further, Marsden’s allegations that the letter falsely
claimed she violated various policies is simply untrue. The letter states, “As a
reminder, College employees are expected to comply with all College policies . . .
Failure to comply with these policies . . . will subject an employee to discipline, up to
an including termination.” Id. These statements concerning the College’s policies
are neither accusatory nor directed at Marsden’s conduct. In fact, the letter cleared
Marsden of any such conduct. Though Marsden alleges that this letter “falsely”
claimed she violated these policies and accused her of this conduct, the plain text of
the letter refutes that allegation. So, there is no false statement in the letter, and
Count III as to McCluskey is dismissed with prejudice.
As to Borowicz, Marsden has adequately pleaded a claim of defamation when
she alleged that on June 20, 2019, President Borowicz told the College community
that Marsden sent the anonymous threatening letter, which causing injuries to her
reputation. Dkt. 49, ¶¶ 78-89. Defendants’ motion to dismiss Count III as to
Defendant Borowicz is denied. Marsden does not make specific defamation
allegations as to Dammon and the College, and even a liberal reading of the
complaint does not establish these allegations. Therefore, Count III is dismissed
with prejudice as to Dammon and the College.
To state a claim of “invasion of privacy in the form of publicity placing
another in a false light,” a plaintiff must show that:
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(1) plaintiff was “placed in a false light before the public as a result of
(2) that false light “would be highly offensive to a reasonable person”; and
(3) defendants acted “with knowledge that the statements were false or with
reckless disregard for whether the statements were true or false.”
Kolegas, 607 N.E.2d at 209-10 (citing Lovgren v. Citizens First Nat’l Bank, 534
N.E.2d 987, 990-91 (Ill. 1989)). False light invasion of privacy depends “upon the
false impression created by defendant’s statements.” Lanigan v. Resolution Tr., No.
91-cv-7216, 1994 U.S. Dist. LEXIS 158, *15 (N.D. Ill. Jan. 7, 1994).
Here, Marsden alleges that the same conduct (that of Borowicz’s and
McCluskey’s) placed her in a false light to the public College community, that it was
“highly offensive or embarrassing to a reasonable person of ordinary sensibilities,”
and that “Defendants acted with actual malice where it [sic] knew that the
statements were false or made then [sic] with utter and reckless disregard as to the
statements’ truth,” causing her continued injuries to her reputation. Dkt. 49, ¶¶ 9095. Taking these allegations as true and drawing all reasonable inferences in favor
of Marsden, she adequately states a claim for false light invasion of privacy as to
Borowicz. The allegations are not as straightforward as to McCluskey because the
statements published in the letter are decidedly not false. However, a trier of fact
could be convinced that McCluskey’s statements gave a “false impression” and that
McCluskey acted with reckless disregard. Whether discovery will reveal otherwise
is not for the Court to decide at this juncture. Defendants’ motion to dismiss Count
IV as to Borowicz and McCluskey is denied. As with Count III, Marsden has failed
to make specific allegations as to Dammon and the College, so Count IV is
dismissed with prejudice as to them.
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D. Counts V & VI: Emotional Distress
Marsden alleges that Defendants both intentionally and negligently inflicted
emotional distress. Defendants move to dismiss Count V for failure to state a claim
because the conduct fails to rise to the extreme level required by law, and Count VI
because Marsden cannot satisfy Illinois’ “impact rule.”
In Illinois, to establish a claim for intentional infliction of emotional distress
(“IIED”), a plaintiff must show that defendants’ conduct was extreme and
outrageous, that defendants intended to inflict severe emotional harm or knew that
the harm was highly likely to result, and that harm did, in fact, result from the
conduct. Motley v. United Airlines, Inc., 2017 U.S. Dist. LEXIS 32619, *10 (N.D. Ill.
Mar. 8, 2017) (citing Feltmeier v. Feltmeier, 798 N.E.2d 75, 79-80 (Ill. 2003)). The
level of severity necessary to establish a claim for intentional infliction of emotion
distress is extreme, such that no reasonable person should be expected to endure it.
Hang Cui v. Kubycheck, 2021 IL App. (2d) 200239-U, ¶ 29. To be considered
extreme and outrageous, “the nature of the defendant’s conduct must be so extreme
as to go beyond all possible bounds of decency and be regarded as intolerable in a
civilized community.” Feltmeier, 798 N.E.2d at 83. Furthermore, sufficiently
pleaded complaints often involve “a defendant who stood in a position of power or
authority relative to the plaintiff.” Id. at 83; see also Motley, 2017 U.S. Dist. LEXIS
Here, Marsden alleges that Defendants’ conduct caused her “to suffer fright,
grief, worry, shame, humiliation” and that her “psychological well-being” was
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affected by the “false criminal charges and unlawful investigation.” Dkt. 49, ¶ 100.
She further alleges that their conduct “created an intimidating, hostile, and
offensive work environment, which unreasonably interfered with [her] work
performance.” Id. While these adjectives certainly paint a picture of severe
emotional harm, Marsden has alleged no facts to suggest that Defendants’ conduct
would be “intolerable in a civilized community” or such that “no reasonable person
should be expected to endure it.” It is reasonable that Defendants would investigate
an anonymous threatening letter being sent to the home address of College
President Borowicz, and although the investigation eventually cleared Marsden of
wrongdoing, Defendants’ alleged conduct falls short of extreme and outrageous
conduct. Count V is dismissed with prejudice.
To state a claim for negligent infliction of emotional distress (“NIED”) in
Illinois, a plaintiff “must allege the traditional elements of negligence: duty, breach,
causation, and damages” in addition to extreme and outrageous conduct. Schweihs
v. Chase Home Fin., LLC, 77 N.E.3d 50, 58 (Ill. 2016). “A direct victim’s claims for
negligent infliction of emotional distress must include an allegation of
contemporaneous physical injury or impact.” Id. at 59; Lewis v. CITGO Petroleum
Corp., 561 F.3d 698, 703 (7th Cir. 2009) (noting that a direct victim of alleged NIED
in Illinois must satisfy the impact rule).
Here, Marsden argues that she is a direct victim who sustained “physical
impact by the humiliation of being paraded around the campus by officers on
several occasions in front of staff and students.” Dkt. 62-1, at 30. She also alleges
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that she “suffered from severe physical illness as a proximate result of Defendant’s
[sic] actions.” Dkt. 49, ¶ 109. The allegation that she suffered from severe physical
illness is inadequate to show physical harm. Marsden appears to be conflating the
bystander “zone of danger” analysis with the direct victim “impact rule” analysis for
claims of NIED. A bystander traditionally needs to show a physical manifestation of
the emotional distress to recover. Benton v. Little League Baseball, Inc., 2020 IL
App (1st) 190549, ¶¶ 77-80. But a direct victim need show some physical impact
that precipitated or was contemporaneous with the emotional distress. Schweihs v.
Chase Home Fin., LLC, 2016 IL 120041, ¶ 38, 77 N.E.3d 50, 59 (Ill. 2016). Even if
physical injury or impact was sufficiently pleaded, Marsden’s allegations still fail to
state any extreme or outrageous conduct giving rise to this claim. Therefore, Count
VI is dismissed with prejudice.
E. Count VII: False Imprisonment
Marsden alleges she was falsely imprisoned by “Defendant” on more than one
occasion, though the facts only suggest this conduct occurred in the sheriff’s campus
office. See Dkt. 49, ¶¶ 27, 113-15. Defendants move to dismiss for failure to state a
claim and because the facts suggest she voluntarily submitted to the questioning
inside the office.
The tort of false imprisonment is “an unlawful restraint of an individual’s
personal liberty or freedom of locomotion.” Pechulis v. City of Chicago, No. 96-cv2853, 1997 U.S. Dist. LEXIS 11856, *9 (N.D. Ill. Aug. 7, 1997). In Illinois, false
imprisonment requires “actual or legal intent to restrain . . . which may be effected
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by words alone, by acts alone or both.” Lopez v. Winchell’s Donut House, 466 N.E.2d
1309, 1311 (Ill. App. Ct. 1984). The confinement must be against an individual’s
will; voluntary consent to confinement defeats the claim. Id. at 1312 (adopting the
approach of the Restatement (Second) of Torts § 38-41, wherein yielding to asserted
legal authority can establish confinement against one’s will).
Here, Marsden uses group pleadings so that the Court cannot determine
which defendant (if any) is accused of false imprisonment, whether the defendant
acted with intent to confine or asserted legal authority, or whether Marsden was
actually confined to a physical space (i.e., by a locked door). In fact, Marsden’s
allegations reasonably imply that either DeKalb County Sheriff’s Deputy Johnson
or Detective Holiday, neither of whom are parties to this lawsuit, is the actor in this
context. See Dkt. 49, ¶¶ 25-33. And that is the reasonable inference the Court
draws from those allegations. In response to the motion to dismiss, Marsden argues
that she “was restrained by the Dekalb Sheriff” and that this was done “at the
behest of Borowicz and Dammon.” Dkt. 62-1, at 30. But this is not enough to
plausibly allege that the individual defendants intended to confine her against her
will and did so through the DeKalb Sheriff. Although a plaintiff need not plead facts
to support each element, plaintiff must give defendants fair notice of the nature of
the claim against them. See Twombly, 550 U.S. at 555. Count VII is dismissed
without prejudice, with leave to amend.
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F. Count VIII: Willful Misrepresentation (745 ILCS 10/2-210)
Finally, Marsden alleges “willful misrepresentation of the provision of false
information in violation of 745 ILCS 10/2-210.” Dkt. 49, ¶¶ 118-130. Defendants
move to dismiss for failure to state a claim because the cited statute is an exception
to the Tort Immunity Act, not itself a claim. The Court agrees. Count VIII is
dismissed with prejudice.
For the reasons outlined above, Defendants’ motion to dismiss is granted in
part and denied in part, as follows:
Granted without prejudice as to the College; denied as to
Borowicz, McCluskey, and Dammon.
Granted with prejudice as to all Defendants.
Denied as to Borowicz; granted with prejudice as to McCluskey,
the College, and Dammon.
Denied as to Borowicz and McCluskey; granted with prejudice
as to the College and Dammon.
Granted with prejudice as to all Defendants.
Granted with prejudice as to all Defendants.
Count VII. Granted without prejudice as to all Defendants.
Count VIII. Granted with prejudice as to all Defendants.
Mardsen is given until December 3, 2021, to file an amended complaint. Mardsen
and her counsel should give considerable thought as to whether filing yet another
amended complaint is a worthwhile endeavor or even appropriate under Rule 11.
Regardless of whether an amended complaint is filed by that date, Defendants are
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ordered to file an answer, along with any affirmative defenses, by December 20,
2021; thereafter, they can file a motion for judgment on the pleadings as to any
claims they think should be dismissed. Defendants and their counsel should
likewise give considerable thought as to whether a Rule 12(c) motion is a
worthwhile endeavor as they can always file a motion for summary judgment later,
as they will undoubtably want to do as to the claims that are not dismissed.
Additionally, all parties are to discuss with Magistrate Judge Jensen whether a
settlement conference would be useful at this time.
Date: November 17, 2021
Honorable Iain D. Johnston
United States District Judge
Northern District of Illinois
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