Schimandle v. DeKalb County Sheriff's Office et al
MEMORANDUM Opinion and Order; The motion to dismiss 26 is denied. Defendants are given until October 7, 2022, to answer the complaint and to file a Rule 12(c) motion. See the attached order for details. Signed by the Honorable Iain D. Johnston on 8/1/2022: (yxp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 3:21-cv-50477
Honorable Iain D. Johnston
DeKalb County Sheriff’s Office, and
MEMORANDUM OPINION AND ORDER
On February 24, 2022, Plaintiff filed a First-Amended Complaint, containing
four counts. Dkt. 25. The first count alleges a claim labeled “False Arrest Via the
Fourth and Fourteenth Amendments.” Dkt. 25, at 12–13. The second count is a
supplemental state-law claim for malicious prosecution. Dkt. 25, at 13. Count III is
for respondeat superior, and similarly, Count IV is for indemnification. Dkt. 25, at
On March 4, 2022, Defendants filed a motion to dismiss the First-Amended
Complaint under Rule 12(b)(6). Dkt. 26. Unsurprisingly, the main focus of
Defendants’ argument was the federal claim in Count I. Initially, the Court believes
that any claim based on the Fourteenth Amendment’s due process clause is a nonstarter. Among other problems with such a claim, Plaintiff was acquitted. Having
analyzed the briefing, the Court gets the sense that everybody agrees, and that
Plaintiff’s claim is really focused on a Fourth Amendment false arrest.
As to the false arrest under the Fourth Amendment, among other things,
Defendants argue that this claim fails because Plaintiff was not detained without
legal process. Dkt. 26, at 7. To remove the double negative, Plaintiff was arrested
with legal process because an arrest warrant was issued. Id. Understandably,
Defendant relies on Bianchi v. McQueen, 818 F.3d 309, 321 (7th Cir. 2015). The
Court says “understandably” because this decision eviscerates Plaintiff’s Fourth
Amendment false arrest claim. Unfortunately, Plaintiff’s brief in opposition never
confronts this aspect of the Bianchi decision. Dkt. 30. Plaintiff just ignores the
argument, although he addresses other aspects of the Bianchi decision. Dkt. 30, at
8. In reply, Defendants understandably highlight Plaintiff’s utter failure to address
what appears to be a dispositive argument as to the main claim. Dkt. 35, at 7. As
Defendants note, “Plaintiff does not even address this holding of Bianchi in his
Response or attempt to explain why the binding precedent would not apply in this
case.” Id. (emphasis added). At this point, it would seem Defendants have
checkmated Plaintiff. Game over.
But there’s a problem. In the short time that Bianchi has existed, it appears
to this Court to be no longer good law. Supreme Court precedent appears to have
overtaken the validity of Bianchi. Notably, the Supreme Court’s decision in Manuel
v. City of Joliet, 137 S. Ct. 911, 917–18 (2017) appears to have completely gutted the
entire rationale of Bianchi. And to some extent at least one other subsequent
Seventh Circuit case indicates that the rationale of Bianchi is no longer good law.
See Lewis v. City of Chicago, 914 F.3d 472, 476 (7th Cir. 2019) (noting that the
“Supreme Court superseded this circuit precedent in Manuel I” but not explicitly
overruling Bianchi itself).
Nowhere, however, does the Seventh Circuit explicitly announce that Bianchi
has been overruled by Manuel I. So, the Court finds itself in a dilemma. Again,
Defendants have raised a seemingly dispositive argument based upon a case that
has not been explicitly overruled. And Plaintiff has failed to address this argument.
Of course, failing to address an argument usually results in waiver. Reck v. Wexford
Health Sources, Inc., 27 F.4th 473, 485 n.30 (7th Cir. 2022); United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We repeatedly have made clear
that perfunctory and undeveloped arguments, and arguments that are unsupported
by pertinent authority, are waived (even where those arguments raise
But the movant has the burden on a Rule 12(b)(6) motion, Marcure v. Lynn,
922 F.3d 625, 631 (7th Cir. 2021), and the failure of an opponent to respond does not
automatically result in a Rule 12(b)(6) motion being granted, see Robinson v.
Waterman, 1 F.4th 480, 483 (7th Cir. 2021). Further, even when both parties have
agreed to an incorrect proposition of law, a court is not bound to follow such a
proposition in contravention of the proper standard. See Dimidowich v. Bell &
Howell, 803 F.2d 1473, 1477 n.1 (9th Cir. 1986); Twohy v. First Nat’l Bank of
Chicago, 758 F.2d 1185, 1190 (7th Cir. 1985). This puts the Court in at least two
conflicting dilemmas. First, a party cannot count on a court to pick out and argue
correct legal principles on its own without the benefit of the adversarial process and
without allowing any opportunity for the affected party to be heard on the question.
McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010). Without briefing on an
issue, courts run the risk of an improvident and ill-advised opinion, as courts rely
on the adversarial process. Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007).
Second, as Judge Chang has stated, “In a hierarchical judicial system, it is for the
court of appeals, not a lower trial court, to overrule a prior holding of the appellate
court.” Levin v. Madigan, 41 F. Supp. 3d 701, 704 (N.D. Ill. 2014); see also Olson v.
Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir. 1986). But if
events after the last decision by the higher court approving a doctrine—especially
later decisions by that court—make it almost certain that the higher court would
repudiate the doctrine if given a chance to do so, the lower court is not required to
adhere to the doctrine. Olson, 806 F.2d at 734.
The Court is firmly convinced that, after Manuel I, the holding of Bianchi is
no longer good law. But this Court has been known to be wrong even when it was
firmly convinced it was correct. Moreover, the Court has not had adversarial
briefing. Critically, Defendants have not been given an opportunity to respond to
the Court’s firm conviction. So, what’s the Court supposed to do?
In light of Manuel I and Lewis, the Court denies Defendants’ motion to
dismiss under Rule 12(b)(6). Defendants must answer the First-Amended
Complaint. But after answering the First-Amended Complaint, Defendants should
file a motion for judgment on the pleadings under Rule 12(c), if, after analyzing
Manuel I and Lewis, they believe Bianchi is still viable. Indeed, if Defendants
believe other arguments—including qualified immunity—provide a basis for a Rule
12(c) motion, Defendants are free to raise those arguments, especially with the
understanding that the denial of a Rule 12(c) motion based on qualified immunity is
The Court fully understands that this all looks like it is asking for a motion
to reconsider. It gets that. But under these very unusual circumstances, this seems
like the best approach to address the issue and tee up a possible resolution by the
Seventh Circuit after full briefing.
The motion to dismiss  is denied. Defendants are given until October 7,
2022, to answer the complaint and to file a Rule 12(c) motion.
Date: August 1, 2022
Honorable Iain D. Johnston
United States District Judge
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