McIntosh v. Kelly et al

Filing 192

ORDER: The Motion to Dismiss filed by Defendants City of Fairview Heights, Nicholas Gailius, Jeff Stratman, Timothy Mueller, and Jeff Blair (Doc. 155 ) is DENIED as to Counts 1, 2, and 3 and GRANTED as to Counts 4, 7, and 8. Counts 4 and 7 are DISM ISSED without prejudice and Count 8 is DISMISSED with prejudice. Further, the Court sua sponte DISMISSES without prejudice Counts 5 and 6 for failure to state a claim for relief. Defendant Timothy Mueller is DISMISSED without prejudice and the Clerk of Court is DIRECTED to TERMINATE him as a party. Signed by Judge Staci M. Yandle on 3/16/2020. (ksp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DALLAS MCINTOSH,
Plaintiff,
vs.
BRENDAN F. KELLY, et al.,
Defendants.

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Case No. 16-cv-1018-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Dallas McIntosh, an inmate of the Illinois Department of Corrections, filed this
action pursuant to 42 U.S.C. § 1983 related to a traffic stop and subsequent prosecution that led to
his current incarceration. He claims he was unlawfully stopped, searched, and seized in violation
of his federal and state constitutional rights. This matter is before the Court for consideration of
the Motion to Dismiss filed by Defendants City of Fairview Heights, Nicholas Gailius, Jeff
Stratman, Timothy Mueller, and Jeff Blair. (Doc. 155). Plaintiff filed an opposition to the Motion.
(Doc. 171).
Background
McIntosh makes the following allegations in the Third Amended Complaint (Doc. 39):
McIntosh was driving his car on September 25, 2012 in Fairview Heights, Illinois when he was
pulled over by Stratman, a Fairview Heights police officer, for allegedly failing to signal while
changing lanes. While Stratman was reviewing McIntosh’s paperwork, Blair arrived with a canine
unit and conducted a drug-sniff of McIntosh’s car. McIntosh does not remember what happened
immediately afterwards but does recall waking up in the hospital and learning that he had been
shot multiple times and had been in a coma. McIntosh was indicted on ten felony counts and
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prosecuted by St. Clair County States Attorney Kelly and Assistant States Attorney Piper October
19, 2012. He ultimately pled guilty and was sentenced on January 29, 2015.
McIntosh alleges the traffic stop was motivated by his race. Additionally, he alleges that
Kelly, Gailius, Piper, Mueller, Stratman, and Blair engaged in a conspiracy between the Fairview
Heights Police Department and the State’s Attorney’s Office to conceal the misconduct of
Stratman and Blair and to fabricate probable cause for the traffic stop. He asserts the following
claims related to those events:
Count 1:

Count 2:

Fourteenth Amendment equal protection claim against Stratman and
Blair for stopping Plaintiff and searching him and/or his vehicle
without probable cause.

Count 3:

Fourteenth Amendment equal protection claim against the City of
Fairview Heights, Illinois, including Gailius, for maintaining a
policy, custom or practice of stopping individuals without probable
cause based on racial animus.

Count 4:

Conspiracy claims against Defendants Stratman, Blair, Gailius,
Mueller, and the City of Fairview Heights for working together to
deprive Plaintiff of his constitutional rights and covering up their
misconduct in connection with the traffic stop, search and seizure
that occurred on September 25, 2012. 1

Count 5:

State law claim against Defendants Stratman and Blair for the
unlawful stop, search, and seizure of Plaintiff on September 25,
2012, in violation of Article I, Section 6 of the Illinois Constitution.

Count 6:

State law claim against Defendants Stratman and Blair for stopping
Plaintiff and searching him and/or his vehicle without probable
cause based on racial animus on September 25, 2012, in violation of
Article I, Section 2 of the Illinois Constitution.

Count 7:

1

Fourth Amendment claim against Stratman and Blair for the
unlawful stop, search, and seizure of Plaintiff on September 25,
2012.

State law claim against Defendant Gailius and the City of Fairview
Heights, Illinois for maintaining a policy, custom, or practice of

McIntosh was proceeding against Defendants Kelly and Piper in Count 4, but they have been dismissed.

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stopping individuals without probable cause based on racial animus,
in violation of Article I, Section 2 of the Illinois Constitution.
Count 8:

State law claim for fraud against Defendant Stratman for knowingly
and falsely stating that Plaintiff had committed an Illinois Vehicle
Code violation in order to induce Plaintiff to submit to the unlawful
search and seizure.

(Docs. 38 and 89).
Discussion
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint
must “state a claim to relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group, Inc.,
778 F.3d 635, 639 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When considering a motion to dismiss, the Court accepts all
factual allegations in the complaint to be true and draws all reasonable inferences in the light most
favorable to the plaintiff. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010).
Additionally, pro se complaints are to be liberally construed. Luevano v. Wal-Mart Stores, Inc.,
722 F.3d 1014, 1027 (7th Cir. 2013).
Judicial Estoppel
As an initial matter, Plaintiff contends the arguments raised in Defendants’ Motion are
barred by judicial estoppel. “Judicial estoppel is an equitable concept that prevents parties from
playing ‘fast and loose’ with the courts by prevailing twice on opposing theories.” In re Airdigm
Commc’n, Inc., 616 F.3d 642, 661 (7th Cir. 2010). “Although the Supreme Court has emphasized
that there is no formula for judicial estoppel, it has identified at least three pertinent factors for
courts to examine: (1) whether the party’s later position was clearly inconsistent with its earlier

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position; (2) whether the party against whom estoppel is asserted in a later proceeding has
succeeded in persuading the court in the earlier proceeding; and (3) whether the party seeking to
assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on
the opposing party if not estopped.” Id. (internal citation and quotation marks omitted).
McIntosh contends Defendants’ arguments require the Court to assume a fact other than
the position taken in the criminal proceedings that he was lawfully stopped for failing to signal
when changing lanes. He states his claims are based on the fact that he was unlawfully stopped
and that both factual positions cannot be true. The Court finds Plaintiff’s argument unavailing.
Defendants’ argument, that if there was an unlawful traffic stop on September 25, 2012,
then the constitutional violation accrued at that time, is not “clearly inconsistent” with the position
that there was a lawful traffic stop. Nor are any of their other arguments “clearly inconsistent”
with their earlier position. Thus, judicial estoppel does not bar the arguments raised by Defendants
in the Motion.
Counts 1-4
Statute of Limitations
Defendants contend Counts 1-4 are barred by the applicable two-year statute of limitations.
They assert that McIntosh’s cause of action accrued on September 25, 2012 and that the filing of
this case on September 8, 2016 was long after the statute of limitations had expired. Although “a
complaint need not anticipate and overcome affirmative defenses, such as the statute of
limitations,” a district court may dismiss a claim under Rule 12(b)(6) if the complaint reveals that
the claim is unquestionably untimely. Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860 F.3d
489, 493 (7th Cir. 2017).
The statute of limitations for § 1983 claims is governed by state law. Wallace v. Kato, 549

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U.S. 384, 387 (2007). In Illinois, the applicable statutory period is two years. Id. The accrual
date is determined by federal law and the claim accrues when a plaintiff knows or should have
known that his constitutional rights have been violated. Wallace, 549 U.S. at 388; Savory v. Lyons,
469 F.3d 667, 672 (7th Cir. 2006).
In the Third Amended Complaint, McIntosh alleges that, due to injuries he sustained, he
has no memory of the reason for the traffic stop or the subsequent events. He further alleges that
he did not become aware of the unlawful nature of the traffic stop until his sentencing in 2015,
when he viewed the video recording of the traffic stop. Additionally, he raises issues of equitable
tolling, fraudulent concealment, and equitable estoppel, which he contends are supported by the
factual allegations in the Third Amended Complaint.
It is unclear from the allegations in the Third Amended Complaint whether McIntosh’s
claims are untimely because there is a factual issue as to when he knew or should have known of
the alleged constitutional violations. Accordingly, the motion to dismiss Counts 1-4 as barred by
the statute of limitations is denied at this juncture.
Heck Doctrine
Defendants also argue that Counts 1-4 are barred under Heck v. Humphrey because the
claims necessarily imply the invalidity of McIntosh’s criminal conviction and sentence.
In Heck, the United States Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing the relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
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of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.
512 U.S. 477, 486-87 (1994). If, however, “the plaintiff’s action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.” Id. at 487.
The substance of a prisoner’s section 1983 action must be examined in order to determine
whether success would imply the invalidity of an underlying conviction or sentence. Mordi v.
Zeigler, 870 F.3d 703, 707 (7th Cir. 2017). That is to say, “no matter the relief sought,” “no matter
the target of the prisoner’s suit,” the key question is whether success in the action would
necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005); see also Okoro v. Callagan, 324 F.3d 488, 490 (7th Cir. 2003) (“It is
irrelevant that [plaintiff][ ] disclaims any intention of challenging his conviction; if he makes
allegations that are inconsistent with the conviction’s having been valid, Heck kicks in and bars
his civil suit.”). Thus, whether a claim is barred by Heck turns on the plaintiff’s allegations.
Contrary to Defendants’ assertion, the claims in Counts 1-3 do not necessarily impugn
McIntosh’s guilty plea or sentence as he is not seeking any form of relief that would undermine
his guilty pleas or conviction. See, Wallace v. Kato, 549 U.S. 384 (2007); Mordi, 870 F.3d at 707708. To the extent the claims in Counts 1-3 pertain only to the alleged unlawful traffic stop on
September 25, 2012 and policies, customs, or practices in existence at that time, they do not
challenge the validity of McIntosh’s guilty plea or sentence. “All he can hope for in his Fourth
Amendment case would be some form of damages for the loss of his time and the dignitary insult
inflicted by racial discrimination.” Id. at 708. As such, the claims in Counts 1-3 are not Heck-

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barred. 2
However, Count 4 is Heck-barred. In Count 4, McIntosh alleges an unlawful conspiracy
that occurred after the traffic and carried through the prosecution and sentencing. (Doc. 39, pp.
20-40). He claims that as a result of the defendants’ alleged misconduct, he was misled into a
guilty plea. Specifically, he alleges: the failure to signal when changing lanes was offered as the
probable cause for the traffic stop in the factual basis statement for his guilty plea (Id., p. 6); the
statements, testimony, and reports that falsely stated he had been stopped for failing to signal when
changing lanes, which were the product of the conspiracy, were meant to be interpreted by him as
the probable cause for a legal seizure (Id., p. 8); and that he “did in-fact rely on all the
representations as establishing probable cause for [his] seizure prior to the plea of guilty.” (Id.).
Although he seeks monetary damages, he alleges he has been and will continue to be irreparably
injured by the conduct of the Defendants (Id., p. 41), indicating a continuing injury. Based on
these allegations, a success on the conspiracy claim would imply the invalidity of McIntosh’s
guilty plea, and the claim is therefore barred under Heck. Accordingly, the Motion to Dismiss is
granted as to Count 4 but denied as to Counts 1-3.
Counts 5-7
Statute of Limitations
Defendants also contend the Illinois constitutional claims in Counts 5-7 are barred by the
applicable five-year statute of limitations. They assert the claims accrued on September 25, 2012
but were not raised in this action until the filing of the Third Amended Complaint in 2018. Illinois
constitutional claims are governed by the five-year statute of limitations set forth in Section 13205 of the Illinois Code of Civil Procedure. 735 ILCS 5/13-205; Raintree Homes, Inc. v. Village

2

If McIntosh seeks damages related to the claims in Counts 1-3 for events that occurred after September 25, 2012
(i.e. the prosecution, his guilty plea, his incarceration), the Heck bar would be implicated.

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of Kildeer, 302 Ill.App.3d 304, 307 (1999). Under Illinois’ discovery rule, “a cause of action
accrues, and the limitations period begins to run, when the party seeking relief knows or reasonably
should know of an injury and that it was wrongfully caused. Feltmeier v. Feltmeier, 798 N.E.2d
75, 89 (Ill. 2003). As previously noted, a factual issue as to when McIntosh knew or should have
known of the alleged constitutional violations precludes a determination on this issue at this stage.3
Accordingly, the Motion is also denied as to Counts 5-7.
Failure to State a Claim – Counts 5-7
In Counts 5 and 6, McIntosh attempts to bring state law claims for violations of the Illinois
Constitution. However, there is no private right of action or express remedy under the Illinois
Constitution for such claims. Shevlin v. Rauner, 3:18-cv-02076-NJR, 2019 WL 1002367, at *2
(S.D. Ill. Mar. 1, 2019) (collecting cases). Further, his federal law claims (Counts 1 and 2) provide
an adequate remedy. The Court will, therefore, sua sponte dismiss Counts 5 and 6.
Defendants seek dismissal of the Monell state law claim in Count 7 because no such claim
exists under Illinois law. McIntosh concedes that point but contends his claim is incorrectly
interpreted. He states he intended to bring a respondeat superior liability claim pertaining to his
state law claims. A respondeat superior liability claim, while not permissible in a § 1983 action,
is allowed under Illinois state law. Mattila v. City of Belleville, 539 N.E.2d 1291, 1293 (Ill.App.
1989). As a general rule, a municipality may be held liable for the tortious acts of police officers
acting within the scope of their employment. Brown v. King, 767 N.E.2d 357, 360 (Ill.App. 2001).
The Court construes McIntosh’s response as seeking leave to amend the claim in Count 7.
Rule 15(a)(2) provides that “the court should freely give leave when justice so requires.”
Nevertheless, the Court may deny leave to amend for undue delay, bad faith, dilatory motive,

3

Defendants’ motion does not address whether the claims relate back to the original Complaint, but it is not
necessary to address that issue.

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prejudice, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962); Moore v. Indiana, 999 F.2d
1125, 1128 (7th Cir. 1993). Here, a respondeat superior claim presents a different theory of
liability although it does not require additional discovery. However, respondeat superior liability
only applies to state law tort claims, and McIntosh’s state law claims in Counts 5-7 are being
dismissed as previously noted and his state law fraud claim in Count 8 is being dismissed as set
forth below. Because the Court finds there is no valid state law claim to serve as a basis for a
respondeat superior liability against the City of Fairview Heights, the amendment McIntosh seeks
would be futile.
Count 8
Statute of Limitations
Defendants seek dismissal of the state law fraud claim in Count 8 on the grounds that it is
barred by the statute of limitations in the Illinois Governmental and Governmental Employees Tort
Immunity Act. Under § 8-101 of the Illinois Tort Immunity Act, a civil action against a local
public entity or its employees acting within the scope of their employment must be brought within
one year from the date the injury was received. 745 ILCS 10/8-101(a). According to the Third
Amended Complaint, at the latest, McIntosh became aware of the alleged unlawful nature of the
traffic stop and his resulting injuries at the time of his sentencing on January 29, 2015 when he
viewed the video recording. Even if the claim in Count 8 relates back to the filing of the original
Complaint on September 8, 2016, it is untimely under the Illinois Tort Immunity Act and is,
therefore, barred. 4 Accordingly, Count 8 is dismissed.
Disposition
For the foregoing reasons, the Motion to Dismiss filed by Defendants City of Fairview

4

In light of finding the claim is barred by the applicable statute of limitations, the Court need not make a
determination as to Defendants’ argument that Count 8 fails to state a claim for relief.

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Heights, Nicholas Gailius, Jeff Stratman, Timothy Mueller, and Jeff Blair (Doc. 155) is DENIED
as to Counts 1, 2, and 3 and GRANTED as to Counts 4, 7, and 8. Counts 4 and 7 are DISMISSED
without prejudice and Count 8 is DISMISSED with prejudice. Further, the Court sua sponte
DISMISSES without prejudice Counts 5 and 6 for failure to state a claim for relief. Defendant
Timothy Mueller is DISMISSED without prejudice and the Clerk of Court is DIRECTED to
TERMINATE him as a party.
IT IS SO ORDERED.
DATED: March 16, 2020

s/ Staci M. Yandle_____
STACI M. YANDLE
United States District Judge

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