IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOMINIC MILTON and ) 

CHRISTINE EARNEST, )

)

Plaintiffs, ) No. 11 C 7872

v. )

) Judge Robert W. Gettleman

WAL-MART STORES, INC., )

THE VILLAGE OF GURNEE, )

 MATTHEW NIETFELDT, and )

JEFFREY HAUPTMAN, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Dominic Milton and Christine Earnest have filed a seven-count first amended

complaint against defendants Wal-Mart Stores, Inc., the Village of Gurnee, and two Gurnee

police officers, Matthew Nietfeldt and Jeffrey Hauptman. Plaintiffs, an interracial couple, claim

that defendants engaged in racial profiling when they falsely accused plaintiffs of purchasing a

computer at a Wal-Mart store with counterfeit money and unlawfully entered and searched

plaintiffs’ home and confiscated the computer. Wal-Mart has answered the complaint, and the

Village of Gurnee, Nietfeldt, and Hauptman (collectively, for purposes of this opinion,

“defendants”) have answered Count I (alleging illegal search and seizure) and filed the instant

motion to dismiss the other counts against them (Counts II, III, IV, and VI) pursuant to Fed. R.

Civ. P. 12(b)(6). For the following reasons, that motion is granted. 

Plaintiffs contends that dismissal is inappropriate because a “complaint should not be

dismissed unless it appears beyond a doubt that [they] can prove no set of facts which would

entitle [them] to relief,” citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). But this “no set of

facts” standard is no longer the law, and as the Supreme Court has advised, “the phrase is best
forgotten.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007) (citations omitted); see

Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (“[Twombly]

retooled federal pleading standards, retiring the oft-quoted Conley formulation.”). “It is by now

well established that a plaintiff must do better than putting a few words on paper that, in the

hands of an imaginative reader, might suggest that something has happened to her that might be

redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphases

in original). 

Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(citation and internal quotations omitted). To provide the defendant with “fair notice of what the

claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555, the complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a)(2). In addition, its allegations must plausibly suggest that the plaintiff has a

right to relief and raise that possibility above the “speculative level.” Id. (citing 5 C. Wright &

A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004)). A “plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

Under this standard, Count II of plaintiffs’ amended complaint is insufficient. In that

count, plaintiffs allege that defendants Nietfeldt and Hauptman’s “seizure of [p]laintiffs’

lawfully purchased property from Wal-Mart was intentional and unlawful because it deprived

[p]laintiffs of their rights of substantive due process in violation of the Fifth and Fourteenth

Amendments . . . .” (Emphasis in original.) Unsurprisingly, defendants have interpreted the

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allegations as asserting a substantive due process claim. They therefore argue in their motion to

dismiss that such a claim was impermissible because where a particular Amendment (here, the

Fourth Amendment) “provides an explicit textual source of constitutional protection . . . , that

Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for

analyzing” that claim. Graham v. Connor, 490 U.S. 386, 395 (1989). Rather than responding to

this argument, plaintiffs argue that their complaint in fact alleges a procedural due process claim

for deprivation of their property without due process of law. This contention, however, is belied

by the language of their amended complaint, which unambiguously alleges a substantive due

process claim. Although a plaintiff may attempt to defeat a motion to dismiss by submitting a

brief that adds facts to his complaint—so long as “these facts are consistent with the allegations

in the complaint”—a brief cannot rewrite a complaint, especially where, as here, the brief’s

contentions are inconsistent with the complaint’s allegations. Hentosh v. Herman M. Finch

Univ., 167 F.3d 1170, 1173 n.3 (7th Cir. 1999) (quoting Hrubec v. Nat’l R.R. Passenger Corp.,

981 F.2d 962, 963-64 (7th Cir. 1992)); see Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599

(7th Cir. 2009) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1103 (7th Cir. 1984)

(holding that briefs in opposition to a motion to dismiss may not amend a complaint)). 

But even if the amended complaint invoked “procedural due process” instead of

“substantive due process,” the claim would nonetheless be insufficient. Plaintiffs have failed to

allege that they lacked an adequate state court remedy, and therefore have not stated a plausible

procedural due process claim. The Fourteenth Amendment protects against only those property

deprivations for which the state does not provide due process of law, see Parratt v. Taylor, 451

U.S. 527 (1981), overruled on other ground by Daniels v. Williams, 474 U.S. 327 (1986). The

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complaint is devoid of any allegation that plaintiffs were denied due process. Moreover, as

defendants point out, Illinois provides state court remedies; for example, they could have filed a

state court action for conversion. The amended complaint goes no further than alleging that the

seizure of plaintiffs’ property deprived them “of their rights of substantive due process.” This is

insufficient to allege a procedural due process claim. Count II is dismissed. 

Nor do Count III’s allegations suffice. In Count III, plaintiffs attempt to allege a Monell

claim against defendant Village of Gurnee. See Monell v. Dep’t of Soc. Servs. of New York,

436 U.S. 658, 692 (1978). As defendants correctly point out, however, the complaint alleges

nothing more than the lone incident on which the rest of their complaint is based. Defendants

cite a Ninth Circuit case, Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), for the proposition

that “[l]iability for improper custom[s] may not be predicated on isolated or sporadic incidents; it

must be founded upon practices of sufficient duration, frequency and consistency that the

conduct has become a traditional method of carrying out policy.” That is also the law in this

circuit. See, e.g., Thomas v. Cook Cty., 604 F.3d 293, 303 (7th Cir. 2010) (citing Monell, 436

U.S. at 691-94) (“We are not dealing with an isolated act of an individual employee, which

would be insufficient to establish a widespread custom or practice.”); Gustafson v. Jones, 117

F.3d 1015, 1022 (7th Cir. 1997) (citing Bd. of Cty. Comm’rs of Bryan Cty, Okla. v. Brown, 520

U.S. 397, 404 (1997) (explaining that “isolated incidents” of unconstitutional conduct cannot

show a municipal policy or custom). Because plaintiffs have alleged only one incident, with

their only other allegations consisting of legal labels and conclusions that Gurnee has a

widespread practice of failing to discipline police misconduct, Count III fails to state a

cognizable claim and is therefore dismissed. 

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Count IV, plaintiffs’ 42 U.S.C. § 1981 claim against defendant Village of Gurnee, fares

no better. As defendants note, § 1983 is the “exclusive federal damages remedy for the violation

of the rights guaranteed by § 1981 when the claim is pressed against a state actor.” Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 735 (1989); see Von Zuckerstein v. Argonne Nat’l Lab., 78 F.3d

587, at *1 (table) (7th Cir. 1996) (citing Jett for the principle that “§ 1983 . . . provides the

exclusive federal damages remedy for § 1981 claims against state actors”). Plaintiffs respond

that the Ninth Circuit observed in Fed. of Af.-Am. Contractors v. City of Oakland, 96 F.3d 1204

(9th Cir. 1996), that § 1981 provides an implied right of action against state actors. But this is

not the Ninth Circuit, and plaintiffs have pointed to no authority binding on this court (and the

court has independently located no such authority) that has questioned Jett’s holding. 

Defendants are also correct that plaintiff’s amended complaint fails to state a claim for

intentional infliction of emotional distress (“IIED”) against them in Count VI, which defendant

Wal-Mart has answered. Plaintiffs contend that they have alleged adequate facts to establish

each of the three required elements: (1) defendants’ conduct was extreme and outrageous; (2)

defendants intended to inflict severe emotional distress or at least knew there was a high

probability that their conduct would cause severe emotional distress; and (3) defendants’ conduct

caused severe emotional distress. E.g., McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). As

defendants point out, however, there are no facts alleged that could plausibly rise to the level of

plaintiffs’ having experienced “severe emotional distress.” 

The complaint makes several allegations relevant to plaintiffs’ IIED claim. First, it

alleges that when defendants Nietfeldt and Hauptman entered plaintiffs’ home, seized the

computer they had purchased from Wal-Mart, accused them of stealing, and threatened to arrest

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them, plaintiffs were humiliated and experienced “undue emotional pain and suffering.” In

addition, the complaint alleges that plaintiff Earnest, who was then three months pregnant,

“became emotionally distraught and fearful as she began crying,” that she then “began crying

hysterically and as a result, suffered mental anguish and humiliation.” Further—although this

claim appears to be directed at defendant Wal-Mart—the complaint alleges that plaintiff Milton

felt “scared” and did “not feel[ ] free to leave” when he “learned the police were coming to arrest

him at the direction of Wal-Mart loss prevention.” 

None of these allegations, however, rise to the level of “severe emotional distress” (and

none of them appear to concern any actions that defendants Village of Gurnee, Hauptman, or

Nietfeldt took that caused plaintiff Milton to experience severe emotional distress). Illinois

courts have found that “[a]lthough fright, horror, grief, shame, humiliation, worry, etc. may fall

within the ambit of the term ‘emotional distress,’ these mental conditions alone are not

actionable.” Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (1999) (citations and

internal quotation marks omitted). Rather, “[t]he law intervenes only where the distress inflicted

is so severe that no reasonable man could be expected to endure it.” Id. Plaintiffs’ allegations

are, under this standard, insufficient to state an IIED claim. See Honaker v. Smith, 256 F.3d

477, 495 (7th Cir. 2001) (“[W]hen plaintiffs have complained that a defendant’s actions caused

them simply to become annoyed, frustrated, stressful, distressed, embarrassed, humiliated or

nervous, those plaintiffs have been found not to have stated a claim under Illinois law.”). 

Defendants’ motion is therefore granted as to Count VI. 

For the foregoing reasons, the court grants defendants’ motion to dismiss Counts II, III,

IV, and VI against them. 

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ENTER: May 25, 2012

__________________________________________

Robert W. Gettleman

United States District Judge

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