In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4286

VICTOR BROOKS,

Plaintiff-Appellant,

v.

MARK ROSS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 2417—James B. Zagel, Judge.

ARGUED JUNE 4, 2009—DECIDED AUGUST 20, 2009

Before FLAUM, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge. This is the second time this court

has been asked to review the fall-out from Ronald

Matrisciano’s testimony before the Illinois Prison

Review Board (“PRB”) in support of inmate Harry

Aleman’s petition for parole. See Matrisciano v. Randle,

569 F.3d 723 (7th Cir. 2009). Normally, employees of the

Illinois Department of Corrections (“IDOC”) do not serve

as advocates for inmates. But this is what happened in
2 No. 08-4286

December 2002 when Matrisciano, an IDOC employee,

appeared before the PRB on behalf of Aleman. The

PRB voted overwhelmingly against Aleman, with PRB

member Victor Brooks providing the sole vote in his

favor. Because of Aleman’s notoriety, however, the

media took an interest in the hearing and in Matrisciano’s

role in it. See People v. Aleman, 729 N.E.2d 20 (Ill. App. Ct.

2000). In the wake of that publicity, the director of the

IDOC, Donald N. Snyder, demoted Matrisciano and

initiated an investigation into the parole incident. About

three years later, Matrisciano and Brooks were indicted

for official misconduct and wire fraud in connection

with the Aleman hearing. Both were acquitted.

Brooks became convinced that he was the victim of a

conspiracy to prosecute him. He filed the present

lawsuit in state court against Mark Ross, who had prepared a report for the Illinois State Police on the

incident, and against Joseph Ponsetto, Edward Carter,

Jorge L. Montes, Norman M. Sula, and Kenneth D. Tupy,

all of whom played a role in the actions against Brooks.

Invoking 42 U.S.C. § 1983, Brooks raised a number

of constitutional and state-law claims against the defendants. Defendants removed the suit to federal court, and

then filed an all-encompassing motion to dismiss, on

grounds of lack of subject-matter jurisdiction, sovereign

immunity, absolute immunity, public-official immunity,

absolute prosecutorial immunity, testimonial immunity,

failure to state a claim, and the statute of limitations.

The district court dismissed for failure to state a claim,

and the case has now reached this court. We affirm.
No. 08-4286 3

I

Brooks joined the IDOC in 1977, and in 1980, he befriended Matrisciano, a fellow employee. In 1995,

Governor Jim Edgar appointed Brooks to the PRB, and he

was reappointed by Governor George Ryan in 2001. One

of the PRB’s functions is to make parole decisions for

certain classes of IDOC inmates. At one such hearing in

December 2002, Matrisciano appeared and presented a

statement in favor of inmate Harry Aleman’s parole.

Matrisciano’s views, however, did not carry the day; only

Brooks, out of the eleven PRB members present, voted in

favor of Aleman.

Matrisciano’s testimony before the PRB caused some

controversy. Six days later, George de Tella, Associate

Director at the IDOC, demoted Matrisciano. (Our earlier

case arose out of this action: Matrisciano filed a lawsuit

asserting that his demotion violated his First Amendment

rights, but this court affirmed the grant of summary

judgment to the defendants in that case. Matrisciano,

supra.) Some time around January 2003, the IDOC referred

its investigation of wrongdoing to the State Police, with

defendant Mark Ross serving as the case agent. Over the

course of his investigation, Ross interviewed various

people, including Aleman, IDOC employee Nancy L.

Miller, and PRB members Jorge L. Montes and Norman M.

Sula. Assistant Attorneys General Joseph Ponsetto

and Edward C. Carter III were present at the Miller

interviews and assisted Ross at one of them. Ross released several investigative reports about his case, noting

in a 2003 report that “Matrisciano and an unknown
4 No. 08-4286

member of the parole board, had accepted payment to

speak favorably on behalf of inmate Harry Aleman at a

parole hearing for Aleman.” A January 2005 report specifically named Brooks as that PRB member, but

Ross’s investigation concluded with a report issued in

November 2005 that refrained from identifying the PRB

member who had accepted bribes. On December 9, 2005,

Brooks and Matrisciano were indicted by a grand jury and

charged with official misconduct and wire fraud in connection with the Aleman hearing. They were both acquitted on March 19, 2007, after a bench trial.

Brooks then filed this lawsuit on March 18, 2008, in the

Circuit Court of Cook County, alleging violations under

42 U.S.C. § 1983 as well as state law. Brooks named as

defendants Ross, Ponsetto, Carter, Montes, Sula, and Tupy

(PRB counsel), as well as Illinois Attorney General Lisa

Madigan and other unnamed or unknown state officials.

Citing the federal claims, defendants removed the case

to federal court. See 28 U.S.C. § 1441. (Sula was not part of

the initial notice to remove, because it was unclear at

the time whether he had properly been served.) Defendants then filed a motion to dismiss, which was granted

in part, and Attorney General Lisa Madigan was dismissed from the case. Brooks parried with an amended

complaint, which alleged that the defendants had

deprived Brooks of due process and had conspired to

do so, and also raised state-law theories of malicious

prosecution, civil conspiracy, and intentional infliction

of emotional distress (“IIED”). Defendants again filed a

motion to dismiss based on untimeliness, sovereign

immunity, absolute immunity, public official immunity,
No. 08-4286 5

prosecutorial immunity, and failure to state a claim. The

district court granted the motion, relying on the last of

these grounds. It either declined to rule on or rejected

defendants’ other arguments. Plaintiff has now appealed,

and defendants both defend the district court’s ruling

and offer a number of other reasons why its judgment

should be affirmed.

II

This court reviews a dismissal under Rule 12(b)(6) for

failure to state a claim de novo. Tamayo v. Blagojevich, 526

F.3d 1074, 1081 (7th Cir. 2008). In analyzing the case, we

may affirm on any ground contained in the record. Bennett

v. Spear, 520 U.S. 154, 166 (2002). We elect to examine

the issues of timeliness, sovereign immunity, and proper

pleading in this opinion. Because we find these issues

sufficient to resolve the case, we need not reach defendants’ arguments about absolute immunity, public

official immunity, or prosecutorial immunity.

A

The district court did not explicitly address the defendants’ statute of limitations argument, but because we

find it potentially dispositive of at least some parts of

the case, we consider it first. A plaintiff in Illinois must

pursue a personal injury action within 2 years from the

accrual of the claim. 735 ILCS 5/13-202. Brooks’s § 1983

claims follow suit. See Wallace v. Kato, 549 U.S. 384, 387

(2007) (“Section 1983 provides a federal cause of action, but
6 No. 08-4286

in several respects relevant here federal law looks to the

law of the State in which the cause of action arose. This is

so for the length of the statute of limitations: It is that

which the State provides for personal-injury torts.”). As

noted above, Brooks was indicted on December 9, 2005,

and acquitted on March 19, 2007. He filed his initial

complaint on March 18, 2008. If his claims run from

the time of indictment, they are untimely. If they run

from the time of acquittal, the opposite is true.

Defendants claim that Brooks’s federal § 1983 conspiracy

and his state-law civil conspiracy and IIED claims are

barred by the statute of limitations because they accrued

at the time of the indictment. They concede, however,

that the state-law malicious prosecution and § 1983 due

process claims are not time-barred. This is so because

the former has as one of its elements the termination of a

prosecution in the defendant’s favor. Brooks’s § 1983

due process claim essentially contests the fairness of his

prosecution. It is thus similar to his malicious prosecution claim, and “claims resembling malicious prosecution do not accrue until the prosecution has terminated

in the plaintiff’s favor.” Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 896 (7th Cir. 2001).

Therefore, that claim is not time-barred either.

Plaintiff has two responses to defendants’ timeliness

arguments. First, he contends that the court should not

rule on a statute of limitations defense in response to a

motion to dismiss. Second, he appeals to Illinois’s continuing tort rule, which holds that when “a tort involves

a continuing or repeated injury, the limitations period
No. 08-4286 7

does not begin to run until the date of the last injury or

the date the tortious acts cease.” Belleville Toyota v. Toyota

Motor Sales, U.S.A., 770 N.E.2d 177, 190 (Ill. 2002). Brooks

believes that his entire prosecution constitutes a continuing tort.

While complaints typically do not address affirmative

defenses, the statute of limitations may be raised in a

motion to dismiss if “the allegations of the complaint

itself set forth everything necessary to satisfy the affirmative defense.” United States v. Lewis, 411 F.3d 838, 842

(7th Cir. 2005). (Technically, one might see this as a

motion for judgment on the pleadings under Rule 12(c)

rather than a motion under Rule 12(b)(6), but the

practical effect is the same.) We find it appropriate here

to consider the statute of limitations because the

relevant dates are set forth unambiguously in the complaint. It is also clear that the continuing tort rule

does not apply in this case. The Supreme Court of Illinois

has stated that “where there is a single overt act from

which subsequent damages may flow, the statute begins

to run on the date the defendant invaded the plaintiff’s

interest and inflicted injury, and this is so despite the

continuing nature of the injury.” Feltmeier v. Feltmeier, 798

N.E.2d 75, 85 (Ill. 2003). The single overt act here is

Brooks’s indictment, even if the damages that Brooks

suffered may have continued throughout his trial. We

therefore find Brooks’s § 1983 conspiracy claims and

his state-law civil conspiracy and IIED claims time-barred.
8 No. 08-4286

B

While defendants concede that Brooks’s state-law

malicious prosecution was not time-barred, they argue

that it is barred by sovereign immunity. The Illinois

State Lawsuit Immunity Act stipulates that tort suits

against the State must be pursued in the Illinois Court of

Claims. 705 ILCS 505/8(d). This statute constitutes a

partial waiver of sovereign immunity, providing Brooks

with a court in which to pursue his state-law claim. It

does, however, leave intact sovereign immunity for statelaw claims pursued in federal court.

In this case, Brooks has chosen to sue employees of

the State of Illinois rather than the State itself. An employee’s conduct can be imputed to the State if “it is

alleged that the State’s agent acted in violation of

statutory or constitutional law or in excess of his authority.” Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001).

The district court found that sovereign immunity did not

apply to the state-law claims in this case because Brooks

alleged that the state agents acted in violation of the

Constitution.

Richman actually supports a contrary result. In that

case, the district court held that sovereign immunity did

not apply because it found that the state-law tort claim

at issue was not dependent on the alleged constitutional

violation, but instead on a theory of wilful and wanton

negligence. We reversed and found that the deputies’

actions were within the scope of their authority for purposes of sovereign immunity. Id. at 442. Here, Brooks

has pleaded both state-law and constitutional claims;
No. 08-4286 9

however, the former are not dependent on the latter.

Brooks’s malicious prosecution claim does not fall

under the exception to sovereign immunity for state

officials who have acted in excess of their authority,

because “there are no allegations that the defendant

was acting for a purpose unrelated to his employment.”

Id. As a result, Brooks’s malicious prosecution claim

is barred by sovereign immunity.

C

All that remains is Brooks’s § 1983 due process

claim. The primary ground on which the district court

dismissed this claim was that Brooks had failed adequately to plead personal involvement, as his complaint stated that “one or more of the Defendants” had

engaged in certain acts or deprived him of his constitutional rights. The district court was correct to point out

that Brooks often uses this vague phrasing, which does not

adequately connect specific defendants to illegal acts.

See Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986)

(“An individual cannot be held liable in a § 1983 action

unless he caused or participated in an alleged constitutional deprivation.”) (emphasis in original).

Some parts of Brooks’s complaint, however, do specify

a particular defendant as having engaged in certain acts.

Paragraphs 70-71, 80, 84-85, 87, 88-90, and 92-93 of the

complaint describe defendant Ross as producing various

investigative reports, one of which named Brooks. In

Paragraphs 84 and 85, Montes and Sula are named as
10 No. 08-4286

having participated in interviews conducted by Ross.

Ponsetto and Carter are referenced in Paragraphs 89-91 as

having either been present or having been present and

assisted in interviews of Miller conducted by Ross or

another investigator.

The question before us is whether these factual allegations provide sufficient notice to defendants of Brooks’s

claims. This requires us to analyze the Supreme Court’s

recent decisions in this area, including its most recent

pronouncement in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

We begin with Rule 8, which states in relevant part:

“A pleading that states a claim for relief must contain: . . .

a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a). The

Rule reflects a liberal notice pleading regime, which is

intended to “focus litigation on the merits of a claim”

rather than on technicalities that might keep plaintiffs

out of court. Swierkiewicz v. Sorema N.A., 534 U.S. 506,

514 (2002).

In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the

Court turned its attention to what was required of plaintiffs at the pleading stage. It concluded that plaintiffs’

“[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Id. at 555. The Court

was careful to note that this did not impose a probability requirement on plaintiffs: “a well-pleaded complaint may proceed even if it strikes a savvy judge that

actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556. The Court

did require, however, that the plaintiffs’ claim be “plausi-
No. 08-4286 11

ble.” In other words, “it simply calls for enough facts to

raise a reasonable expectation that discovery will reveal

evidence” supporting the plaintiff’s allegations. Id.

Any doubt that Twombly had repudiated the general

notice-pleading regime of Rule 8 was put to rest two

weeks later, when the Court issued Erickson v. Pardus,

551 U.S. 89, 93 (2007). Erickson reiterated that “[s]pecific

facts are not necessary; the statement need only give

the defendant fair notice of what the . . . claim is and

the grounds upon which it rests” (internal quotation

marks omitted) (omission in original). This court took

Twombly and Erickson together to mean that “at some

point the factual detail in a complaint may be so

sketchy that the complaint does not provide the type

of notice of the claim to which the defendant is entitled

under Rule 8.” Airborne Beepers & Video, Inc. v. AT&T

Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

This continues to be the case after Iqbal. That case clarified that Twombly’s plausibility requirement applies across

the board, not just to antitrust cases. In addition, Iqbal

gave further guidance to lower courts in evaluating

complaints. It noted that a court need not accept as true

“legal conclusions[, or t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.” We understand the Court in Iqbal to be

admonishing those plaintiffs who merely parrot the

statutory language of the claims that they are pleading

(something that anyone could do, regardless of what

may be prompting the lawsuit), rather than providing

some specific facts to ground those legal claims, that
12 No. 08-4286

they must do more. These are the plaintiffs who

have not provided the “showing” required by Rule 8.

So, what do we take away from Twombly, Erickson, and

Iqbal? First, a plaintiff must provide notice to defendants

of her claims. Second, courts must accept a plaintiff’s

factual allegations as true, but some factual allegations

will be so sketchy or implausible that they fail to provide

sufficient notice to defendants of the plaintiff’s claim.

Third, in considering the plaintiff’s factual allegations,

courts should not accept as adequate abstract recitations

of the elements of a cause of action or conclusory legal

statements.

Returning to the case at hand, we note that Brooks has

alleged that the defendants engaged in a variety of activities: Ross produced investigative reports; Montes and

Sula gave interviews; and Ponsetto and Carter were

present and assisted in interviews. The Court in

Twombly said that plaintiffs’ allegations there of parallel

conduct were “consistent with conspiracy, but just as

much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.” Twombly, 550 U.S. at 554.

The Court found this insufficient to defeat a motion

under Rule 12(b)(6). Id. The same is true here. The

behavior Brooks has alleged that the defendants

engaged in is just as consistent with lawful conduct as

it is with wrongdoing. Without more, Brooks’s allegations are too vague to provide notice to defendants of the

contours of his § 1983 due process claim.
No. 08-4286 13

Paragraph 102, in contrast, does not suffer from the

deficiencies that characterize the rest of Brooks’s complaint. It reads as follows:

Plaintiff is informed, believes and alleges that the

Defendants while acting in concert with other State of

Illinois officials and employees of the Attorney General’s Office, Department of Corrections and Prisoner

Review Board did knowingly, intentionally and maliciously prosecute Plaintiff and Ronald Matrisciano

in retaliation for Plaintiff and the said Ronald

Matrisciano exercising rights and privileges under

the Constitutions and laws of the United States and

State of Illinois.

In this paragraph, Brooks adequately pleads personal

involvement, because he specifies that he is directing this

allegation at all of the defendants. He also describes

unlawful conduct, because it is not lawful to prosecute

someone maliciously in retaliation for that person’s

exercising her constitutional rights. Nonetheless, this

paragraph fails under Iqbal, because it is merely a

formulaic recitation of the cause of action and nothing

more. It therefore does not put the defendants on notice

of what exactly they might have done to violate

Brooks’s rights under the Constitution, federal law, or

state law.

Because Brooks has failed to ground his legal conclusions in a sufficiently plausible factual basis, we conclude

that the district court was correct to grant summary

judgment on this claim as well.

* * *
14 No. 08-4286

For these reasons, we AFFIRM the judgment of the

district court.

8-20-09