UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

ADAM ROTHEIMER, 

 Plaintiff, 

 v. 

ERIC KALATA, 

Assistant State’s Attorney; 

STEPHEN SCHELLER, 

Assistant State’s Attorney; 

MARC BANGSER, 

Assistant State’s Attorney; 

DAN BROWN, 

Assistant State’s Attorney; 

MICHAEL J. WALLER, 

Former Lake County State’s Attorney; 

PAUL WARNER, Former Lake County 

Sheriff’s Office Detective; 

WILLIS S. WERNER, Former Lake 

County Sheriff’s Office Lieutenant; 

MARK CURRAN, Lake County Sheriff; 

 Defendants. 

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Case No. 12-cv-1629 

Judge John W. Darrah 

MEMORANDUM OPINION AND ORDER 

 Plaintiff Adam Rotheimer filed suit on March 6, 2012, against 

Defendants Eric Kalata, Stephen Scheller, Marc Bangser, Dan Brown, Michael J. Waller 

(collectively, “State’s Attorney Defendants”), Paul Warner, Willis Werner, and Mark 

Curran (collectively, “Sheriff Defendants”). Plaintiff amended his complaint on 

November 19, 2012, alleging five separate counts: (I) a violation of his Fourteenth 

Amendment right to due process, pursuant to 42 U.S.C. § 1983; (II) conspiracy, under 42 

U.S.C. § 1985; (III) malicious prosecution under Illinois state law; (IV) a state law claim 
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of respondeat superior; and (V) a state law claim of indemnification. (Am. Compl. ¶¶ 

36-58.) Defendants move to dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 

12(b)(6). This motion has been fully briefed and is ripe for ruling. 

BACKGROUND 

Plaintiff is a resident of McHenry, Illinois. (Am. Compl. ¶ 1.) On or about 

March 9, 2010, a social worker at Centegra Memorial Hospital in McHenry County, 

Illinois, called Defendant Werner, a detective, and informed Werner that Plaintiff was an 

in-patient resident of the hospital. (Id. ¶ 11.) The social worker explained to Werner that 

Plaintiff had expressed a threat against a judge; Plaintiff apparently told the social worker 

he had developed a romantic relationship with the judge’s daughter and stolen money 

from the judge. (Id. ¶ 12.) Werner informed Judge Brian Hughes, a Lake County Circuit 

Court Judge, of this threat; but Judge Hughes told Werner he did not have a daughter and 

did not understand the threat. (Id. ¶¶ 14-15.) Plaintiff was discharged from Centegra 

Memorial Hospital on or about March 12, 2010. 

That same day, Plaintiff was then charged with threatening a public official, 

arrested, and detained in the Lake County, Illinois jail, where he remained from March 

12, 2010 through April 21, 2010. (Id. ¶¶ 16, 18-19, 29.) Plaintiff challenged the 

jurisdiction of the Lake County court over his charge, and the matter was transferred to 

McHenry County. (Id. ¶¶ 30-31.) The McHenry County State’s Attorney filed a motion 

for entry of a nolle prosequi judgment, and the case against Plaintiff was dismissed on 

July 8, 2010. (Id. ¶ 32.) 
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Plaintiff alleges the actions of Defendants were illegal, in that Defendants did not 

have “jurisdiction to investigate, initiate, arrest or prosecute the Plaintiff.” (Id. ¶ 33.) 

Following dismissal of the charges, Plaintiff filed his lawsuit against Defendants, 

amending the Complaint on November 19, 2012. Defendants argue Plaintiff’s state law 

claims are barred by the applicable statute of limitations, and further assert that the claims 

fail on the basis of prosecutorial immunity and on Plaintiff’s failure to state claims upon 

which relief may be granted. 

LEGAL STANDARD 

To properly assert a claim in a complaint, the plaintiff must present “a short and 

plain statement of the claim showing that the pleader is entitled to relief and a demand for 

the relief sought.” Fed. R. Civ. P. 8. Rule 8 “does not require ‘detailed factual 

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (Iqbal) (quoting Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Twombly)). While a court is to 

accept all allegations contained in a complaint as true, this principle does not extend to 

legal conclusions. Iqbal, 129 S. Ct. at 1949. 

A defendant may file a motion to dismiss a claim under Federal Rule 12(b)(6) for 

failure to state a claim upon which relief may be granted. To defeat a motion to dismiss 

under Rule 12(b)(6), a plaintiff must plead sufficient factual matter to state a claim for 

relief that is “plausible on its face.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. 

at 570). A claim is facially plausible “when the plaintiff pleads factual content that 
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allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 129 S. Ct. at 1949. 

However, “[w]here the well-settled pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct, the complaint has alleged – but it has not 

‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1950. For a claim 

to be plausible, the plaintiff must put forth enough “facts to raise a reasonable expectation 

that discovery will reveal evidence” supporting the plaintiff’s allegations. Brooks v. 

Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Twombly, 550 U.S. at 556). At issue in 

a 12(b)(6) motion is “not whether a plaintiff will ultimately prevail” but whether the 

plaintiff is entitled to present evidence to support the claims alleged. AnchorBank, FSB 

v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011) (internal quotation and citation omitted). 

The defendant may assert a statute of limitations defense in a Rule 12(b)(6) 

motion to dismiss where “the allegations of the complaint itself set forth everything 

necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that 

an action is untimely under the governing statute of limitations.” United States v. Lewis, 

411 F.3d 838, 842 (7th Cir. 2005) (Lewis). 

ANALYSIS 

Statute of Limitations

Defendants first attack Counts III, IV, and V of Plaintiff’s Amended Complaint, 

which allege claims of malicious prosecution, respondeat superior, and indemnification 

under Illinois law. In their Motion to Dismiss, Defendants rely upon the Illinois Local 

Government and Governmental Employees Tort Immunity Act, which provides “[n]o 
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civil action . . . may be commenced in any court against a local entity or any of its 

employees for any injury unless it is commenced within one year from the date that the 

injury was received or the cause of action accrued.” 745 ILCS 10/8-101. “[A] federal 

court applies to state-law claims the same limitations period a state court would apply.” 

Long v. Williams, 155 F. Supp. 2d 938, 943 (N.D. Ill. 2001) (quoting Ellis v. City of 

Chicago, No. 2000 C 2457, 2000 WL 1774084, at *6 (N.D. Ill. Dec. 1, 2000). The 

relevant statute of limitations for the charges brought against Defendants was one year. 

By Plaintiff’s own admissions, the latest his injuries could have accrued was on 

July 8, 2010, when the case was dismissed. (Am. Compl. ¶ 32.) Moreover, Plaintiff fails 

to address the time bar in his response to the motion; “failure to offer any opposition to 

[Defendants’] statute of limitations argument constitute[s] a waiver.” Wojtas v. Capital 

Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007). While statute of limitations 

defenses are not typically raised in a Rule 12(b)(6) motion, the defense is appropriate 

where “a complaint plainly reveals that an action is untimely under the governing statute 

of limitations.” Lewis, 411 F.3d at 842. Therefore, because Plaintiff failed to file these 

state-law claims within one year of the injuries accruing and failed to present any 

argument in response to this defense, Plaintiff’s state-law claims are barred. 

State’s Attorney Defendants and Prosecutorial Immunity

The remaining counts of Plaintiff’s Amended Complaint involve a Section 1983 

due process claim and a Section 1985 conspiracy claim. However, these claims, as they 

are alleged against the State’s Attorney Defendants, are barred by prosecutorial 

immunity. Prosecutors have absolute immunity when “‘initiating a prosecution and . . . 
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presenting the State’s case’ as long as their conduct is ‘intimately associated with the 

judicial phase of the criminal process.’” Boloun v. Williams, Case No. 00 C 7584, 2002 

WL 31426647, at *10 (N.D. Ill. Oct. 25, 2002) (quoting Imbler v. Pachtman, 424 U.S. 

409, 430-31 (1976)). “This immunity shields the prosecutor even if he initiates charges 

maliciously, unreasonably, without probable cause, or even on the basis of false 

testimony or evidence.” Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 

1986). 

Plaintiff contends, in response to the motion to dismiss, that because the State’s 

Attorney Defendants brought charges against Plaintiff in Lake County, as opposed to 

McHenry County, their actions went beyond the scope of their prosecutorial duties, and 

therefore, the State’s Attorney Defendants cannot be protected by prosecutorial 

immunity. (Resp. ¶ 6.) The legal authority cited by Plaintiff (two cases from the Second 

Circuit Court of Appeals) is neither controlling nor supportive of Plaintiff’s position. 

Moreover, Plaintiff’s argument regarding the venue of the underlying criminal action is 

unavailing; while the prosecution moved to change venue from Lake County to McHenry 

County, Plaintiff fails to allege how venue was improper in Lake County. Further, even 

if Plaintiff had properly alleged venue was improper in Lake County, he fails to provide a 

legal basis for how the filing of a criminal charge in the wrong county vitiates the State’s 

Attorney Defendants’ prosecutorial immunity. 

Plaintiff’s allegations of a violation of due process and conspiracy on the part of 

the State’s Attorney Defendants rely upon their charging of Plaintiff and their 

presentation of evidence to a grand jury. The tasks of charging a defendant and putting 
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forth evidence to a grand jury in support of a charge is directly within the scope of the 

State’s Attorney Defendants’ duties as prosecutors. “A prosecutor is absolutely immune 

from suit for all actions and decisions undertaken in furtherance of his prosecutorial 

duties.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012) (citing Imbler v. Pachtman, 

424 U.S. 409, 410 (1976)). Therefore, the claims Plaintiff alleges against the State’s 

Attorney Defendants are barred, as those defendants are entitled to absolute immunity in 

their roles as prosecutors. Thus, Counts I and II of the Amended Complaint are 

dismissed against the State’s Attorney Defendants. 

Count I against Sheriff Defendants

Witness Immunity of Defendant Warner 

Defendants move to dismiss the Section 1983 due process claim, Count I of the 

Amended Complaint, as it is alleged against Defendant Paul Warner, a Lake County 

Sheriff’s Detective, on the basis that Warner is immune from suit as a grand jury witness. 

The only specific facts alleged as to Warner is that Warner, together with Assistant 

State’s Attorney Scheller, “without the jurisdiction to present evidence to a grand jury, 

deliberately mislead the grand jury and deliberately withheld exculpatory evidence from 

the grand jurors obtaining an indictment that was both without jurisdiction and 

unreliable.” (Am. Compl. ¶ 38.) No other information is alleged regarding Warner’s 

role, though Defendants assert in their motion that Warner, as a detective, testified before 

a grand jury relating to Plaintiff’s indictment. Plaintiff fails to allege any specific actions 

taken on the part of Warner in the Amended Complaint. However, Warner’s “grand jury 

testimony cannot form the basis for any Section 1983 claims because of absolute 
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immunity.” Mendoza v. City of Chicago, Case No. 09 C 5866, 2012 WL 3206602, at *2 

(N.D. Ill. July 31, 2012) (citing Rehberg v. Paulk, 132 S.Ct. 1497 (2012)); see also 

Khorrami v. Rolince, 539 F.3d 782 (7th Cir. 2008) (citing Briscoe v. LaHue, 460 U.S. 

325 (1983), and noting that “the Supreme Court held that witnesses who allegedly gave 

perjured testimony at a criminal trial were absolutely immune from later suit under 42 

U.S.C. § 1983. This court [the Seventh Circuit] recognized that the absolute immunity 

extends to a police officer's participation in pretrial proceedings.”) (citations omitted). 

Thus, to the extent that the Section 1983 claim is alleged against Warner in his role as a 

grand jury witness, Warner is entitled to immunity. 

In Plaintiff’s response to the motion to dismiss, Plaintiff’s single attempt to rebut 

this point simply states, “[t]he same jurisdictional argument applies to the law 

enforcement defendants, WARNER, WERNER and CURRAN.” (Resp. ¶ 14.) Beyond 

the fact that Plaintiff’s allegations regarding so-called “jurisdictional” or venue issues are 

undeveloped and unavailing, Plaintiff ignores the issue of witness immunity. “[W]hen 

presented with a motion to dismiss, the non-moving party must proffer some legal basis 

to support his cause of action.” Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 

(7th Cir. 1995) (citations omitted). Plaintiff failed to present any sort of counterargument 

regarding the deficiency of the claim against Warner in Count I. Count I against 

Defendant Warner is dismissed. 

Qualified Immunity of Defendant Werner 

 Next, Defendants seek to dismiss Count as it is alleged against Defendant Willis 

Werner, a lieutenant with the Lake County Sheriff’s Office. The only facts alleged 
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against Defendant Werner in the Amended Complaint are that: (1) Werner was informed 

by a social worker at Centegra Memorial Hospital that Plaintiff had expressed a threat 

against a judge; (2) Werner stated in a report he prepared that Plaintiff told the social 

worker that “[Plaintiff] had developed a romantic relationship with the judge’s daughter 

and stolen money from . . . the judge”; and (3) Werner informed Judge Hughes of this 

threat against him. (Am. Compl. ¶¶ 11-15.) 

 A state official, such as Lieutenant Werner, is entitled to qualified immunity from 

some constitutional claims. “Such officials are not civilly liable unless their conduct 

violated clearly established statutory or constitutional rights of which a reasonable person 

in their position would have been aware.” Rusinowski v. Village of Hillside, 835 F. Supp. 

2d 641, 650 (N.D. Ill. 2011) (citing Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th 

Cir. 2000)). Plaintiff fails to allege in the Amended Complaint how Werner’s actions, 

described above, violated Plaintiff’s constitutional rights in any way. Again, in his 

response, Plaintiff’s only attempt to address the issue of the claim against Werner is to 

state “[t]he same jurisdictional argument applies to the law enforcement defendants, 

WARNER, WERNER and CURRAN.” (Resp. ¶ 14.) Therefore, because Werner is 

entitled to qualified immunity and, further, because Plaintiff fails to rebut Defendants’ 

position regarding immunity, Count I, as it is alleged against Defendant Werner, is 

dismissed. 

Failure to State a Claim against Defendant Curran 

 Defendants also move to dismiss Count I against Defendant Mark Curran, the 

Sheriff of Lake County, Illinois. Absolutely no facts are alleged against Defendant 
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Curran, other than to state that Curran is “the elected Sheriff of Lake County, Illinois and 

the responsible supervisor of Defendants Warner and Werner.” (Am. Compl. ¶ 5.) Other 

than establishing that Curran supervises the other Sheriff Defendants, Plaintiff makes no 

attempt to assert a claim against Curran or allege any actions or omissions on the part of 

Curran that might implicate him. Plaintiff has failed to state a facially plausible claim 

against Curran, as he does not plead facts which would permit a reasonable inference that 

Curran is liable for the Section 1983 claim. Iqbal, 129 S. Ct. at 1949. Further, any 

attempt on the part of Plaintiff to allege a Section 1983 claim against Curran on the 

theory of respondeat superior must fail. “The doctrine of respondeat superior can not be 

used to hold a supervisor liable for conduct of a subordinate that violates a plaintiff's 

constitutional rights.” Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) 

(citations omitted). Hence, Count I is dismissed against Defendant Curran. 

Count II against Sheriff Defendants

Count II of the Amended Complaint alleges Defendants agreed to deprive the 

Lake County judges and grand jurors of exculpatory evidence and information relating to 

the charges against Plaintiff. (Am. Compl. ¶ 44.) “[T]o establish a prima facie case of a 

civil conspiracy, a plaintiff must show (1) an express or implied agreement among 

defendants to deprive plaintiff of his or her constitutional rights and (2) actual 

deprivations of those rights in the form of overt acts in furtherance of the agreement.” 

Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Plaintiff’s claim regarding the 

alleged Section 1985 conspiracy is vague and conclusory; Plaintiff fails to allege facts to 
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demonstrate a prima facie showing of a conspiracy under Section 1985. Therefore, 

Count II is dismissed against the Sheriff Defendants, as well. 

CONCLUSION 

For the reasons set forth above, Defendants’ Motion to Dismiss is granted. 

Counts I and II of the Complaint are dismissed without prejudice, and Counts III, IV, and 

V are dismissed with prejudice, as they are time-barred. Plaintiff may amend the 

Complaint as to Counts I and II within twenty-one days of the date of this Memorandum 

Opinion and Order only if he can do so consistent with Federal Rule of Civil Procedure 

11. The matter is continued to May 16, 2013, at 9:30 a.m. for status. 

Date: April 17, 2013 ______________________________ 

 JOHN W. DARRAH 

 United States District Court Judge