IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JULIO VILLARS, ) 

 ) 

 Plaintiff, ) Case No. 12-cv-4586 

 ) 

 v. ) Judge Robert M. Dow, Jr. 

 ) 

STEPHEN KUBIATOWSKI, et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Plaintiff has brought various statutory and constitutional claims arising from his detention 

under the Material Witness Statute, 18 U.S.C. § 3144. He now moves for leave to file a fourth 

amended complaint (“FAC”) [132]. For the reasons set forth below, the Court grants in part and 

denies in part Plaintiff’s motion [132]. Specifically, Plaintiff is given until 9/25/2015 to file an 

amended complaint naming the Ozaukee John Doe Deputies as Defendants in the case. In 

addition, Plaintiff may file a motion for leave to file another amended complaint limited to 

Count IV as discussed below, also no later than 9/25/2015. In all other respects, the motion is 

denied. 

I. Background 

 A. The Second Amended Complaint 

The current operative complaint is the Second Amended Complaint (“SAC”).1

 The Court 

discussed the SAC’s allegations extensively in its previous Opinions and Orders [98, 108], 

knowledge of which is assumed. Accordingly, the Court here limits its discussion of the SAC to 

the allegations necessary to resolve Plaintiff’s motion. 

 

1

 Plaintiff’s motion for leave to file his Third Amended Complaint was denied without prejudice while 

Defendant’s motion to dismiss were pending. [See 90.] Plaintiff then moved to file the FAC [132].
2 

 The SAC alleges that Plaintiff was detained pursuant to a material witness warrant. The 

federal Material Witness Statute authorizes judges to “order the arrest of [a] person” whose 

testimony “is material in a criminal proceeding * * * if it is shown that it may become 

impracticable to secure the presence of the person by subpoena.” 18 U.S.C. § 3144. A witness 

must be released if his or her testimony “can adequately be secured by deposition, and if further 

detention is not necessary to prevent a failure of justice.” Id. 

Plaintiff was arrested on Assistant U.S. Attorney Kubiatowski’s motion in U.S. v. Diaz, 

10-cr-0199, a case in which Plaintiff had posed as a buyer of methamphetamine at the direction 

of the FBI. In the affidavit attached to his motion, Kubiatowski represented to Judge Castillo 

that Plaintiff’s testimony was critical to the government’s prosecution of defendant Jose Diaz 

and that Plaintiff was facing imminent deportation proceedings. Kubiatowski advised Judge 

Castillo that the government would be unable to secure Plaintiff’s presence at a potential trial 

with a subpoena and therefore needed a material witness warrant transferring Plaintiff to the 

custody of the U.S. Marshals Service. See Kubiatowski Affidavit in U.S. v. Diaz, 10-cr-0199, 

[54-1]. Plaintiff alleges that Kubiatowski failed to provide the Court with the biweekly reports 

required under Federal Rule of Criminal Procedure 46(h)(2). As a result, he allegedly was 

detained in various locations, including Ozaukee County Jail, for longer that he otherwise would 

have been detained. The Ozaukee Defendants2

 allegedly subjected Plaintiff to unreasonable strip 

searches and general mistreatment. 

 1. Kubiatowski

Counts I through IV of the SAC bring various claims against Kubiatowski. Count I 

alleges that Kubiatowski violated Plaintiff’s due process rights by detaining him longer than 

 

2

 The Ozaukee Defendants include Ozaukee County, Ozaukee County Sheriff Maury Straub, Ozaukee 

County Jail Administrator Jeffrey Sauder, and John Doe Jail Deputies 1–8.
3 

necessary to secure his presence as a material witness at trial. Count II alleges that Kubiatowski 

violated Plaintiff’s due process rights by “adopting and implementing policies” that subjected 

him to “outrageous, excessive, cruel, inhuman, and degrading conditions of confinement.” 

Count III alleges that Kubiatowski violated Plaintiff's equal protection rights by (as in Count I) 

detaining Villars longer than was “necessary to secure his appearance in court” and (as in 

Count II) “subjecting him to harsh[er] treatment” than other “similarly-situated material 

witness[es],” because of his race, ethnicity, or national origin. Count IV alleges that 

Kubiatowski violated Plaintiff’s Fourth Amendment right to be free from unreasonable detention 

and failed to comply with the material witness statute (18 U.S.C. § 3144), the Bail Reform Act 

(18 U.S.C. § 3142(f)(2)), and Federal Rule of Criminal Procedure 46(h). Count XV alleges that 

Kubiatowski violated the Vienna Convention on Consular Relations by failing to inform Villars 

of his right to communicate with consular officials. 

 Kubiatowski moved to dismiss Counts I through IV [83], arguing that Plaintiff could not 

sue him in his official capacity and that he was absolutely immune in his individual capacity. 

The Court granted Kubiatowski’s motion in part and denied it in part. [See 98, 105.] 

Specifically, the Court dismissed all five claims against him in his official capacity, reasoning 

that they were tantamount to constitutional tort claims against the federal government itself, (see 

Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007)), which the Supreme Court did not 

authorize in Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 

Bivens only authorized such claims against federal officers in their individual capacities. 

F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1985) (“[W]e implied a cause of action against federal 

officials in Bivens because a direct action against the Government was not available * * * the 

purpose of Bivens is to deter the officer.” (emphasis in original)). 
4 

 As to the claims brought against Kubiatowski in his individual capacity, the Court’s 

analysis turned on Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978), and Odd v. Malone, 538 F.3d 

202, 212 (3d Cir. 2008). In Daniels, the plaintiff sued an Assistant United States Attorney for 

allegedly lying to a federal judge to obtain a material witness warrant and secure the plaintiff’s 

testimony during trial. 586 F.2d at 65–66. The Seventh Circuit held that the defendant 

prosecutor was entitled to absolute immunity. Id. at 66–68. “In seeking to guarantee Daniels’ 

presence at the trial through the material witness warrant, defendant was attempting to prove all 

elements charged in the indictment” and thus “was not cast in the role of an administrator or 

investigative officer with respect to securing Daniels’ attendance at [] trial,” but was acting as an 

“advocate.” Id. at 68. Nevertheless, the Court noted that, even in the midst of a trial, a 

prosecutor is not entitled to absolute immunity “[w]hen he is acting in an administrative or 

investigative capacity.” Id. at 67 

Odd v. Malone, 538 F.3d 202, 212 (3d Cir. 2008), endorsed Daniels’ holding that a 

prosecutor acts in his prosecutorial capacity when he secures a material witness warrant for a 

witness’ arrest. Odd, unlike Daniels and like this case, involved allegations that after the 

prosecutors obtained the warrant, “they neglected to keep the courts informed of the progress of 

the criminal proceedings and the custodial status of the witnesses.” Odd, 538 F.3d at 205. With 

respect to material witness Nicole Schneyder, the prosecutor failed to update the judge when the 

trial was continued or to inform him that Schneyder remained incarcerated during that time. Id.

at 213. As a result, Schneyder sat in jail for 48 days after the continuance, until the judge finally 

was cued in and promptly released her. Id. at 206. Schneyder sued the DA’s office and the 

individual ADA assigned to her case for violations of her Fourth and Fourteenth Amendment 

rights. Id. at 206. The Third Circuit found that the prosecutor’s obligation to inform the Judge 
5 

of the trial’s continuance and the material witness’ ongoing detention “was primarily 

administrative.” Id. at 213. 

 Given (1) the factual similarities between Plaintiff’s allegations and those of plaintiff 

Schneyder in Odd and (2) the explicit statement by the Third Circuit that a prosecutor’s failure to 

observe Rule 46(h)(2)’s biweekly reporting requirement is “plainly administrative” for purposes 

of absolute prosecutorial immunity, the Court denied Kubiatowski’s motion to dismiss with 

respect to Plaintiff’s Rule 46(h)(2) claim. However, the Court granted Kubiatowski’s motion to 

dismiss Plaintiff’s claims “to the extent that Villars seeks to hold Kubiatowski liable for 

misrepresentations that Kubiatowski allegedly made to Judges Castillo and/or Denlow to secure 

Villars’s detention,” in light of the holding in Daniels that such actions qualify as “advocacy” 

and are thus entitled to absolute immunity. [See 98, at 25.] 

 2. The Ozaukee Defendants 

Counts XIII and XIV allege that Ozaukee County, Ozaukee County Sheriff Maury 

Straub, Ozaukee County Jail Administrator Jeffrey Sauder, and John Doe Jail Deputies 1–8 

(collectively, “the Ozaukee County Defendants”) violated Plaintiff’s Fourth and Eighth 

Amendment rights by subjecting him to unreasonable strip searches and general mistreatment 

while housed at the Ozaukee County Jail. Count XXI alleges that Ozaukee County employees 

Straub and Sauder, as well as John Doe Deputies 1–8, deprived Plaintiff of his constitutional 

right of access to the courts. 

B. Proposed Fourth Amended Complaint

 Plaintiff has moved for leave to file a six-count Fourth Amended Complaint (“FAC”). 

The FAC makes three main changes to the SAC. First, it adds factual allegations supporting 

Plaintiff’s contention that the material witness warrant failed to satisfy the requirements of the 
6 

Material Witness Statute, that the government lacked probable cause to arrest and detain him, 

and that his detention was therefore unconstitutional. Second, it adds a “State Created Danger” 

and “Special Relationship” claim. Third, it identifies by name the Ozaukee John Doe Deputies. 

See Reply at 1. 

 Count I alleges a violation of the Material Witness Statute and Bail Reform Act, 18 

U.S.C. §§ 3142, 3144. Counts II and III, respectively, allege arrest and detention in violation of 

the Fourth and Fifth Amendments. All three counts allege that (a) Plaintiff was arrested for the 

unlawful purpose of detaining him indefinitely; (b) there was no probable cause to believe his 

testimony could not be secured without arrest; (c) there was no probable cause to believe he 

would refuse to testify; (d) his detention was prolonged, excessive, and punitive; and 

(e) Kubiatowski violated Rule 46(h)(2)’s biweekly reporting requirement. Count II additionally 

alleges a Fourth Amendment violation based on Defendants’ unreasonable and unlawful 

searches, including strip searches, and that the Material Witness Statute was violated the Fourth 

Amendment as applied to Plaintiff’s arrest. Count III additional alleges a Fifth Amendment 

violation based on the lack of an individualized assessment, hearing or proper process before 

Plaintiff was detained. Count IV alleges a Fifth Amendment violation based on “special 

relationship” and “state-created danger” theories. Count V alleges a “violation of constitutional 

under color of state law,” which the Court construes as a § 1983 claim, alleging that the Ozaukee 

Defendants’ strip searches were unconstitutional. And Count VI brings a § 1983 claim for denial 

of access to the courts based on Plaintiff’s inability to access the law library. The factual 

allegations brought in support of these claims are discussed in the Court’s analysis below. 
7 

II. Motion to Amend Legal Standard 

Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint “shall be freely 

given when justice so requires.” Fed. R. Civ. P. 15(a). However, it is appropriate to deny a 

motion for leave to amend when an amendment would be futile because it could not withstand a 

motion to dismiss. See, e.g., Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993). The 

Seventh Circuit has instructed that leave to amend should be granted unless a party has engaged 

in “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue 

of the allowance of the amendment, futility of amendment, etc.” Airborne Beepers & Video, Inc. 

v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007) (quoting Foman v. Davis, 371 U.S. 

178, 182 (1962)). An amendment is futile when it “merely restates the same facts using different 

language, or reasserts a claim previously determined;” when it “fails to state a valid theory of 

liability;” or when it “could not withstand a motion to dismiss.” Bower v. Jones, 978 F.2d 1004, 

1008 (7th Cir. 1992) (citations and internal quotation marks omitted). 

III. Analysis 

 The Court notes at the outset that the FAC states that all counts are brought against all 

Defendants. But Counts I, III, and IV arise from conduct committed by Kubiatowski, not the 

Ozaukee Defendants. Accordingly, the Court construes them as alleging claims against only 

Kubiatowski. Count II brings a Fourth Amendment claim against both Kubiatowski and the 

Ozaukee Defendants, and as to the Ozaukee Defendants, it alleges that the strip searches were 

unreasonable. But to hold the Ozaukee Defendants liable for a Fourth Amendment violation, 

Plaintiff must bring a § 1983 claim, which he already brings in Count V. Accordingly, the Court 

construes Count II as alleging a claim only against Kubiatowski. As for Counts V and VI, the 
8 

FAC similarly states that they are brought against all Defendants. In his reply, however, Plaintiff 

has clarified that they are brought only against the Ozaukee Defendants. Reply at 2. In sum, the 

Court construes Counts I through IV to bring claims only against Kubiatowski and Counts V and 

VI to bring claims only against the Ozaukee Defendants. 

 A. Counts I through IV Against Kubiatowski 

Beginning with Counts I through III, Plaintiff adds various new allegations regarding 

Kubiatowski’s misstatements and omissions when seeking the material witness warrant. The 

FAC alleges that “the government was able to secure a material witness warrant for Mr. Villars’s 

arrest only by providing the Court with a patently false and wholly misleading affidavit.” FAC 

¶ 9. It further alleges that Kubiatowski’s affidavit made material omissions in that it failed to 

inform the Court (1) that ICE had revoked Plaintiff’s immigration documents; (2) that Plaintiff 

had worked for the past two years as a FBI and DEA confidential human source (“CHS”) with 

the approval of the U.S. Attorney’s Office; (3) that he had family members who were nativeborn U.S. citizens living in this country; (4) that he voluntarily had worked with the DEA and 

FBI on several cases in exchange for Legal Permanent Residence; (5) that the FBI, DEA and 

U.S. Attorney’s Office had not told Plaintiff that he might be needed for future testimony; 

(6) that he was never asked if he would be willing to testify as a witness; and (7) that the 

existence of an ICE detainer was not sufficient grounds to find that there was a serious risk of 

Plaintiff’s flight. FAC ¶ 10. Kubiatowski’s oral motion averred that the case was “eligible for 

entry of a detention order because of a serious risk of flight and, further, that the Court should 

detain Mr. Villars because no condition or combination of conditions of release could reasonably 

assure his appearance as required because ICE would remove him to Honduras.” Id. ¶ 12. In 

stating so, Kubiatowski “blind-sided” Plaintiff “almost a month after [the government] had last 
9 

contacted him, without ever giving him he opportunity to cooperate voluntarily—all under the 

pretense that his testimony was critically needed.” Id. ¶ 11. Based on these facts, Plaintiff 

alleges that there were insufficient facts showing that it “may become impracticable to secure the 

presence of the person by subpoena,” 18 U.S.C. § 3144, and that his material witness warrant 

lacked probable cause. 

The Court’s prior immunity analysis applies to these new allegations. As the Court 

previously explained, Kubiatowski is absolutely immune from Plaintiff’s claims seeking to hold 

him liable for making misrepresentations or material omissions to Judges Castillo and/or Denlow 

to secure Plaintiff’s detention. Again, such actions are “advocacy” under Daniels and Odd. 

Plaintiff argues that Daniels did not “address whether immunity shields a prosecutor from 

seeking to arrest a cooperating material witness without * * * probable cause (legal probable 

cause to issue the arrest warrant did not exist based upon the information known to Kubiatowski 

at the time the warrant was sough[t]) or if the Material Witness Statute is unconstitutional when 

applied to a cooperating witness, all that Daniels alleged was that his arrest and imprisonment 

came as a result of defendants” false statements to the judge. Reply at 6. He further argues that 

“Kubiatowski was not acting as an advocate but as [an] investigator searching for clues and 

corroboration that might give him probable cause to seek an arrest warrant against Villars.” Id. 

at 7. But as the Court previously explained, Kubiatowski is immune from any liability arising 

from the representations he made to secure the warrant. This means that even if (1) probable 

cause to arrest Plaintiff as a material witness was lacking, (2) the material witness warrant was 

invalid, and (3) Plaintiff’s detention was unconstitutional, Kubiatowski could not be held 

personally liable for it based on the facts alleged. Accordingly, Plaintiff’s new allegations 

regarding Kubiatowski’s misstatements and omissions are futile; they add more detail to a claim 
10 

already dismissed on immunity grounds. (That said, Plaintiff still may proceed on his claims 

alleging that Kubiatowski failed to comply with Rule 46(h)(2)’s biweekly reporting requirement, 

as the Court explained in its prior Opinions and Orders [98, 105].) 

 Plaintiff states in his reply brief that he intends to seek a Franks hearing to challenge the 

warrant. See Franks v. Delaware, 438 U.S. 154 (1978). But Franks addressed whether “a 

defendant in a criminal proceeding ever ha[s] the right, under the Fourth and Fourteenth 

Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the 

truthfulness of factual statements made in an affidavit supporting the warrant[.]” Id. at 155 

(emphasis added). Plaintiff is not a criminal defendant and he cites no authority applying Franks

outside that context. 

 Turning to Count IV, the FAC alleges that Kubiatowski had a “special relationship” with 

Plaintiff as a material witness and that his actions imposed a “state-created danger” on Plaintiff.3

 

Generally, a “State’s failure to protect an individual against private violence simply does not 

constitute a violation of the Due Process Clause.” Doe v. Vill. of Arlington Heights, 782 F.3d 

911, 916 (7th Cir. 2015) (quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 

189, 197 (1989)). Two exceptions exist: “(1) when the state has a special relationship with the 

person such as when it has custody over a person, it must protect him because no alternate 

avenues of aid exist, and (2) under the state-created danger exception, liability exists when the 

state affirmatively places a particular individual in a position of danger the individual would not 

otherwise have faced.” Doe, 782 F.3d at 916 (7th Cir. 2015) (citations omitted). The Seventh 

Circuit has noted that “functionally the two classes of case are the same * * * [f]or in both 

 

3

 Contrary to Defendant’s argument, case law suggests that special relationship/state-created danger 

claims may be brought under Bivens. See Benzman v. Whitman, 523 F.3d 119, 129 (2d Cir. 2008) 

(recognizing that a state-created danger claim may brought against a federal actor under Bivens); VelezDiaz v. Vega-Irizarry, 421 F.3d 71, 80 (1st Cir. 2005) (same); Wang v. Reno, 81 F.3d 808 (9th Cir. 1996). 
11 

classes of case the victim is safe before the state intervenes and unsafe afterward.” Sandage v. 

Bd. of Comm'rs of Vanderburgh Cnty., 548 F.3d 595, 598 (7th Cir. 2008); see also Paine v. 

Cason, 678 F.3d 500, 510 (7th Cir. 2012). To state such a claim, Plaintiff must allege (1) that 

Kubiatowski created or increased a danger faced by Plaintiff; (2) that Kubiatowski’s failure to 

protect him from danger was the proximate cause of Plaintiff’s injuries; and (3) that 

Kubiatowski’s failure to protect Plaintiff “shocks the conscience.” Jackson v. Indian Prairie 

Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011); King ex rel. King v. East St. Louis Sch. Dist. 

189, 496 F.3d 812, 817–18 (7th Cir. 2007). 

 Plaintiff alleges that “a ‘CHS’ relationship with law enforcement personnel inherently 

creates a dangerous condition, in that disclosure of the confidential human source’s identity will 

foreseeable result in harm to the ‘CHS,’” id. ¶ 109; that Kubiatowski “disclosed to the public by 

naming Mr. Villars as a Material Witness in the Court Docket (a public record) that Mr. Villars 

had been a cooperating source or participated on a sting operation under the supervision of the 

DEA and FBI,” id. ¶ 113; that Kubiatowski thereby created “an opportunity that otherwise would 

not have existed for a third party’s crime of retaliation to occur,” id. ¶ 115; that Kubiatowski 

“proximately caused retaliation against Mr. Villars” and “fear [of] being harm[ed] and kill[ed] in 

the future by Drug Trafficking Organizations, id. ¶ 116; that Plaintiff’s “living conditions [have] 

become unbearable [as he is] living in hiding with fear of getting killed,” id. ¶ 106; and that 

Plaintiff consequently lost past and future income, id. ¶ 117. 

 These allegations are conclusory and speculative. They provide no concrete detail 

explaining why Plaintiff is unsafe, nor do they allege conduct that shocks the conscience. As 

such, Plaintiff's allegations fall short of the factual support necessary to plausibly state a claim 

that could satisfy the second and third elements of a state-created danger claim. In his reply, 
12 

Plaintiff adds that he received retaliatory death threats from the Defendants in Diaz and that he 

faces torture or death if he returns to Honduras. But the allegations in the complaint specifically 

must provide enough factual detail to make Plaintiff’s claim plausible. A plaintiff may not 

amend a proposed amended complaint through a reply brief. Cf. Thomason v. Nachtrieb, 888 

F.2d 1202, 1205 (7th Cir. 1989) (“It is a basic principle that a complaint may not be amended by 

the briefs in opposition to a motion to dismiss”). However, in view of the additional allegations 

set out in Plaintiff's reply brief and Plaintiff's pro se status, if Plaintiff wishes to try to replead as 

to Count IV only, he may file another motion for leave to file an amended complaint no later 

than 9/25/2015. The Court does not believe that further briefing would be necessary to evaluate 

whether any further proposed Count IV would satisfy Rules 8 and 15. However, if (1) Plaintiff 

files a motion to amend and (2) after review of the motion, Defendant Kubiatowski wishes to 

respond, he may do so by 10/9/2015. 

 In sum, with the limited exception noted in the previous paragraph, the FAC’s changes 

are futile with respect to Kubiatowski. They either repeat the deficiencies identified in the 

Court’s prior Opinions and Orders [98, 105] or fail to state a new claim. As to the Ozaukee 

Defendants, the FAC essentially alleges the same facts and brings the same claims. Its only 

change is the naming of the Ozaukee John Doe Deputies. 

IV. Conclusion

 For the reasons stated above, the Court denies in part and grants in part Plaintiff’s motion 

[132]. Specifically, the motion is denied except that Plaintiff is given until 9/25/2015 to file an 

amended complaint naming the Ozaukee John Doe Deputies. In addition, Plaintiff may file a 

motion for leave to file another amended complaint limited to Count IV as discussed above, also 

no later than 9/25/2015. 
13 

Dated: September 2, 2015 ___________________________ 

Robert M. Dow, Jr. 

United States District Judge