3) alleged any predicate acts of racketeering; or 4) alleged a pattern of racketeering activity. See

Goren v. New Vision Int’], Inc., 156 F.3d 721, 727 (7" Cir. 1998); Talbot v. Robert Matthews

Distributing Co., 961 F.2d 654, 662-63 (7" Cir, 1992). Therefore, Count I is dismissed against all
defendants.

TI. Consumer Fraud Act Claims

The Illinois Consumer Fraud Act provides, in part, that “unfair methods of. competition and
unfair or deceptive acts or practices . . .with the intent that others rely upon the concealment,
suppression omission of such material fact . . in the conduct of any trade or commerce are . .
unlawful. 815 ILCS 505/2.

In construing the Consumer Fraud Act, courts have required that the conduct complained of

have some impact on consumers. See Central Diversey M.R.L Ctr., Inc. v. Medical Mgt. Sciences,

Ihe., 952 F. Supp. 575, 576 (N.D. Ill. 1996). In this case, plaintiff cannot state a claim under the
Consumer Fraud Act because he has not alleged any impact on consumers or broad
misrepresentations to the public. For this reason, we must dismiss Count II, plaintiff's Consumer
Fraud Act claim.

IV. Breach Of Contract Claims

The Complaint fails for a third time to state a breach of contract claim against defendants
because plaintiff did not have a contractual relationship with any of the defendants. See Gallagher
Corp. v. Russ, 309 Ill. App.3d 192, 199, 721 N.E.2d 605, 611 (1* Dist. 1999). Despite this Court’s
explicit instruction to plaintiff not to repeat allegations made in his earlier complaints, plaintiffagain
attempts to state a claim against defendants for breach of contract. Once again, this claim fails, and

Counts IV and V of the Second Amended Complaint are dismissed.



The Complaint does not meet the requirements of Fed.R.Civ.P. 9(b). Plaintiff has not pled
fraud with the requisite specificity. The complaint does not set forth any specific misrepresentations
that defendants allegedly made to plaintiff or anyone else. Plaintiffhas not identified what was said,
to whom it was said, nor has he indicated how such alleged statements are false. Moreover, plaintiff
does not allege that he would have acted any differently had he not been told he would receive
professional care. Thus, there is no showing that plaintiff relied on a false statement to his detriment.

For these reasons, Count VII fails to state a claim for relief and is dismissed.

CONCLUSION
For the foregoing reasons, we grant the motions to dismiss of defendants Bensinger, Dupont
& Associates, and Alan Friedman. We dismiss Counts II-VI with prejudice because plaintiff has

repeatedly failed to cure deficiencies by amendments previously allowed and any further attempts

to amend the complaint would be futile and harassing. See Spolnik v. Guardian Life Ins, Co. of

“America, 94 F, Supp.2d 998, 1004 (S.D.Ind.2000). All counts of the Second Amended Complaint

are dismissed with prejudice against defendants Bensinger, DuPont & Associates, and Alan
Friedman.

We grant in part and deny in part the motion to dismiss filed by defendant Pace Suburban
Bus Service. Pace’s motion to dismiss Counts II-VI is granted with prejudice. Therefore, Counts
I-VI are dismissed with prejudice against Pace. However, Pace’s motion to dismiss Count I is

denied. Therefore, the allegations of Count I will stand against Pace.

anete



bee

DISCUSSION

When deciding a motion to dismiss, we consider all of the ‘allegations of the complaint to be
true and view all well-pleaded facts and any reasonable inferences drawn from the facts in the light

most favorable to the plaintiff. Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216,

1219 (7" Cir. 1994), Dismissal is proper only if it is clear from the complaint that no set of facts
consistent with its allegations would entitle plaintiff to relief. Hishon v. King & Spaulding, 467 U.S.
69, 73 (1984).

I. Title VII Claims

Count I alleges a Title VII claim against defendant Pace. Plaintiff alleges that Pace retaliated
against him after he filed his first charge with the EEOC. For the reasons stated in our Opinion of
June 21, 2001, we deny Pace’s motion to dismiss this count.

I. RICO Claims

18 U.S.C. 1962(c) makes it unlawful “for any person employed by or associated with any
enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of; racketeering activity...” To stateaclaim under §1962(c), plaintiff must
show: 1) conduct; 2) of an enterprise; 3) through a pattern; 4) of racketeering activity. Lachmund
v. ADM Investor Servs., Inc., 191 F.3d 777, 783 (7" Cir. 1999).

Plaintiff alleges that Pace forced him to visit Dr. Friedman for mental health reasons, that
BDA provided medical services to him pursuant to the referral, and that he disagreed with the
conclusions reached by Dr. Friedman regarding his mental health.

The Second Amended Complaint fails to state a RICO claim against defendants because

plaintiff has not: 1) identified a RICO enterprise; 2) alleged any conduct in violation of the statute;


te

V. Section 1981 Claims

Under 42 U.S.C. 1981, “All persons .. . shall have the same right in every State and Territory
tomake and enforce contracts.” By its express language, §1981 provides relief only for deprivations
of “contract” rights. Recognizing this fact, the Seventh Circuit has held that, “[i]n order to bring a
section 1981 claim there must at least be a contract.” Gonzalez v. Ingersoll Milling Machine Co.,
133 F.3d 1025, 1034 (7" Cir. 1998).

Plaintiff's § 1981 claim warrants dismissal because plaintiff has not alleged the existence of

any contract or any intentional discrimination. See Gonzalez, 133 F.3d at 1034, Plaintiff alleges

only that defendants are liable for a §1981 violation because they “negligently hir[ed] personnel to
provide medical care to plaintiffand by permitting such personnel to intentionally falsify the medical
condition of plaintiff.” This allegation does not sufficiently state a claim under § 1981. Plaintiffhas
alleged no discrimination in the formation, or enforcing, of contractual rights. Therefore, Count VI
is dismissed.

VI. Confidentiality Act Claims

Plaintiff's claim under the Confidentiality Act is dismissed because it is untimely and

because plaintiff has waived his right to assert the protections of the statute, See Foster v. Plaut, 252

Ill. App. 3d 692, 702, 625 N.E.2d 198, 205 (1" Dist. 1993). Under the Confidentiality Act, a plaintiff
must assert a cause of action “within two years of the date of discovery” of his right to recover for
any allegedly improper release of his psychiatric records. Foster, 252 Ill.App.3d at 702, 625 N.E.2d
at 205. Plaintiff alleges that he filed a previous lawsuit in July 1997, in part to address concerns that
BDA improperly shared his medical records with Pace and various other individuals. Thus, plaintiff

was required to assert a claim under the Confidentiality Act no later than July 1999, two years after


Furthermore, plaintiff is barred from filing any additional amended complaints without leave

of court.

Deo CAL

Wayne R. Andersen
United States District Judge

Dated: Qveou be, G00

%

i


peers

*

Minute Order Form (06/97)
United States District Court, Northern District of Tllinois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Wayne R. Andersen than Assigned Judge
CASE NUMBER 00 C 6515 DATE 12/3/2001
CASE Jeffrey Dunn vs. Pace Suburban Bus Service
TITLE
{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oOo Brief in support of motion due
(3) im Answer brief to motion due. . Reply to answer brief due
(4) o Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to} [set for/re-set. for] on set for __ at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .
{7) oO Trial[set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OUFRCP4(m) CGeneral Rule 21 COFRCP41(a)(1) C1 FRCP41(a)(2).
a0) «ff [Other docket entry] Enter MEMORANDUM, aa N. IRDER: The motions to
dismiss filed by defendants BDA [51-1] and Friedman [53-1] rant in part and deny in part
Pace’s motion to dismiss [50-1], [33-1]. Furthermore, plaintiff is barred from filing any additional
amended complaints without leave of court.
dai ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.

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the date on which he knew about the alleged release of his psychiatric records. Plaintiff first asserted
this claim in his Second Amended Complaint filed on or about July 19, 2001, four years after the
alleged cause of action accrued. Thus, plaintiff's claim under the Confidentiality Act is untimely
and is dismissed.

Moreover, plaintiff's Confidentiality Act clam also fails because plaintiff consented to any
alleged disclosure. In 1998, plaintiff signed seven Authorization for Release of Information Forms,
authorizing the disclosure of his mental health records to various individuals, including Pace. The
Confidentiality Act specifically authorizes disclosures when the individual consents, so there has
been no statutory violation. 740 ILCS 1 10/4(a)(2). For these reasons, plaintiff's Confidentiality Act
claim, Count VII of the Second Amended Complaint, is dismissed.

VIL Fraud Claims

To state a claim for common law fraud, plaintiff must allege: 1) a false statement of material
fact; 2) the party making the statement knew or believed it to be untrue; 3) the party to whom the
statement was made had a right to rely on the statement; 4) the party to whom the statement was
made did rely on the statement; 5) the statement was made for the purpose of inducing the other
party to act; and 6) the reliance by the person to whom the statement was made led to that person’s

injury. Siegel v. Levy Organization Dev. Co., 153 Ill.2d 534, 607 N.E.2d 194, 197 (1992).

Plaintiffalleges that defendants “agreed to provide plaintiff with medical care as an employee
benefit,” and that he “relied on the representations of defendants that the care given to him would
be professional and voluntary.” He then alleges that defendants failed to provide professional

medical care and that he was generally damaged as a result.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JEFFREY DUNN, ) pete)
)
Plaintiff, ) DEC 95 200
) No. 00 C 6515
v. )
) Judge Wayne R. Andersen
PACE SUBURBAN BUS SERVICE, )
BENSINGER and DUPONT and ASSOCIATES)
and ALAN F. FRIEDMAN, Ph.D., )
)
Defendents. )

MEMORANDUM, OPINION AND ORDER

This case is before the Court on the motions of defendants Pace Suburban Bus Service
(“Pace”), Bensinger, DuPont & Associates (“BDA”), and Alan Friedman to dismiss plaintiff's
Second Amended Complaint. For the following reasons, we grant the motions to dismiss filed by
defendants BDA and Friedman. We grant in part and deny in part Pace’s motion to dismiss.

BACKGROUND

On October 2, 2000, pro se plaintiff filed his initial complaint, which alleged only a violation
of Title VII. The defendants moved to dismiss the complaint and, rather than responding to the
motion, plaintiff filed an amended complaint on February 22, 2001. The amended complaint added
claims for breach of contract, violation of the Racketeering and Corrupt Organizations Act
(‘RICO”), and violation of 42 U.S.C. 1985. The defendants moved to dismiss the amended
complaint. On June 21, 2001, this Court entered an Opinion granting the motions to dismiss on all

counts except for a Title VII count against Pace. We then gave plaintiff leave to file a Second

lo |


Amended Complaint, but cautioned him not to repeat allegations on which the Court has already
tuled.

On July 19, 2001, plaintiff filed his Second Amended Complaint. This Complaint is 55
pages and 140 paragraphs long. Plaintiff has named three parties as defendants, but has not
identified how these parties relate to each other or to his claims. The Complaint alleges that plaintiff
was employed by Pace. The allegations against Pace, as best the Court can discern from plaintiff's
Complaint, are that it failed to promote or interview him for promotion based on his race, retaliated
against him for reporting discrimination in the work place , and harassed him in unspecified ways.
Plaintiff further alleges that Pace placed him on medical leave against his will based on allegedly
false findings about his mental stability.

The allegations against BDA are that it provided medical services to plaintiff and that
plaintiff disagreed with the conclusions reached about his mental health. Plaintiff accuses BDA of
referring him to Friedman, a clinical psychologist who treated plaintiff. Plaintiff alleges that
Friedman made false findings about his mental health.

The Second Amended Complaint contains eight counts: discrimination and retaliation in
violation of Title VII (Count I); violation of RICO (Count IN; violation of the Consumer Fraud and
Deceptive Business Practices Act (Count II); breach of contract against Pace (Count IV); breach of
contract against BDA and Friedman (Count V); violation of 42 U.S.C. 1981(Count VI); violation
of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Count VII); and

common law fraud (Count VII).