Through § 1983, Congress sought to give a remedy to parties deprived of

constitutional rights, privileges and immunities by an official’s abuse of his position.

Accordingly, it authorized suits to redress deprivations of civil rights by persons

acting “under color of any [state] statute, ordinance, regulation, custom, or usage.”

42 U.S.C. § 1983. The requirement of action under color of state law means that

Hafer may be liable for discharging respondents precisely because of her authority as

auditor general. We cannot accept the novel proposition that this same official

authority insulates Hafer from suit.
Jd. at 27-28 (citation omitted), In short, “the Eleventh Amendment provides no shield” for the
State’s Attorneys against plaintiff's claims that, in their individual capacities, they “deprived [him]
of [his] federal right[s] under the color of state law.” /d. at 30 (internal citation omitted).

That does not mean, however, that plaintiff's claims against the prosecutors are viable.
Prosecutors are absolutely immune from civil rights claims based on conduct that is “intimately
associated with the judicial phase of the criminal process.” Jmbler v. Pachtman, 424 U.S. 409, 430
(1976). “Absolute immunity covers[, among others, such] prosecutorial functions as the initiation
and... pursuit ofa criminal prosecution...” Mendenhall v. Goldsmith, 59 F.3d 685, 689 (7th Cir.
1995). Plaintiff's section 1985(3) claims against Konzal and Rippy are based solely on their
initiation and pursuit of the criminal contempt charge. (See Third Am. Compl. {fj 69-79.) As a

result, Konzal and Rippy are absolutely immune from the claims plaintiff asserts against them in

Count IX.

Counts X-XIV and XVI

In Count X, plaintiff alleges that the City, Amelio, Desiderio and Egizio are liable under state
law for falsely arresting him on June 27, 2001. (Ud. | 147-48.) In Count XI, plaintiff alleges that
the City, Desiderio, Egizio, the County and the State’s Attorneys are liable under state law for falsely

imprisoning him in the courthouse on January 16, 2002. (Id. {| 150-52.) In Count XII, plaintiff

14


Count}

In Count J, plaintiff alleges that the City is liable for the remaining incidents under section
1983 because its failure to train and supervise its employees caused the constitutional violations.
The City can be held liable under section 1983 only if it deprived plaintiff of his constitutional rights
pursuant to one of its policies, customs or practices. Monell v. Dep't of Soc. Servs. of City of N.Y.,
436 U.S. 658, 694 (1978). Plaintiff can allege a policy within the meaning of Monell by: 1)
identifying an express policy that caused the alleged constitutional violation; 2) alleging the existence
of a practice so widespread and permanent that it constitutes a custom or usage; or 3) alleging that
his injuries were caused by a person with final policy-making authority. Baxter ex rel. Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994) (citations omitted).

Plaintiff contends that his injuries were caused by a City custom namely, its failure to train
the defendant police officers and councilman. (Third Am. Compl. {ff 118-21.) The City can be held
liable under section] 983 for inadequately training its employees only if it had “actual or constructive
notice” that its omissions were likely to result in constitutional violations. Cornfield ex rel. Lewis
v. Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993), Such notice is presumed if the
municipality does not train its employees “with respect to a clear constitutional duty implicated in
recurrent situations that [they are] certain to face” or there is a pattern of constitutional violations
such that the City should have realized its training was deficient. /d.

Plaintiff alleges that the City did not adequately train defendants Egizio, Desiderio and

Amelio to conduct constitutional searches and arrests.” (See Third Am. Compl. 118-21.) Ifthat

Plaintiff also alleges that the City failed to instruct Egizio and Desiderio that they must
provide exculpatory evidence to prosecutors. For the reasons discussed below, however, plaintiff
has no viable due process claim against the officers for suppression of evidence. Because the
officers did not violate plaintiffs due process rights, plaintiff has no claim against the City for

5


Conclusion

For all of the reasons stated above, plaintiff's motion to strike [doc. no. 68] is denied. The
City defendants’ motion to dismiss plaintiff's third amended complaint [doc. no. 58] and the County
and the State’s Attorneys’ motion to dismiss plaintiff's third amended complaint [doc. nos. 56 and
66] are granted in part and denied in part. The motions are granted as to:

(1) the claims asserted against defendant Sepulvedo in Counts III and VII, which are
dismissed without prejudice;

(2) any claims asserted against defendant Nagra, which are dismissed without
prejudice;

(3) any section 1981, section 1983 or section 1985(3) claims based on the alleged
events of December 17, 1996, March 3, 1998 or April 7, 2001, which are dismissed
with prejudice;

(4) the section 1983 claims asserted against the City in Count I that are premised on
(a) its alleged failure to train Dorris, Gerdes and Billups; and (b) its alleged failure
to train Desiderio and Egizio to give exculpatory evidence to prosecutors, all of
which are dismissed with prejudice;

(5) the section 1983 claims asserted against the County in Count II, which are
dismissed with prejudice;

(6) the section 1983 due process claims that plaintiff asserts against Egizio and
Desiderio in Count V, which are dismissed with prejudice;

(7) the section 1985(3) claim plaintiff asserts against Konzal and Rippy in Count IX,
which is dismissed with prejudice;

(8) the false arrest, the false imprisonment, malicious prosecution, intentional
infliction of emotional distress, abuse of process and negligence claims plaintiff
asserts against the City defendants in Counts X-XIV and XVI, which are dismissed
with prejudice;

(9) the defamation claim plaintiff asserts against the City in Count XV, which is
dismissed with prejudice; and

(10) the false imprisonment, malicious prosecution, intentional infliction of
emotional distress, abuse of process and defamation claims plaintiff asserts against
the County in Counts XI-XV, which are dismissed with prejudice.

18


Count V

In Count V, plaintiff alleges that defendants Egizio and Desiderio are liable under section
1983 for violating his due process rights by withholding from the prosecutors evidence that plaintiff
had permission to be on the Sherman Street property. Our court of appeals has recognized that the
police violate a criminal defendant’s due process rights if they taint his trial by withholding material
exculpatory evidence from prosecutors. Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir, 2001).
According to the third amended complaint, however, plaintiff was never tried on the criminal trespass
charge. (Third Am. Compl. § 58 (alleging that the State’s Attorney chose to nolle prosequi the
criminal trespass charge on February 26, 2002).) Unless plaintiff was tried, and he affirmatively
alleges that he was not, he has no basis for this kind of due process claim. See /neco v. City of Chi.,
286 F.3d 994, 998 (7th Cir. 2002) (stating that “[s]ection 1983 provides a remedy for certain forms

of trial-based government misconduct based on violations of due process”) (emphasis supplied).*

Count VI

In Count VI, plaintiff alleges that defendants Desiderio and Egizio are liable under section
1985(3) for conspiring to deprive him of equal protection in connection with his June 27, 2001 arrest.
To state a viable section 1985(3) claim, plaintiff must allege that defendants formed a conspiracy,
for the purpose of depriving him of equal protection of the laws and because of class-based animus,

that they took an act in furtherance of the conspiracy and that plaintiff was injured or deprived of a

‘Recently, our court of appeals has suggested that there may be an exception to this rule for
guilty pleas procured through the suppression of exculpatory evidence. See McCann v. Mangialardi,
337 F.3d 782, 788 (7th Cir. 2003) (“[I]t is highly likely that the Supreme Court would find a violation
of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a
criminal defendant’s factual innocence but fail to disclose such information to a defendant before he
enters into a guilty plea.”)

10


asection 1983 claim. See Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (“42 U.S.C. § 1983
protects plaintiffs from constitutional violations, not violations of state laws or, in this case,

departmental regulations and police practices.”).

Count II

In Count IJ, plaintiffatleges that the County is liable under section 1983 for its failure to train
defendants Konzal and Rippy. As we noted in our previous Memorandum Opinion and Order,
however, state’s attorneys are state, not county, officials. Ingemunson v. Hedges, 133 Ill. 2d 364,
369 (III. 1990); (see 5/24/04 Mem. Op. & Order at 11). Moreover, unlike counties, states are not
among the government actors subject to suit under section 1983. Will v. Mich. Dep't of State Police,

491 U.S. 58, 71 (1989). The claims asserted in Count II, therefore, must be dismissed

Count IT

In Count II, plaintiff asserts, inter alia, a section 1983 claim against defendants Desiderio,
Egizio and Amelio for violating his Fourth Amendment rights when they arrested him on June 27,
2001. If defendants had probable cause for the arrest, however, these claims are barred. Schertz v.
Waupaca County, 875 F.2d $78, 582 (7th Cir, 1989) (stating that “the existence of probable cause
... is an absolute bar to a Section 1983 claim for unlawful arrest”). Defendants had probable cause
to arrest plaintiff if, “the facts and circumstances within their knowledge and of which they [had]

reasonably trustworthy information [were] sufficient to warrant a prudent [person] in believing that

‘In this count, plaintiff also asserts section 1983 unreasonable search claims against
Desiderio, Egizio and Amelio for the search they conducted on June 27, 2001 and section 1983
claims against Desiderio and Egizio for their alleged role in plaintiff's false arrest on January 26,
2002. Because defendants do not address these claims, however, neither do we

7


is true, and we must assume that it is, then the City’s training program is plainly flawed. Thus,
plaintiff's allegations, though conclusory, are sufficient to state a section 1983 claim against the City
for its failure to properly train the defendant officers. See, e.g., Higgs v. Carver, 286 F.3d 437, 439
(7th Cir. 2002) (“A complaint that complies with the federal rules of civil procedure cannot be
dismissed on the ground that it is conclusory or fails to allege facts.”).

The situation is different for plaintiff's claim that the City failed to train defendant Dorris.
That claim is premised on Dorris’ alleged defamation of plaintiff. (Third Am. Compl. [ 89.) But
defamation that injures reputation and nothing more, which is what plaintiffalleges, does not violate
the Constitution. See Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) (“{D]efamation by
a public officer is not a constitutional tort, because the interest that it invades, the interest in
reputation, is not deemed liberty or property within the meaning of the due process clauses of the
Constitution . . . .”). Because plaintiff does not allege that the defamation injured any
constitutionally-protected interest, the City cannot be held liable under section 1983 for failing to
instruct Dorris about defamation.

Plaintiff's claims that the City failed to train defendants Gerdes and Billups are equally
infirm. These claims are based on those defendants’ alleged failure to handle properly the complaints
plaintiff filed with the Police Department. (Third Am. Compl. ff 31, 48, 109.) Plaintiff, however,
has no constitutional right to have such complaints investigated. Slagel v. Shell Oil Refinery, 811
F. Supp. 378, 382 (C.D. Ill. 1993) (holding that a police chief's failure to investigate plaintiff's
complaint letter did not constitute a constitutional violation), aff'd, 23 F.3d 410 (7th Cir. 1994).

Thus, Billups and Gerdes’ alleged failure to conduct internal investigations cannot be the basis for

failing to train them with respect to those rights.


In all other respects, the motions to dismiss are denied. The only claims that remain in this suit are:

(1) the section 1983 claims asserted against the City in Count I for failing to train Egizio,
Desiderio and Amelio to conduct constitutional searches and arrests;

(2) the section 1983 unreasonable search and arrest claims asserted in Count II]
against Desiderio, Egizio and Amelio for the June 27, 2001 search and arrest and the
section 1983 false arrest claims asserted against Desiderio and Egizio in Count III for
the January 16, 2002 arrest;

(3) the section 1983 conspiracy to retaliate and First Amendment retaliation claims
asserted against the City, Amelio, Desiderio and Egizio in Count IV;

(4) the section 1985(3) claims asserted against Desiderio and Egizio in Count VI for
their alleged conspiracy to deprive him of equal protection in connection with his
June 27, 2001 arrest;

(5) the section 1981 claims asserted against Gerdes and Billups in Count VIII;

(6) the false imprisonment, malicious prosecution, abuse of process and intentional
infliction of emotional distress claims asserted against the State’s Attorneys in Counts
XI-XIV; and

(7) the defamation claims asserted against Dorris and the State’s Attorneys in Count
XV.

The defendants that remain in this suit shall file an answer to the claims in the third amended
complaint that remain in this suit within fourteen days of the date of this Memorandum Opinion and

Order.

SO ORDERED ENTERED: SY 05

HON. RONALD A.
United States District Judge

19


Count IV

In Count IV, plaintiff alleges that the City, Amelio, Desiderio and Egizio are liable under
section 1983 for conspiring to retaliate, and retaliating, against him for exercising his First
Amendment rights by arresting him on June 27, 2001. (See Third Am. Compl. J 128.) Defendants
contend that this claim, which was raised for the first time in the third amended complaint, is time-
barred.

The Court disagrees. Though plaintiff did not allege in his first two complaints that the
events of June 27, 2001 violated his First Amendment rights, (see Compl. {fj 79-105, Second Am.
Compl. J] 82-107), that omission is not fatal to his claims. A claim raised in an amended complaint
relates back to the filing date of the original complaint for statute of limitations purposes if it
“[arises] out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading.” FED. R. Civ. P. 15(c)(2). Plaintiff's section 1983 First and Fourth Amendment
claims arise out of the same conduct, the June 27, 2001 arrest, which plaintiff alleged was motivated
by his public criticism of the Police Department. (See Compl. {{ 27, 44-61.) Because the First
Amendment claims arise out of conduct that plaintiff alleged in his original complaint, filed June 26,
2003, for limitations purposes it is deemed to have been filed on the same day. Henderson v.
Bolanda, 253 F.3d 928, 931 (7th Cir. 2001) (Generally, an amended complaint in which the
plaintiff merely adds legal conclusions or changes the theory of recovery will relate back to the filing
of the original complaint if the factual situation upon which the action depends remains the same and
has been brought to defendant’s attention by the original pleading.”) (citation omitted). Defendants’

motion to dismiss the First Amendment claims asserted in Count IV is denied.


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

EASTERN DIVISION
ROBERT IUFFUES WEBB II, )
)
Plaintiff, )
)
v. ) No. 03 C 4436

)

CITY OF JOLIET, WARREN C. DORRIS, ,) Judge Ronald A. Guzman
JR., DAVID L. GERDES, NICHOLAS R. )
AMELIO, BEN BILLUPS, ROBERT )
DESIDERIO, JOSEPH EGIZIO, RONALD )
NAGRA, KEVIN SEPULVEDO, COUNTY )
OF WILL, THOMAS KONZAL and DANIEL)
RIPPY, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Robert Iuffues Webb II has sued the City of Joliet (‘the City”), Joliet City Councilman
Warren C. Dorris, Jr., Joliet Chief of Police David L. Gerdes, Joliet Police Officers Nicholas R.
Amelio, Ben Billups, Robert Desiderio, Joseph Egizio, Ronald Nagra, Kevin Sepulvedo, Will County
(“the County”) and Will County Assistant State’s Attorneys Thomas Konzal and Daniel Rippy (“the
State’s Attomeys” ) for their alleged violations of his rights under the United States Constitution and
state law. Before the Court are: (1) the City, Gerdes, Dorris, Amelio, Egizio, Desiderio and Billups’
(“the City defendants”) Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss the
claims asserted against them in Counts I, II-VI and VILI-XVI of plaintiff's third amended complaint;
(2) the County and State’s Attorneys’ Rule 12(b)(6) motion to dismiss the claims asserted against
them in Counts II, IX and XI-XV of the third amended complaint; and (3) plaintiff s motion to strike

portions of the City defendants’ reply brief. For the reasons set forth below, the City defendants’


amended complaint filed in July 2004, well after the two-year limitations period for these claims had
expired.

The Court disagrees. As an initial matter, the section 1981 claim based on Gerdes’ allegedly
improper dismissal of plaintiff's complaint about the June 29, 2004 arrest is plainly timely. The
dismissal allegedly occurred on July 7, 2004, just a few weeks before plaintiff asserted the section
1981 claim based on it in his third amended complaint.

Moreover, the section 1981 claims that are based on Billups’ June 28, 2001 refusal to
investigate one of plaintiff's complaints and Gerdes’ August 17, 2001 resolution of another
complaint relate back to plaintiff's original filing. Because these claims simply change the theory
of recovery for conduct set forth in the complaint filed June 26, 2003, (see Compl. §{] 65, 89), they
are deemed to have been filed that day. Henderson, 253 F.3d at 931. Thus, all of plaintiff's section
1981 claims are timely.

Even if they are timely, defendants say these claims must still be dismissed because they do
not recite all of the required elements. To state a viable section 1981 claim, plaintiff must allege
“that (1) [he is a] member[] of a racial minority; (2) the defendant(s] had an intent to discriminate
on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated
in the statute,” Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996), which are: making and
enforcing contracts, filing and being a party to a lawsuit, giving evidence, and enjoying “the full and
equal benefit of all laws and proceedings for the security of persons and property.” 42 U.S.C. §
1981(a). Defendants say the last element is missing.

Plaintiff's section 1981 claims are based on defendant’s alleged discriminatory treatment of
his complaints of police misconduct. Though defendants have not provided, and we could not find,
a case on point, the statutory phrase “proceedings for the security of persons and property” seems

12


federal right. Trautvetter v. Quick, 916 F.2d 1140, 1153 (7th Cir. 1990). Defendants say plaintiff
has not adequately pleaded these elements because he “alleges no facts . . . to suggest that {a]
conspiracy . .. existed” but “simply concludes” that one did. (Defs.’ Mem. Law Supp. Mot. Dismiss
at 8.)

The Federal Rules of Civil Procedure, however, do not require plaintiff to plead facts, see
Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995) (“[A] plaintiff in a suit in federal court
need not plead facts; he can plead conclusions.”), even for conspiracy claims, see Tierney v. Vahle,
304 F.3d 734, 742 (7th Cir. 2002) (“[T]here are no heightened rules of pleading a federal case
besides those listed in Fed. R. Civ. P. 9, and conspiracy is not on the list.”), Plaintiff alleges that
Egizio and Desiderio conspired to deprive him of equal protection of the laws because of racial bias,
falsely arrested him in furtherance of the conspiracy and, as a result, deprived plaintiffofhis Fourth
Amendment rights. (See Third Am. Compl. {§ 37-49, 132-35.) Those allegations are sufficient to

state a section 1985(3) claim.

Count VII
In Count VII, plaintiff asserts a section 1983 excessive force claim against defendant
Sepulvedo. (See Third Am. Compl. ] 136-38.) As noted above, however, Sepulvedo has never

been served. Thus, this claim must be dismissed.

Count VIII

In Count VIII, plaintiff alleges that defendants Gerdes and Billups violated section 1981 when
they treated his internal complaints differently than they treat those of white citizens. Defendants
contend that these claims are time-barred because they were raised for the first time in the third

11


[plaintiff] had committed or was committing an offense.” Kelley v. Myler, 149 F.3d 641, 646 (7th
Cir. 1998) (citation omitted). Defendants say that plaintiffs allegations establish that they had
probable cause for the June 27, 2001 criminal trespass arrest.

The Court disagrees. Plaintiff violated the Illinois criminal trespass law if, among other
things not relevant here, he “knowingly and without lawful authority enter[ed] or remain[ed] within
or ona building.” 720 ILL. Comp. STAT. 5/21-3(a)(1). The information known to defendants, as
plaintiff alleges it, is that: (1) on June 27, 2001, an agreement was in effect between Charles Cain,
Sr., the purported owner of the property at 213-215 Sherman Street, and the Joliet Police Department
that authorized the police to enter that property and arrest for trespassing anyone who Cain had not
identified as having permission to be there (Third Am. Compl. { 34; id., Ex. 3, 6/13/01 Joliet Police
Dep’t Agency Agreement); (2) defendants watched plaintiff enter the building at 213 Sherman by
using keys (id. J] 37-39); (3) plaintiff told defendants that he was the watchman for the property (id.
4 39); (4) defendants falsely told plaintiff that his name was on the list of people Cain forbade from
entering the property (id. { 41-42); and (5) defendants refused to call Cain to determine whether
plaintiff was permitted to be on the property (id. { 42). Though these allegations support the
inference that a reasonable person would have believed plaintiff entered 213 Sherman, knowing that
he did not have permission to do so, they do not require it. Because a reasonable person could also
conclude from these allegations that plaintiffhad permission to enter the property, or at least believed
that he did, they do not establish that defendants had probable cause for the criminal trespass arrest.

Defendants’ motion to dismiss these false arrest claims is, therefore, denied.


Before delving into the individual counts, we have a few preliminary observations. First,
some of plaintiff's federal claims are obviously time-barred. The limitations period for each federal
claim is two years. See Wilson v. Giesen, 956 F.2d 738, 741 n.4 (7th Cir. 1992) (42 U.S.C. §§
(“sections”) 1983 and 1985(3)); Smith v. City of Chi. Heights, 951 F.2d 834, 839 (7th Cir. 1992)
(section 1981). That period begins to run “when the plaintiff knows or should know that his .
constitutional rights have been violated.” Wilson, 956 F.2d at 740. To the extent the alleged events
of December 17, 1996, March 3, 1998 or April 7, 2001 violated plaintiff's rights, he knew or should
have known it at the time. Thus, the statute of limitations on any civil rights claim based on those
events started running the day each event occurred. Plaintiff did not file this suit until June 26, 2003,
more than two years after each of those events occurred. Thus, any civil rights claim based on those
events is time-barred and must be dismissed.

Second, two of the police officers named as defendants, Kevin Sepulvedo and Ronald Nagra,
have not moved to dismiss. A review of the Court’s docket reveals why: neither man has been
served. Because more than 120 days have passed since Sepulvedo and Nagra were named as
defendants in this suit, any claims plaintiff asserts against them are dismissed without prejudice

pursuant to Rule 4(m).

‘Claims should not be dismissed on statute of limitations grounds unless “the complaint
alleges facts that create an ironclad defense.” Foss v, Bear Stearns & Co., Inc., 394 F.3d 540, 542
(7th Cir. 2005). Such is the case here. Plaintiff alleges that he knew at the time of each of these
events that his rights had been violated and that the defendants repeatedly refused to give him any
redress. Those allegations scotch any equitable tolling or equitable estoppel arguments and establish
that any section 1983 claim based on those events is time-barred.

4


alleges that the City, Desiderio, Egizio, the County and the State’s Attorneys are liable for
maliciously prosecuting him for criminal contempt on January 16, 2002. (/d. {{{ 154-56.) In Count
XIU, plaintiff alleges that the City, Desiderio, Egizio, the County and the State’s Attorneys are liable
for abuse of process in connection with his prosecution for criminal contempt on January 16, 2002.
(Ud. §§ 158-60.) In Count XIV, plaintiff alleges that the City, the police officer defendants, the
County and the State’s Attorneys are liable for intentionally inflicting emotional distress upon him.
(id. §j 162-66.) In Count XVI, plaintiff alleges that all of the City defendants are liable for
negligence because they breached their “legal duty [to plaintiff] to act with reasonable and due care
to promote faith and confidence of the citizens in their government.” (/d. {4 172-75.)

As to the City defendants, these claims are time-barred. Joliet is a local public entity subject
to the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILL.Comp.
STAT. 10/1-101, et seg. 745 ILL. Comp. STAT. 10/1-206 (defining “local public entity” as, among
other things, a municipality). In pertinent part, the Act states that “[nJo civil action other than [one
arising from patient care] may be commenced in any court against a local public 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 ILL. Comp. STAT. 10/8-101. Plaintiff's initial
complaint was not filed until June 23, 2003, more than one year after the June 27, 2001 arrest and
the events of January 16, 2002, on which the false imprisonment, malicious prosecution, intentional
infliction of emotional distress, abuse of process and negligence claims are based. Thus, the claims
asserted against the City defendants in Counts X-XIV and XVI are untimely and must be dismissed.

The claims against the County must also be dismissed. Plaintiff seeks to hold the County
liable for the claims in these counts solely because it employs the State’s Attorneys. (See Third Am.
Compl. ff 152, 156, 160, 166, 170.) As noted above, however, the defendant State’s Attorneys are

15


Count XV

In Count XV, plaintiff alleges that the City and Dorris are liable for defamation.’ The claim
against the City is easily dispatched. The Tort Immunity Act expressly provides that “[{a] local public
entity is not liable for injury caused by any action of its employees that is libelous or slanderous.”
745 ILL. Comp. STAT. 10/2-107. Thus, even if Dorris did defame plaintiff, the City cannot be held
liable for his actions.

The claim against Dorris, however, survives. In Illinois, there are two types of defamation:
defamation per se and defamation per quod. Muzikowski v. Paramount Pictures Corp., 322 F.3d
918, 924 (7th Cir. 2003). Among the categories of statements deemed defamatory per se are those
that impute “[an] inability to perform or want of integrity in the discharge of duties of public office.”
Jd. Plaintiff does not allege Dorris’ actual words, but it is reasonable to infer from the complaint that
Dorris said plaintiff greatly prolonged Joliet City Council meetings. (See Third Am. Compl. {| 89.)
The charge that plaintiff protracts meetings does not necessarily impute incompetence or lack of
integrity; plaintiff may belabor the proceedings because he is a meticulous champion of his
constituents’ interests, not because he is a dishonest, bungler. But it could do so. Because plaintiff
is entitled to all reasonable inferences, and his allegations support the inference that Dorris defamed

him per se, the motion to dismiss Count XV is denied.

*In this count, plaintiff also asserts defamation claims against the State’s Attorneys and against
the County on a respondeat superior theory. (See Third Am. Compl. {ff 167-68, 170.) For the
reasons discussed above, however, the County has no respondeat superior liability for the State’s
Attomeys’ alleged torts. Thus, Count XV as to the County must be dismissed. The claims against
the State’s Attorneys, who made no substantive argument for dismissing them, will stand.

17


(8) On January 16, 2002, Egizio and Desiderio conspired with defendant Rippy to

have plaintiff charged with criminal contempt of court and caused two sheriff's

deputies to unlawfully restrain plaintiff from leaving the courthouse in retaliation for

his exercise of free speech (id. J] 66-75);

(9) In April 2004, defendant Dorris made false statements about plaintiff to a school

gathering, which were published in a newspaper (id. {| 89), and the City refused to

make Dorris correct the statements (id. 90-91);

(10) On June 29, 2004 defendant Sepulvedo falsely arrested plaintiff for having

liquor on the public way and used excessive force in effecting that arrest (id. {|} 94-

106); and

(11) On July 7, 2004 Gerdes dismissed plaintiff's internal complaint regarding the

liquor on the public way arrest (id. J] 107-09).

Discussion

Motion to Strike

Plaintiff asks the Court to strike various statements from the City defendants’ reply brief.
Motions to strike are governed by Rule 12, which permits the Court to “stri[ke] from any pleading
any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R.

Civ. P. 12(f. Because a brief is not a pleading and defendants’ arguments do not constitute

impertinent or scandalous matter, plaintiffs motion to strike is denied.

Motions to Dismiss

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Forseth v. Vill.
of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless “it is clear that no
relief could be granted under any set of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).


motion is granted in part and denied in part, the County and State’s Attorneys’ motion is granted in

part and denied in part and plaintiff's motion to strike is denied.

Facts

In his third amended complaint, plaintiff claims that the defendants deprived him ofhis First,
Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. §§ 1981, 1983 and 1985(3) and
that they are liable under state law for false arrest, false imprisonment, malicious prosecution, abuse
of process, intentional infliction of emotional distress, defamation and negligence. All of plaintiff's
claims are based on the following events, which allegedly took place at the times noted:

(1) On December 17, 1996, certain City officials placed another man’s name ahead

of plaintiff's on the list of citizens wishing to speak at the city council meeting,

enabling that man to make slanderous comments about plaintiffat the meeting (Third

Am. Compl. ff 19-23);

(2) On March 3, 1998, the City adopted Resolution 4511 limiting citizens’ access to
council meetings (id. | 25);

(3) On April 7, 2001, defendant Amélio falsely arrested plaintiff for mob action to
prevent him from exercising his First Amendment rights (id. { 28);

(4) On August 17, 2001, defendant Gerdes dismissed as unfounded the complaint
plaintiff had filed with the Police Department regarding the mob action arrest (id. {9
29-31);

(5) On June 27, 2001, defendants Desiderio, Egizio and Amelio unreasonably
searched and falsely arrested plaintiff for criminal trespass (id. {] 34-46);

(6) On June 28, 2001, defendant Billups refused to initiate an internal investigation
of the criminal trespass arrest (id. | 48);

(7) In July 2001, defendants Egizio and Desiderio learned that the niece of the owner
of the property on which plaintiff had allegedly trespassed had authorized plaintiff
to be there, but they withheld that information from the prosecutors (id. 50, 56);


to encompass the Police Department’s internal process for investigating complaints of police

misconduct. Defendants’ motion to dismiss Count VIII is, therefore, denied.

Count IX

In Count IX, plaintiff alleges that Desiderio, Egizio and the State’s Attorneys Konzal and
Rippy are liable for violating section 1985(3) for conspiring to have plaintiff found in criminal
contempt of court. The police officers say that these claims must be dismissed because plaintiff's
conclusory conspiracy allegation is contradicted by his allegations that the only overt acts in
furtherance of the conspiracy were taken by defendant Rippy.

The Court disagrees. Though plaintiff alleges that Rippy took most of the overt acts in
furtherance of the alleged conspiracy, (see Third Am. Compl. {{] 67-75), he also alleges that
Desiderio and Egizio helped Rippy compose the allegedly fraudulent petition for criminal contempt
(see id. | 73). That allegation is a sufficient basis for the Court to infer that Desiderio and Egizio
made an agreement with Rippy to violate plaintiff's rights.

The State’s Attorneys argue that the Eleventh Amendment shields them from these claims.
Ifplaintiffhad sued them in their official capacities, that would be true. See Hafer v. Melo, 502 U.S.
21, 30 (1985) (stating that Eleventh Amendment bars federal suits against states and state officials
sued in their official capacities). But plaintiff sues the State’s Attorneys in their individual
capacities, claims that the Eleventh Amendment does not bar. /d. at 31.

Moreover, contrary to defendants’ belief, the fact that plaintiff is suing them for action they
allegedly took in the course of their employment does not transform his personal capacity claims into

official capacity claims. Rather, as the Supreme Court stated in Hafer:

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employees of the State of Illinois, not of Will County. See Ingemunson, 133 Ill. 2d at 369. Thus,
there is no basis for holding the County vicariously liable for any of the torts the State’s Attorneys
may have committed against plaintiff.

The situation is different for the claims asserted against the State’s Attorneys. Those
defendants make no substantive argument for dismissal but contend the Court has no basis for
exercising supplemental jurisdiction over these state-law claims because the federal claims against
them have been dismissed.

The Court disagrees. In relevant part, the statute that confers supplemental jurisdiction on
this Court states:

[In any civil action of which the district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over all other claims that are so related

to claims in the action within such original jurisdiction that they form part of the

same case of controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a). The Court may to decline to exercise supplemental jurisdiction if, among other
reasons, it has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Though the Court has dismissed all of the federal claims plaintiff asserts against the State’s
Attorneys, the federal claims he asserts against the City defendants remain. Because we have not
dismissed all of the claims over which we have original jurisdiction, we have no basis for

relinquishing supplemental jurisdiction over the claims plaintiff asserts against the State’s Attorneys

in Counts XI-XIV.

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