Amendment activity. Plaintiffs brought four counts in their complaint but the current
motions only address Count II. This count alleges that pursuant to 42 U.S.C. § 1983,
Moke, Ruff, and Mr. and Mrs. Walter conspired to violate the First Amendment rights of
Plaintiff Larry Nardoni. Moke and Ruff are both moving to dismiss this count in
separate motions.

DISCUSSION

When deciding a Fed.R.Civ.P. 12(b)(6) motion to dismiss, all well-pleaded
factual allegations of the complaint are accepted as true and construed in a light most
favorable to the plaintiff. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7" Cir.
1992). If relief could be granted under any set of facts that could be proved consistent
with the allegations, the claim will survive. Hishon v. King & Spaulding, 467 U.S. 69, 73
(1984). A Rule 12(b)(6) motion to dismiss should not be granted “unless it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Conley v. Gibbon, 355 U.S. 41 , 45-46 (1957).

The purpose of § 1983 is to deter state actors and private individuals in
collaboration with state officials, from using a “badge of authority” to deprive individuals
of their Constitutional rights. Fries v. Helsper, 146 F.3d 452, 457 (7" Cir. 1998). The
statute says in part:

Every person who, under color of any statute, ordinance, regulation, custom

or usage, of any State or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress. 42 U.S.C.§ 1983.

Two conditions must be satisfied for a plaintiff to have a cause of action under § 1983:

4


the pleading stage, and it could not yet be said that the plaintiffs’ counts were merely
seeking a double recovery. Reddick, 2001 WL 789432 at *5.

Ruff also relies on Hostrop v.Board of Junior College Dist. No. 515, 523 F. 2d
569, 576 (7" Cir. 1975), in his reply brief. He correctly states that the court in Hostrop
affirmed the decision in favor of the defendants in regards to the conspiracy count.
Hostrop 523 F.2d at 576. The court stated that “the conspiracy count add[ed] nothing to
the substantive count.” Jd. However, this statement was made on appeal after a bench
trial in which the court found no violation of plaintiffs underlying substantive rights. Jd.
Unlike the case in Hostrop, the present case is only at the pleading stage, and it is not yet
possible to say that there has been no violation of plaintiffs underlying constitutional

rights.

CONCLUSION
For the foregoing reasons, defendants Moke and Ruff’s motions to dismiss Count

II are both denied.

SO ORDERED W197 A ENTERED:

heed LLL

HON. RONALD A. GUZ
United States Judge


First Amendment Rights under the United States Constitution. Along with this, Moke
also argues that although a violation of the Fourteenth Amendment is easier to allege,
Nardoni’s complaint also fails in this regard because it does not allege that Moke signed
a criminal complaint against Nardoni or advised Ruff or Mr. Walter to continue in their
actions against Nardoni. However, this argument is irrelevant. As stated in the first
footnote of Nardoni’s reply to Moke’s motion, Nardoni only mentions the Fourteenth
Amendment because it is a necessary requirement in order for him to take action against
these local officials through § 1983 and the First Amendment. Without the Fourteenth
Amendment, the requirements of the First Amendment would not apply to these local
officials, and Nardoni would only be able to sue them through state law claims. Krislov
vy. Rednour 226 F3d 851, 858.

Moke’s second argument puts forth that Count II, when stripped of the
constitutional verbiage, is really just a cause of action for malicious prosecution and that
these claims are better resolved under state tort law. A review of the complaint reveais
otherwise. Nardoni has set forth two different claims for malicious prosecution in
Counts III and IV of his complaint pursuant to Illinois common law. Count II is different
than those two counts and is an expressly stated claim in the complaint for conspiracy to
violate First Amendment rights pursuant to § 1983. Nardoni’s complaint states specific
facts showing how the defendants conspired together to set up false charges against him
and his daughter to punish him for speaking out about his political views as well as to
hinder his ability to continue to speak out. Therefore, with respect to Moke, Nardoni has
properly plead a cause of action for conspiracy to violate his First Amendment rights

pursuant to § 1983.


(1) the defendant(s) deprived him of a right secured by the Constitution or any law of the
United States; and (2) the deprivation of that right resulted from the defendant(s) acting
under color of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, (1970).

Since Count II alleges a conspiracy on behalf of the defendants, not only must the
requirements to bring an action under § 1983 be satisfied, but also the requirements of a
conspiracy under § 1983. To establish a conspiracy two elements must be satisfied: (1)
an express or implied agreement among defendants to deprive a plaintiff of his or her
Constitutional rights and (2) actual deprivation of those rights in the form of overt acts in
furtherance of the agreement. Vukadinovich v. Zentz, 995 F.2d 750, 756 (7" Cir. 1993),
Scherer v. Balkema 840 F. 2d 437, 442 (1988).

L Defendant Moke’s Motion to Dismiss

Defendant Moke makes two basic arguments in support of his motion to dismiss.
First, he argues that Nardoni’s allegations do not bring the First Amendment into play.
Because Nardoni’s complaint clearly states that defendants conspired to stop him from
speaking out about his political views, his First Amendment rights are implicated. More
specifically, the complaint alleges that Moke was directly involved in framing Nardoni
and his daughter with false criminal charges and that Moke entered into an agreement
with Ruff and Mr. and Mrs. Walter, to punish Nardoni for speaking out against Dr.
Jackson. The complaint further alleges that Moke encouraged Mr. and Mrs. Walter, to
bring the false charge against Nardoni’s daughter as well as cooperated with them to
carry out the charge. Furthermore, the complaint alleges that Moke met with Ruff and
planned the false “disorderly conduct” charge against Nardoni. Taking these allegation
as true, it can only be concluded that plaintiffs have stated a claim for violation of their

5


these allegations and the early stage of the case, it can not yet be said that both courits are
based on the same unconstitutional conduct.

Ruff also points out that § 1983 allows recovery for conspiracy to violate a clearly
established right, not for the conspiracy itself. Villareal vy. Chicago Police Officers, No.
88 C 8208, 1997 WL 242903, at *3 (N.D.III. May 5, 1997). In other words, it does not
create or punish conspiracy per se, only when coupled with the actual denial of a civil
right. Goldschmidt v. Patchett, 686 F. 2d 582, 585 (7" Cir. 1982). However, Nardoni
does not allege a conspiracy per se. He expressly states that he is alleging a conspiracy
to violate his First Amendment rights. The constitutional right is clearly identified as are
the overt acts.

Nardoni points out in his response to Ruff’s motion that by arguing that Count II
is the same as Count I, Ruff ignores the potential value of a separate conspiracy claim,
including “its evidentiary use and its use in spreading the net of liability to additional
persons.” Reddick v. Bloomingdale Police Officers, No. 96 C 1109, 2001 WL 789432, at
*5 (N.DLIIL. July 12, 2001). (quoting Quinones v. Szorc, 771 F.2d 289,291 (7" Cir.
1985)). A civil conspiracy claim can be used as a vehicle through which to impose
liability on each and all of the defendants without regard to the person doing the
particular act. Hostrop V. Board of Junior College Dist. No. 515, 523 F. 24 569,576 (7"
Cir. 1975). Nardoni clearly chose to take advantage of this principle since Count I is
only against Ruff and Count I is against Ruff, Moke, and Mr. and Mrs. Walter. It is too
early to tell how the two counts will actually play out. The court in Reddick came to a

similar conclusion when it denied the defendants’ motion because the case was only in


Minute Order Form (06/97)

o ~ United States District Court, Northern District of Illinois
Ni if Assigned Judy Si
roe Magistrate Judge Ronald A. Guzman than Assigned Judge
CASE NUMBER 02 C 944 DATE 7/19/2002

CASE LARRY G. NARDONLet al vs. DONALD MOKE,et al
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:
(1) im Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer brief due__.
(4) QO Ruling/Hearingon__—sset fora
(5) oO Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) im Pretrial conference{held/continued to] [set for/re-set for]on____setfor____—sat__— i.
(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]
CIERCP4(m) (General Rule 21 COFRCP41(a)(1) [1 FRCP41(a)(2).
(10) Wl (Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendants Moke and
Ruff’s motions to dismiss Count II are both denied. Status hearing set for 8/14/02 at 9:30a.m.

(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

lo notices required,
N quire number of notices

Notices mailed by judge’s staff.

JuL 2 2 Ale)

Notified counsel by telephone, date docketed

| Docketing to mail notices.
Mail AO 450 form.

LYRIS
Copy to judge/magistrate judge.
courtroom 00:5
TBK deputy’s
initials . soit
Dabertshatrebdivda th
central Clerk's Office mailing deputy initials



Il. Defendant Ruff’s Motion to Dismiss

Ruff makes only one argument in support of his motion to dismiss Count II. In
Nardoni’s amended complaint, Count I is a cause of action for violation of Constitutional
rights under § 1983, and Count II is a cause of action for a conspiracy to violate
plaintiffs’ Constitutional rights under § 1983. Ruff argues that Count II essentially
mirrors Count I and that the same alleged unconstitutional conduct can not be used for
both counts because Nardoni can not have a double recovery. In making his argument,
Ruff relies mainly on Thomas v. Drochner, No. 90 C 139, 1990 WL 77841 (N.D.III. May
18, 1990). In Thomas, the plaintiff alleged in one count that the defendant deprived her
of her Fourth Amendment rights by falsely charging and maliciously prosecuting her for
criminal child neglect and in another count that two defendants conspired to deprive her
of these same rights. Jd. at *5. Ruff is correct in arguing that the court in Thomas stated
that the unconstitutional conduct complained of in both counts was exactly the same. Jd.
at *5. He is also correct in pointing out that the court chose not to dismiss the conspiracy
count because the defendant moving to dismiss was not named as an actor in the first
count. Jd, at *5-6. However, the present case is distinguishable from Thomas. Unlike
the plaintiff in Thomas, Nardoni has alleged multiple actions by Ruff. Jd. at *5. Ruff is
reading the complaint too narrowly when he concludes that both counts use the same
unconstitutional conduct. Ruff allegedly did actions on his own, such as signing the
complaint for Nardoni’s “disorderly conduct” charge and directing a teacher to distribute
statements hinting that Nardoni was guilty even after the charge was dismissed. He also
allegedly performed actions in concert with Moke, and Mr. and Mrs. Walter, such as
making an agreement with them to frame Nardoni’s daughter with a theft charge. Due to

7


responded that he was going to get Moke to apologize to his wife for not keeping her
informed.

Sometime around January 6, 2001, Nardoni received notice from the Cook
County State’s Attorney’s Office that his daughter had been arrested for a crime and that
her appearance was required at the courthouse. However, before the scheduled
appearance date, the Nardonis were told that her appearance date had been postponed,
and the charges were later dropped.

The conflict continued on or around January 12, 2001 when Ruff signed a
criminal complaint against Nardoni charging him with “disorderly conduct” for
“alarming Ruff and provoking a breach of the peace by making verbal threats against
Moke.” Nardoni alleges that Moke met with Ruff to further conspire against him and
make up these threats. Subsequently, Nardoni was later served with a summons to
appear in court regarding the charges. After these charges became public, Nardoni’s
business sales decreased, and he was asked to resign his office as School Board
President. The charges were dismissed by the Circuit Court of Cook County in late
March 2001 because they failed to state a claim.

Nardoni further alleges that after the charges were dropped, Ruff directed a
teacher to write and distribute statements giving the impression that Nardoni was in fact
guilty of the misconduct. As previously stated, this pattern of events took place during
the April 2001 Steger School Board Election, and Nardoni lost his election while Mr.
Walter was elected and Moke was hired as Superintendent. Plaintiffs filed this suit in
February of 2002, alleging that the defendants’ acts were motivated by Nardoni’s
exercise of his First Amendment rights, and they had a chilling effect on his First

3


purposes of these motions, will be accepted as true. Plaintiff Larry G. Nardoni
(“Nardoni”) was elected President of the Steger School Board on November 9, 2000. He
and his supporters favored the appointment of Dr. Jackson for Superintendent and
campaigned for him in the April 2001 election. Defendant Patrick Walter (“Mr.
Walter”), along with others, sought election to the Steger School Board and campaigned
against Nardoni. Mr. and Mrs. Walter supported Jackson’s opponent, Defendant Donald
Moke (“Moke”). Moke had been rejected for the position of Superintendent on three
previous occasions, and Nardoni and other members had previously voted to freeze
Moke’s salary for one year.

Nardoni alleges that because defendants disagreed with his outspoken political
support for Dr. Jackson as well as his conduct with respect to Moke’s salary, they
conspired to wage a “retaliation campaign” against Nardoni, which included framing
Nardoni and his daughter on false criminal charges.

The first charge came about on November 29, 2000 when defendants Mr. and
Mrs. Walter’s son lost his necklace at basketball practice. The Walters allegedly reported
false information to the Steger police, commencing juvenile proceedings against
Nardoni’s daughter for the theft of the necklace. A school janitor later found the
necklace, and Moke was informed that the necklace was located. However, despite the
knowledge of the found necklace, juvenile proceedings against Nardoni’s daughter
continued. Sometime around January 5, 2001, Nardoni saw defendant Gerald Ruff
(“Ruff”) on duty in his car. The men conversed about the necklace issue and whether the

charge had been dropped. Ruff told Nardoni that it had been dropped. Nardoni


UNITED STATES DISTRICT COURT JUL 2 22002,
NORTHERN DISTRICT OF ILLINOIS

LARRY G. NARDONI and
CHRISTIANNA V. NARDONI,

a minor, by her parents and guardians,
LARRY G. NARDONI and

NANCY L. NARDONI,

)
)
)
)
)
)
Plaintiffs, )
vs. ) No. 02 CV 944
) Judge Ronald A. Guzman
DONALD MOKE, GERALD RUFF, )
PATRICK WALTER, LETICIA )
WALTER, and VILLAGE OF STEGER, _)
ILLINOIS, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Larry G. Nardoni brings this action with his wife, Nancy L. Nardoni,
pursuant to 42 U.S.C. § 1983 (alleging violations of the First Amendment to the United
States Constitution) and Illinois common law, on behalf of himself and the couple’s
daughter, Christiana V. Nardoni, a minor, against Donald Moke, former principal of
Central Junior High School; Gerald Ruff, a police officer employed by the Village of
Steger; Patrick Walter, a Steger School Board Member and father of John Walter; Leticia
Walter, mother of John Walter; and the Village of Steger, an Illinois municipal
corporation. Defendants Moke and Ruff have both moved separately to dismiss Count II
of plaintiffs’ complaint against them. For the following reasons, both motions are
denied.

BACKGROUND
The facts of this case are taken from plaintiffs’ amended complaint and for b

1