A. Injury

Movants argue that Theriault fails to allege that he was injured beyond the cost and
annoyance of defending the underlying action. Penn v. Harris, 276 F.3d 573, 576 (7th Cir, 2002).
But Theriault alleges that he suffered loss of liberty, property, reputation, and other injuries. Further,
‘Theriault allegedly suffered these injuries as the result of two criminal proceedings that lasted from
May 2000 until October 2002 based on the deliberate falsification of information at two probable
cause hearings. These allegations satisfy the injury that Penn requires a plaintiff to allege.
B. Commencement or Continuation of Criminal Proceedings

Defendants argue that the complaint fails to allege movants commenced or continued
criminal proceedings against Theriault. Indeed, no movant signed Theriault’s criminal complaints.
However, Theriault need only allege that defendants “played a significant role in causing [his]
prosecution." Frye vy. O'Neill, 166 Ill. App. 3d 963, 975, 520 N.E.2d 1233, 1240 (4th Dist. 1988).
Theriault claims that Perille directed DiJohn to call Raftery in order to file criminal allegations.
Rafiery’s acceptance of a phone call is insufficient to allege that Raftery played a significant rote in
causing Theriault’s prosecution. ‘Theriault’s allegations against Smith are more substantial. The
complaint alleges that DiJohn falsely testificd at Theriault’s first probable cause hearing based on
instructions from Perille and Smith. Because Theriault’s initial prosecution was based on the court's
finding of probable cause after DiJohn’s alleged false testimony, the complaint sufficiently alleges

that Smith used improper influence to secure prosecution. Reed, 77 I'.3d at 1053. The complaint

fails to allege that any other movant played a role in causing Theriault’s prosecution.



continuing criminal proceedings against Theriault without probable cause, Theriault has satisfied
minimal pleading requirements and the civil conspiracy claim stands.
CONCLUSION

Count I sufficiently alleges that Smith played a significant role in causing Theriault’s
prosecution. Smith is not immune from suil under 745 IICS 10/2-201 because his alleged
participation in securing false testimony at a probable cause hearing is not a discretionary act. Count
1is dismissed as to the Village of Schaumburg, Raftery, Christiansen, Chapman, and Casler. The
complaint fails to allege that these defendants played a significant role in causing Theriault’s
prosecution, Count If is dismissed as to all movants. Theriault fails to allege that the Village of
Schaumburg violated his rights as a result of municipal policy or custom. Theriault’s Fourth
Amendment claim under § 1983 does not allege that movants other than Smith caused his
constitutional deprivations. ‘Theriault’s claim against Smith under § 1983 is untimely.

The motion to dismiss Counts III, [{V, and V is denied. Federal notice pleading docs not
require Theriault’s complaint to be more [actually specific. The complaint contains all necessary
elements to allege intentional infliction of emotional distress, conspiracy under § 1985, and civil

conspiracy under Tllinois law.

December 11, 2002 ENTER:

B Orabrw

Sitzanke B. Conlon
United States District Judge



A. Allegations Against a Municipality

To state a cause of action against the Village of Schaumburg, Theriault must allege that (i)
he suffered a deprivation of a federal right, (ii) as a result of either an express municipal policy,
widespread custom, or deliberate act of a decision-maker with final policy-making authority for the
municipality, which (iii) was the proximate cause of his injury. /d., citing Monell, 436 U.S. at 690-
91 (1978). Theriault fails to make these allegations. Consequently, Count LI is dismissed as to the
Village of Schaumburg.
B. Claims for Malicious Prosecution under 42 U.S.C. § 1983

In Newsome v, McCabe, 256 F.3d 747, 751 (7th Cir. 2001), the Seventh Circuit explained
there is no constitutional right not to be prosecuted without probable cause. Jd at 750-51.
Therefore, ‘Theriault may not state a § 1983 claim simply by alleging that he was maliciously
prosecuted. Penn v. Harris, 296 F.3d 573, 576 (7th Cir. 2002). Further, a tort claim under state law
obviates a constitutional theory of malicious prosecution, Newsome, 256 F.3d at 750. However, a
plaintiff may be able (o state a Fourth Amendment claim under § 1983 if probable cause did not exist
at the time of the arrest. Newsome, 256 F.3d at 750; Corbett v, White, 2001 WL 1098054 (N.D. Ill.
2001), The complaint alleges that probable cause did not exist at the time of Theriault’s arrest
because the court twice made incorrect rulings based upon false testimony. Theriault may be able
to allege violations of his Fourth Amendment rights. But liability under § 1983 does not attach
unless the individual defendant caused the constitutional deprivation. Luck v. Rovensteine, 168 V'.3d
323, 327 (7th Cir. 1999), As specifically alleged in the complaint, Smith encouraged falsified

testimony that resulted in an alleged false finding of probable causc. Although the federal rules

provide for notice pleading, Theriault’s factually detailed complaint alleges that only Smith took part



C. Immunity under 745 ILCS 102-201

Movants argue that Smith enjoys immunity under 745 ILCS 10/2-201 from liability resulting
trom discretionary acts. Unlike cases cited by movants, Anderson y. Village of Forest Park, 238 Ill.
App. 3d 83, 94 606 N.E.2d 205 (1992) (section 2-201 protects police officer making decision
whether to seize person for medical evaluation), Crowley v. Village of Berwyn, 306 Ill. App. 3d 496
(1999) (section 2-201 protects firefighter’s decision as to where to place ladder), Reese v. May, 955
F. Supp. 869, 875-76 (N.D. Ill. 1996) (officers’ actions in conducting criminal investigations were
discretionary), Smith is not immune from suit because his alleged participation in securing falsc
lestimony at a probable causc hearing is clearly not a discretionary act in determining policy under
2-201. Accordingly, Smith is not immune from suit.

TIT. Malicious Prosecution under 42 U.S.C. § 1983 (Count I)

To prove police officer liability under 42 U.S.C. § 1983, Theriault must show that (i) he was
deprived of a federal right, and (ii) that the deprivation was imposed upon him by one or more
persons acting under color of state law. Jenco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002).
Movants argue that Count II should be dismissed as to the Village of Schaumburg because the
complaint does not satisty the requirements of Monell v. New York City Department of Social
Services, 436 U.S. 658, 690-91 (1978). Movants argue that Count II should also be dismissed as to
the other movants because § 1983 claims for malicious prosecution are no longer viable in the

Seventh Circuit, movants did not participate in any alleged constitutional deprivation, and the statute

of limitations precludes action against Smith’s alleged participation in encouraging false testimony.



conclusions, so long as those conclusions provide defendants with minimum notice of the claim).
‘Therefore, Theriault states a claim of intentional infliction of emotional distress.
¥. Conspiracy to Violate Civil Rights under 42 U.S.C. § 1985 (Count IV)

To establish conspiracy under 42 U.S.C. § 1985, Theriault must allege (i) an agreement
among defendants to deprive him of his Constitutional rights, and (ii) actual deprivation of those
rights in the form of overt acts in furtherance of the agreement. Vukadinovich v. Zentz, 995 F.2d
750, 756 (7th Cir. 1993). Movants argue that the complaint fails to allege violation of an underlying
constitutional right. However, Theriault alleges an agroement and specific overt acts that caused him
to be arrested and charged with criminal offenses without probable cause in violation of his
constitutional rights. These allegations sufficiently put defendants on notice of the charges, and
Count IV withstands dismissal.

VI. Civil Conspiracy under State Law (Count V)

Under Illinois law, a civil conspiracy claim must include allegations of an agreement and a
tortious act committed in furtherance of that agreement. Credit Ins. Consultants, Inc. v. Gerling
Global Reinsurance Corp. of America, 210 F, Supp. 2d 980, 986 (N.D. Ill. 2002), citing McClure
v. Owens Corning Fiberglas Corp., 188 Tl.2d 102, 133, 241 Tll.Dec. 787, 720 N.E.2d 242, 258
(1999), Conelusory allegations of a combination of acts as a conspiracy is not sufficient to state a
claim for conspiracy. Buckner v, Atlantic Plant Maintenance, Inc., 182 H1.2d 12,23, 230 Il.Dec.
596, 694 N.L.2d 565, 571 (1998). Movants argue that Theriault fails to allege any tortious conduct
or constitutional violations, However, Theriault specifically alleges that an agrecment between

defendants existed in order to present perjured testimony for the purpose of commencing and



Minute Qeder Form (06297)

United States District Court, Northern District of Illinois

iH ssi xt ud er
se Magiteate Dudes Suzanne B. Conlon “than Assigned dee
CASE NUMBER 02 € 7058 DATE 12/11/2002
CASE THERIAULT vs. VILLAGE OF SCHAUMBURG, et al.
TITLE

[ln the following box (u) indicate the party filing the motion, ¢.2.. plaintiff, defendant, 3rd party plainGff, and (h) state briefly the nature
of the motion being presented. |

MOTION:

DOCKET ENTRY:

(dy oO Filed motion of | use listing in “Motion” box above.]

Q) oO Brief in support of motion due ___.

(3) Oo Answer brief to motion due_____. Reply to answer brief due.

(4) o Ruling/Hearing on set for at

(3) Oo Status hearing|held/continued to} {set for/re-set for]on__—_ set for_ ss at_
(6) im Pretrial conference[held/continued to] [set for/re-set for]on set for_— ss at_
(7) Oo Trial[set for/re-set for]on____at_

(8) a (Bench/Jury trial] [Hearing] held/continued to__—_aat

(9) a ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CPRCP4(m) ClLocal Rule 41.1. OFRCP41(a(1) OO FRCP41(a)(2).

(1d) a [Other docket entry] Defendants’ motion to dismiss [4-1] is granted in part. Count | is dismissed as to
the Village of Schaumburg, John Raftery, Dirk Christiansen, David Chapman, and Richard Casler. Count II is
dismissed as to the Village of Schaumburg, John Raflery, Michael Smith, Dirk Christiansen, David Chapman, and
Richard Casler. The motion to dismiss Counts Il], TV, and V is denied. Defendants shall answer all remaining
claims by December 23, 2002. The court notes that plaintiff has failed to file a return of service as (o defendant
Capital Scourity and Investigations, Inc. ENTER MEMORANDUM OPINION AND ORDER.

ql) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

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No notices requ uwober of notions

EC 12 2002

dae docked

incketing deputy initials

a | Notices mailed by judge's staff.

fai

Natified counsel by telephone.

Docketing to mail notices,

Mail AO 450 form,

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Copy to judge/magistrate judge.

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courtracm 2 V2 2b JG 20 ays ited nation
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in the constitutional deprivation. Therefore, Count II is dismissed as to Raftery, Christiansen, and
Casler,
C. Statute of Limitations

‘The statute of limitations for claims arising under § 1983 is two years. 735 LCS § 5/13-202;
Ashafa y, City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998). Smith’s participation in the claimed
violation of Theriault’s constitutional rights occurred when he allegedly encouraged false testimony
at the probable cause hearing on May 25, 2000, which resulted in Theriault’s arrest on June 2, 2000.
The statute of limitations thus expired on June 2, 2002. Theriault filed his complaint October 2,
2002. Therefore, his Fourth Amendment claim under § 1983 against Smith is dismissed as untimely.
[V. Intentional Infliction of Emotion Distress under State Law (Count III)

To state a claim for intentional infliction of emotional distress under Illinois law, a plaintiff
must allege that (i) the defendant's conduct was extreme and outrageous, (ii) the defendant either
intended that his conduct inflict severe emotional distress, or knew there was a high probability that
his conduct would cause severe emotional distress, and (iii) the defendant's conduct in fact causcd
severe emotional distress, Doe v. Calumet City, 161 LlI.2d 374, 641 N.E.2d 498, 506 (1994). The
complaint contains all cloments necessary to allege intentional infliction of emotional distress.
Movants argue that Theriault must allege conduct that exceeds all bounds of human decency, but
federal notice pleading rules do not require a complaint to be more factually specific. Leatherman
v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-169 (1993)

("heightened pleading standards" are contrary to the system of notice pleading); Jackson y. Marion

County, 66 F.3d 151, 153 (7th Cir. 1995) (plaintiffs need not plead facts, they may plead



false testimony, the Circuit Court judge incorrectly found probable cause and ordered Theriault to

appear and answer the charges. The court twice granted the state’s motions to continue and the trial

was set for October 11, 2001. Theriault entered a plea of not guilty. Upon completion of the slate’s

case at trial, Theriault’s motion for a directed finding of not guilty was granted on both counts.
DISCUSSION

T. Legal Standard

A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson v. City of
Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the court considers
“whether relief is possible under any set of facts that could be established consistent with the
allegations." Pokuta vy, Trans World Airlines, inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley
v, Gibson, 355 U.S. 41, 45-46 (1957). A motion under Rule 12(b)(6) 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." Gibson, 355 U.S. at 45-46.

Il. Malicious Prosecution under State Law (Count I)

To establish a malicious prosecution action under Illinois law, a plaintiff must demonstrate
he was subjected to judicial proceedings for which no probable cause existed; defendants instituted
or continued the proceedings maliciously; the proceedings terminated in plaintiff's favor; and
plaintiff suffered injury. Sneed v. Rybicki, 146 F.3d 478, 480-81 (7th Cir. 1998); Reed v. City of
Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996), citing Curtis v. Bembenek, 48 F.3d 281, 286 (7th Cir.
1995). Movants argue Theriault’s complaint fails to allege that Theriault was injured, or that any

movant commenced or continued criminal proceedings against him. Movants also assert immunity

for discretionary acts under 745 ILCS 102-201.



On that day, Perille, owner of CS] and a patrol officer for the Village of Schaumburg, directed James
DiJohn, an employee of CSI, to report to Raftery of the Schaumburg Police Department that
Theriault deleted CSI computer files prior to leaving the premises, The next day, Perille directed
DiJohn to report that Theriault stole twenty-four P.E.R.C. cards, which are documents issued to
private detective license applicants.

On April 5, 2000, Theriault reported to Perille and the Illinois Department of Employment
Security that CSI was not paying for P.E.R.C. cards as required. Perille then contacted Smith at the
Schaumburg Police Department, stating that he wanted Theriault criminally charged with destroying
computer files and stealing P.E.R.C, cards. On April 12, 2000, Theriault filed a citizen complaint
against Perille on grounds that Perille violated state licensing laws and over-billed clients.
Schaumberg Police Chief Casler instructed the police department to ignore the complaint.

On May 23, 2000, Perille ordered DiJohn to sign a two-count complaint alleging criminal
damage to property and theft. Perille and Smith instructed DiJohn to falsely testify at a probable
cause hearing that Theriault destroyed computer records and had taken documents from CSI. Upon
considering DiJohn’s false testimony, the Circuit Court made an incorrect finding of probable cause
and issued a warrant for Theriault’s arrest. On June 2, 2000, Theriault was arrested, booked, and
released after posting bond.

The state filed four motions to continue the case. In December 2000, the court granted the
state’s motion to nolle prosequi the casc. Six months later, Perille refiled charges in the Circuit
Court of Cook County by signing a second two-count complaint. At the probable cause hearing,

Perille falsely testified that a secretary, Christine VanGemert, witnessed Theriault delete records

from a CSI computer. Perille offered no testimony regarding the P.E.R.C. cards. Based on Perille’s



IN THE UNITED STATES DISTRICT COURT a .
FOR THE NORTHERN DISTRICT OF ILLINOTS DGKE TES
FASTERN DIVISION DEC 1 2 2oqp

JOHN P. THERIAULT, JR.
Plaintiff, No. 02 C 7058
v. Suzanne B. Conlon, Judge

VILLAGE OF SCHAUMBURG, et al.,

were SS SE

Defendants.

MEMORANDUM OPINION AND ORDER

John Theriault, Jr. (“Theriault”) sucs Village of Schaumburg, Capital Security and
Investigations, Inc. (“CSI”), James Perille, John Raftery, Michael Smith, Dirk Christiansen, David
Chapman, and Richard Casler for malicious prosecution under state law (Count J, malicious
prosecution under 42 U.S.C. § 1983 (Count II), intentional infliction of emotional distress under state
law (Count IIT), conspiracy to violate civil rights under 42 U.S.C. § 1985 (Count IV), and. civil
conspiracy under state law (Count V). Defendants Village of Schaumburg, Raftery, Smith,
Christiansen, and Casler (collectively “movants”) move to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Theriault, who is represented by counsel, fails to respond.

BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the
complaint as true and draws all reasonable inferences in favor of the nonmovant. Stachon v, United
Consumers Club, Inc., 229 F.3d.673, 675 (7th Cir, 2000). CST hired Theriault to serve as a security

guard, supervisor of investigations, and office manager until Theriault resigned on January 28, 2000.

Id