UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREW PEIRICK,

Plaintiff,

v.

PIOTR DUDEK,

Defendant.

No. 20 CV 3013

Judge Manish S. Shah

ORDER

Defendant’s partial motion to dismiss, [19], is denied. Dudek has leave to 

amend his answer by December 3, 2020. The parties shall file a joint status report 

with a proposed discovery schedule by December 3, 2020. 

STATEMENT

Piotr Dudek, an Illinois State Trooper, stopped Andrew Peirick for speeding on 

I-90 West. [20] ¶¶ 6–7.1 After approaching the vehicle, Dudek falsely accused Peirick 

of driving under the influence and arrested him without probable cause to believe he 

committed an offense. Id. ¶¶ 8, 14. During the arrest, Dudek used excessive force, 

tightly handcuffing Peirick’s arms behind his back and causing visible injuries

including “red marks, bruises, numbness, [and] pain and swelling to his hands and 

wrists.” Id. ¶¶ 9, 13. Peirick complained at least seven times that the handcuffs were 

too tight and injuring him. Id. ¶ 10. Dudek falsely charged Peirick with a DUI; he 

fabricated evidence and police reports; and he falsely testified that Peirick said he 

had six drinks when he never made such a statement. Id. ¶¶ 15–16.

Peirick sues Dudek under 42 U.S.C. § 1983 for using excessive force in violation 

of his Fourth and Fourteenth Amendment rights, and for malicious prosecution under 

Illinois law. Dudek moves to dismiss under Federal Rule of Civil Procedure 12(b)(6).

A complaint must contain a short and plain statement that plausibly suggests 

a right to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers 

are taken from the CM/ECF header placed at the top of filings. Facts are taken from the first 

amended complaint, [20], and its allegations are assumed to be true when evaluating whether 

the complaint states a claim.

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To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts sufficient 

“to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555 (2007). A court must accept the complaint’s factual allegations as 

true and draw all reasonable inferences in the plaintiff’s favor, but it need not do the 

same for legal conclusions or “threadbare recitals” supported by only “conclusory 

statements.” Iqbal, 556 U.S. at 678. 

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person 

acting under color of state law violated plaintiff’s federal constitutional rights. D.S. 

v. East Porter County School Corp., 799 F.3d 793, 798 (7th Cir. 2015). To state a claim 

for malicious prosecution in Illinois, a plaintiff must show (1) commencement or 

continuance of an original criminal or civil judicial proceeding by the defendant; 

(2) termination of the case in the plaintiff’s favor; (3) absence of probable cause for 

the proceeding; (4) malice; and (5) damages. Beaman v. Freesmeyer, 2019 IL 122654, 

¶ 26.

Dudek’s partial motion to dismiss advances two immunity-based arguments. 

For the federal claim, Dudek argues that the Eleventh Amendment bars the § 1983 

suit to the extent that it is against him in his official capacity. [19] at 6–7. But Peirick 

does not bring a claim against Dudek in his official capacity. When a complaint fails

to specify whether a § 1983 claim is brought against a defendant in his official or 

individual capacity, resolution of the issue turns on the relief sought. Miller v. Smith, 

220 F.3d 491, 494 (7th Cir. 2000). The inquiry is simple: when a plaintiff seeks 

injunctive relief, then he has brought an official-capacity suit; but when the plaintiff 

seeks damages, he has brought a personal-capacity suit. Id.; see also Hill v. 

Shelander, 924 F.2d 1370, 1373–74 (7th Cir. 1991). While Peirick does not use the 

phrase “individual capacity” in his complaint, his claim is against Dudek in his 

individual capacity because he seeks only damages. [20] ¶ 20. The Eleventh 

Amendment does not bar the claim.

Dudek next argues that the malicious-prosecution claim is barred by the 

doctrine of state sovereign immunity. [19] at 4–6; [26] at 2–5. The State Lawsuit 

Immunity Act prohibits plaintiffs from suing the state. 745 ILCS 5/1. A suit against 

a state official in his individual capacity may be considered a suit against the state 

itself if three conditions are met: (1) if there are no allegations that a state employee 

acted beyond the scope of his authority through wrongful acts; (2) if the duty alleged 

to have been breached was not owed to the public generally, independent of the fact 

of state employment; and (3) if the complained-of actions involve matters ordinarily 

within that employee’s normal and official functions of the state. Murphy v. Smith, 

844 F.3d 653, 658 (7th Cir. 2016) (citing Healy v. Vaupel, 133 Ill.2d 295 (1990)). But 

sovereign immunity does not apply if the plaintiff alleges that a state official or 

employee violated “statutory or constitutional law” or acted beyond the scope of their 

authority. Murphy, 844 F.3d at 658–59. While lawful and official acts of state officers 

are regarded as acts of the state itself, “illegal acts performed by the officers are not.” 

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Id. at 659 (quoting Leetaru v. Board of Trustees of Univ. of Ill., 2015 IL 117485, ¶ 46 

(2015)). This exception is aimed “at situations where the official is not doing the 

business which the sovereign has empowered him or her to do or is doing it in a way 

which the law forbids.” Leetaru, 2015 IL 117485, ¶ 47.

Peirick’s malicious-prosecution claim lies against Dudek and not the state.

Peirick’s claim is based on the allegation that Dudek fabricated evidence, police 

reports, and testimony. [22] at 2–4. In Illinois, “the duty not to make false accusations 

of criminal conduct is imposed by the Illinois Criminal Code, which makes no 

distinction between accusations by state employees and those leveled by non-state 

employees.” Fritz v. Johnston, 209 Ill.2d 302, 314 (2004) (citing 720 ILCS 5/26-

1(a)(4)). Dudek’s authority as a state trooper did not extend to the unlawful act of

falsifying evidence and testimony to maintain a prosecution that lacked probable 

cause. And while Dudek’s job entails filing police reports and testifying, he remained 

bound by the duty to refrain from making false accusations of criminal conduct, 

regardless of his state employment. At the pleading stage, Peirick has adequately 

alleged both that Dudek acted beyond the scope of his authority and that the duty 

owed was independent of Dudek’s state employment.

Dudek argues that state sovereign immunity still applies because a judgment 

for Peirick would subject the state to liability and control its actions. [19] at 6. Not so. 

Dudek was acting without lawful authority when he allegedly fabricated evidence 

and gave false testimony of criminal conduct. Because the state “cannot justifiably 

claim interference with its functions when the act complained of is unauthorized or 

illegal,” a judgment for Peirick here would not alter or control actions of the state. 

Leetaru, 2015 IL 117485, ¶ 47.

Finally, Dudek argues that Parmar v. Madigan, 2018 IL 122265, altered the 

legal landscape, barring application of the “officer suit” exception to any suits for 

damages against state employees. [26] at 2–5. The officer suit exception—also called 

the “prospective injunctive relief exception”—allows a plaintiff to sue a state officer 

without offending sovereign immunity principles, so long as the plaintiff seeks to 

prospectively enjoin the unlawful conduct of the officer. Parmar, 2018 IL 122265, 

¶ 22. In Parmar, the plaintiff sued Illinois’s Treasurer and Attorney General based 

on their administration of the state’s estate tax. Id. ¶ 25. The plaintiff did not allege 

that either official acted in excess of their authority, but rather, that their conduct 

was unlawful because the Illinois Estate Tax Act was unconstitutional. Id. ¶¶ 25–26.

The Illinois Supreme Court held that the plaintiff’s claim, which sought damages in 

the form of a tax refund, was barred by state sovereign immunity because “a 

complaint seeking damages for a past wrong does not fall within the officer suit 

exception to sovereign immunity.” Id. ¶ 26 (citing Leetaru, 2015 IL 117485, ¶ 51). 

Under Parmar, Dudek argues, Peirick’s malicious-prosecution claim must be 

dismissed because it is “solely for damages” and thus “the officer suit exception to 

state law sovereign immunity does not apply.” [26] at 5.

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For sovereign immunity or the officer suit exception to apply in the first place,

however, claims must be brought against the state. That determination turns not on 

the relief sought, but rather on the source of the duty the employee is charged with 

breaching. See Currie v. Lao, 148 Ill.2d 151, 159 (1992). Accordingly, when “an 

employee of the State, although acting within the scope of his employment, is charged 

with breaching a duty that arose independently of his State employment, a suit 

against him will not be shielded by sovereign immunity.” Id. at 159; see also Healy, 

133 Ill.2d at 308 (“Sovereign immunity affords no protection ... when it is alleged that 

the State’s agent acted in violation of statutory or constitutional law or in excess of 

his authority, and in those instances an action may be brought in circuit court.”).

Unlike the plaintiff’s claims in Parmar, Peirick’s claims are not against the 

state and so sovereign immunity does not apply. The duty allegedly breached in

Parmar arose solely from the Attorney General and Treasurer’s lawful authority to 

enforce an Illinois tax law. Here, by contrast, the duty not to make false accusations 

of criminal conduct is a general duty imposed on the public as a whole. See Fritz, 209

Ill.2d at 314. Dudek is therefore “no more entitled to immunity than is a private 

individual who breaches that same duty; the mere fact of his State employment 

should not endow him with heightened protection.” Currie, 148 Ill.2d at 160. I do not 

read Parmar to abrogate Currie and Fritz, two cases it does not cite. Sovereign 

immunity does not bar Peirick’s state-law claim.

ENTER:

Date: November 12, 2020

Manish S. Shah

U.S. District Judge

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