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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TERINICA THOMAS, as Guardian and Independent 

Administrator of the ESTATE OF STEVEN TYREL 

ROSENTHAL, JR., Deceased,

Plaintiff,

vs.

CITY OF CHICAGO,

Defendant.

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20 C 4323

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

In her original complaint, Terinica Thomas, as independent administrator for the estate of 

her nephew Steven Tyrel Rosenthal, Jr., alleged excessive force claims against three unidentified 

Chicago police officers arising from the shooting death of Rosenthal. Doc. 1. Thomas amended 

her complaint under Civil Rule 15(a)(1)(A) to name the police officers, add an indemnification 

claim against the City of Chicago, and add a putative class claim against the City concerning its

policy of charging a $45 fee to comply with a document subpoena issued by a federal court. 

Doc. 8. Defendants answered the amended complaint as to the excessive force claim, Docs. 20, 

22, and the City moved to dismiss the subpoena fee claim, Doc. 21.

Thomas then filed motions to drop her excessive force claim and replead her subpoena 

fee claim, Docs. 35, 36, which the court granted, Doc. 37. Thomas’s second amended complaint 

concerns only the subpoena fees, alleging under 42 U.S.C. § 1983 that the City’s policy violates 

the Fourteenth Amendment and adding an unjust enrichment claim under Illinois law. Doc. 38. 

Thomas seeks an injunction prohibiting the City from collecting the fee and damages on behalf 

of Rosenthal’s estate and a putative class of others who have paid the fee. Id. at ¶¶ 35, 41, 49, 
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55. The City moves to dismiss the suit under Rule 12(b)(6). Doc. 51. The motion is granted as 

to the § 1983 claim, and the court exercises its discretion under 28 U.S.C. § 1367(c)(3) to 

relinquish supplemental jurisdiction over the unjust enrichment claim.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative 

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. 

Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider 

“documents attached to the complaint, documents that are critical to the complaint and referred 

to in it, and information that is subject to proper judicial notice,” along with additional facts set 

forth in Thomas’s brief opposing dismissal, so long as those additional facts “are consistent with 

the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) 

(internal quotation marks omitted). The facts are set forth as favorably to Thomas as those 

materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the 

facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United 

States, 881 F.3d 529, 531 (7th Cir. 2018).

On June 25, 2020, Thomas sent a request to the Chicago Police Department under the 

Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., for records about Rosenthal’s death. 

Doc. 38 at ¶ 12; Doc. 38-1. She received no response. Doc. 38 at ¶ 12. On July 23, Thomas

filed this suit against three unidentified Chicago police officers whom she believed were 

involved in the death, Doc. 1, and that day caused to be issued a subpoena to the Department

seeking the same records, Doc. 38 at ¶ 15; Doc. 38-4. On August 4, Thomas moved to compel 

compliance with the subpoena. Doc. 6. The court granted that motion the next day and ordered 
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the City—as the Department is not a suable entity separate from the City, see Courtney v. City of 

Chicago, 439 F. App’x 557, 558 (7th Cir. 2011)—to comply. Doc. 7.

Also on August 5, Thomas received a notice from the City that it charges a $45 fee to 

comply with a subpoena issued in a federal civil case. Doc. 38 at ¶ 16; Doc. 38-5. Thomas 

immediately paid the $45 fee, though she stated that her payment was made “over objection and 

under duress.” Doc. 38 at ¶ 17; Doc. 38-6.

Discussion

Thomas claims that the City’s subpoena fee policy violates the Fourteenth Amendment, 

and she seeks damages to remedy that violation on behalf of Rosenthal’s estate and a putative 

class of others who have paid the fee. Doc. 38 at ¶¶ 22-34, 46-47, 49. Thomas has standing to 

seek monetary relief: The estate’s alleged injury was $45, the subpoena fee policy caused that 

injury, and an order to return the $45 would redress the injury. See Czyzewski v. Jevic Holding 

Corp., 137 S. Ct. 973, 983 (2017) (“For standing purposes, a loss of even a small amount of 

money is ordinarily an ‘injury.’”); Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

528 U.S. 167, 180 (2000) (holding that, to demonstrate standing, a plaintiff must show an “injury 

in fact” that is “traceable to the challenged action” and that could be “redressed by a favorable 

decision”). This court therefore has jurisdiction to rule on the merits of Thomas’s § 1983 claim. 

See Warth v. Seldin, 422 U.S. 490, 498 (1975) (“In essence the question of standing is whether 

the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”).

Although the claim appears to sound in the register of procedural due process, id. at 

¶¶ 23, 30, Thomas clarifies in opposing dismissal that she now relies solely on an access-tocourts theory, Doc. 60 at 1-8. At the motion hearing, the court asked Thomas whether she

asserts any federal claim other than her access-to-courts claim, and Thomas confirmed that she 
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does not. Doc. 64. Thomas certainly did not forfeit an access-to-courts theory by failing to 

expressly reference it in her complaint. See Joseph v. Elan Motorsports Techs. Racing Corp., 

638 F.3d 555, 561 (7th Cir. 2011) (“A complaint need not plead legal theories.”) But she has 

forfeited, or perhaps even waived, any other constitutional theories by disclaiming them in 

opposing the City’s motion to dismiss. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 

534, 538 (7th Cir. 2012) (“We have repeatedly held that a party waives an argument by failing to 

make it before the district court. That is true whether it is an affirmative argument in support of 

a motion to dismiss or an argument establishing that dismissal is inappropriate.”).

So only the access-to-courts claim remains, and that claim fails as a matter of law. As the 

Seventh Circuit recently explained, the Supreme Court has “bifurcated access-to-court claims 

into two categories: ‘forward-looking,’ and ... ‘backward-looking’ claims.” Harer v. Casey, 962 

F.3d 299, 306 (7th Cir. 2020) (quoting Christopher v. Harbury, 536 U.S. 403, 413-14 & n.11 

(2002)). A forward-looking claim alleges “that official action is presently denying an 

opportunity to litigate for a class of potential plaintiffs” and seeks “to place the plaintiff in a 

position to pursue a separate claim for relief once the frustrating condition has been removed.” 

536 U.S. at 413. The complaint does not allege that Thomas plans to file any future suit for 

which she will need to serve a subpoena on the City. As for this suit, with the City now a 

defendant—which it was not when she served her subpoena the day she filed suit against the 

three then-unidentified officers—Thomas could pursue discovery against the City under Civil 

Rules 26-37, without resort to Rule 45. It follows that her access-to-courts claim is not forwardlooking. See In re Maxy, 674 F.3d 658, 661 (7th Cir. 2012) (dismissing a forward-looking 

access-to-courts claim where the plaintiff did not identify “the underlying legal claims frustrated 

by the [obstacle]”).
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“Backward-looking claims,” by contrast, “concern ‘specific cases that cannot now be 

tried (or tried with all material evidence), no matter what official action may be in the future.’” 

Harer, 962 F.3d at 307 (quoting Christopher, 536 U.S. at 413-14). The elements of a viable

backward-looking claim are: “(1) a nonfrivolous, underlying claim; (2) the official acts 

frustrating the litigation; and (3) a remedy that may be awarded as recompense but that is not 

otherwise available in a suit or settlement.” Id. at 308.

On the first element, Thomas points to her excessive force claim as the nonfrivolous, 

underlying claim. Doc. 60 at 4. She does not mention, however, that she voluntarily dismissed 

that claim after concluding that she lacked “sufficient evidence to proceed in good faith with her 

claim for excessive force.” Doc. 35 at ¶ 4. Thomas has thus conceded that the claim proved 

frivolous upon further investigation. Her backward-looking access-to-courts claim fails on this 

ground alone.

In addition, on the second element, Thomas has no plausible claim that the $45 subpoena 

fee frustrated her ability to pursue her excessive force claim. Thomas paid the fee without delay

on August 5, received the information she needed regarding the identities of the three officers, 

and filed an amended complaint naming the officers, and the officers and the City answered the 

excessive force claim. Docs. 38-6, 8, 20, 22. When a plaintiff successfully overcomes obstacles 

and presents her claim, she cannot then prosecute a derivative access-to-courts claim, as her 

access to the courts has not been frustrated. See Vasquez v. Hernandez, 60 F.3d 325, 329 (7th 

Cir. 1995) (holding that, although a “deplorable” police cover-up delayed the filing of the 

underlying claims, the plaintiffs’ “constitutional rights were ultimately preserved” because they 

were able to file the underlying suit within the statute of limitations).
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On a more fundamental level, a $45 subpoena fee cannot possibly violate the right of 

access to courts, at least under the circumstances presented here. When Thomas brought this 

suit, it cost $400 to file a civil case in federal court. See 28 U.S.C. § 1914 (directing the clerk of 

each district court to charge a $350 filing fee plus any additional fee prescribed by the Judicial 

Conference of the United States); Jud. Conf. of the U.S., Report of the Proceedings of the 

Judicial Conference of the United States, Sept. 11, 2012, at 13, 

https://www.uscourts.gov/sites/default/files/2012-09.pdf (imposing an additional $50 fee 

effective May 1, 2013). If Thomas were correct that a $45 fee violates the Constitution, then the

filing fees authorized by Congress and implemented by the courts certainly would as well. But 

they do not, as the Seventh Circuit held in upholding the Prison Litigation Reform Act’s threestrikes rule, 28 U.S.C. § 1915(g), which generally bars prisoners from proceeding in forma 

pauperis after three of their suits have been dismissed. See Lewis v. Sullivan, 279 F.3d 526, 528 

(7th Cir. 2002) (“Federal courts are subsidized dispute-resolvers; filing fees defray only a small 

portion of the costs. A requirement that plaintiffs cover some of these costs cannot be called 

unconstitutional. The Supreme Court has never held that access to the courts must be free; it has 

concluded, rather, that reasonably adequate opportunities for access suffice.”). The access-tocourts claim therefore fails.

In urging the contrary result, Thomas argues that Civil Rule 45 does not authorize the

City’s $45 subpoena fee. Doc. 60 at 2. But the right of access to courts flows from the 

Constitution, not the civil rules. See Christopher, 536 U.S. at 415 n.12 (noting that the access-tocourts right inheres in, among other constitutional provisions, the First Amendment’s Petition 

Clause and the Fourteenth Amendment’s Due Process Clause). It follows that Thomas’s

argument does not bolster her access-to-courts claim, but instead suggests an attempt to enforce 
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the civil rules themselves against the City. That attempt fails as a matter of law because the civil 

rules do not confer substantive rights. See 28 U.S.C. § 2072(a)-(b) (providing that the “rules of 

practice and procedure ... shall not abridge, enlarge or modify any substantive right”); 

Turubchuk v. S. Ill. Asphalt Co., 958 F.3d 541, 549 (7th Cir. 2020) (overturning a verdict for 

negligent misrepresentation where the district court relied on Civil Rule 26 to supply the duty of 

care, reasoning that the Rules Enabling Act does not allow the rules to expand substantive 

rights). Thomas cannot sue under § 1983 to enforce her interpretation of Rule 45.

Only Thomas’s claim for unjust enrichment under Illinois law remains, Doc. 38 at ¶¶ 36-

41, and because the parties are not of diverse citizenship, the only basis for jurisdiction over that 

claim is the supplemental jurisdiction under 28 U.S.C. § 1367(a). Section 1367(c)(3) provides 

that “[t]he district courts may decline to exercise supplemental jurisdiction over a claim under 

subsection (a) if ... the district court has dismissed all claims over which it has original 

jurisdiction.” 28 U.S.C. § 1367(c)(3). “As a general matter, when all federal claims have been 

dismissed prior to trial, the federal court should relinquish jurisdiction over the remaining 

[supplemental] state claims.” Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007); see also 

Dietchweiler ex rel. Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (same). That 

general rule has three exceptions: “when the [refiling] of the state claims is barred by the statute 

of limitations; where substantial judicial resources have already been expended on the state 

claims; and when it is clearly apparent how the state claim[s] [are] to be decided.” Williams, 509 

F.3d at 404; see also RWJ Mgmt. Co. v. BP Prods. N. Am., Inc., 672 F.3d 476, 480 (7th Cir. 

2012) (same).

None of the exceptions applies here. First, if this court relinquishes supplemental 

jurisdiction over the unjust enrichment claim, Illinois law would give Thomas one year to refile 
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the claim in state court if its limitations period expired while the case was pending here. See 

Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 515 (7th Cir. 2009) (citing 735 ILCS 

5/13-217); Davis v. Cook Cnty., 534 F.3d 650, 654 (7th Cir. 2008) (same). Second, substantial 

federal judicial resources have not yet been committed to the unjust enrichment claim. Third, it 

is not “absolutely clear how the [supplemental] claim[] can be decided.” Wright v. Associated 

Ins. Cos., 29 F.3d 1244, 1251 (7th Cir. 1994). Because no exception applies, relinquishing 

jurisdiction over the claim is the appropriate course under § 1367(c)(3). See Dietchweiler, 827 

F.3d at 631; RWJ Mgmt. Co., 672 F.3d at 479-82.

Conclusion

Thomas’s § 1983 claim is dismissed under Rule 12(b)(6), and the court exercises its 

discretion under 28 U.S.C. § 1367(c)(3) to relinquish its supplemental jurisdiction over her

unjust enrichment claim. The City also filed a Rule 12(b)(1) motion arguing that Thomas lacked 

standing to seek an injunction against the City’s policy through her § 1983 claim. Doc. 51 at ¶ 3; 

Doc. 52 at 4-6. That motion is denied as moot. As noted, Thomas had standing to pursue a 

damages remedy on her § 1983 claim, which allowed the court to consider the claim’s merits 

under Rule 12(b)(6). With the § 1983 claim dismissed on the merits, there is no need to decide 

whether Thomas would have had standing to pursue injunctive relief had the claim survived

dismissal. See Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008) (“While it is true that [the 

plaintiff] may no longer be entitled to all types of relief that he requested, the law does not 

preclude a plaintiff from filing suit simply because some forms of relief may be unavailable, or 

indeed because in the end he cannot prove that he is entitled to any relief.”).

The dismissal of the § 1983 claim is with prejudice, as Thomas has already filed three 

complaints in this case. See Bank of Am., N.A. v. Knight, 725 F.3d 815, 818-19 (7th Cir. 2013) 
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(“The Bank insists that the district judge abused his discretion by dismissing the complaint with 

prejudice rather than allowing it to try again. But in court, as in baseball, three strikes and you’re 

out.”); Agnew v. NCAA, 683 F.3d 328, 347 (7th Cir. 2012) (affirming dismissal with prejudice 

after the “plaintiffs had three opportunities to identify a relevant market in which the NCAA 

allegedly committed violations of the Sherman Act”); Doc. 37 (“The court will view any future 

motions for leave to amend with a far more critical eye.”). Moreover, Thomas does not request 

further leave to amend, and the court can discern no amendment that would cure the flaws in her

§ 1983 claim. See Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 335 (7th Cir. 

2018) (“Nothing in Rule 15, nor in any of our cases, suggests that a district court must give leave 

to amend a complaint where a party does not request it or suggest to the court the ways in which 

it might cure the defects. To the contrary, we have held that courts are within their discretion to 

dismiss with prejudice where a party does not make such a request or showing.”); GonzalezKoeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015) (“A district court acts within its discretion in 

... dismissing a complaint with prejudice ... when the plaintiff fails to demonstrate how [an] 

amendment would cure the deficiencies in the prior complaint.”). Judgment will be entered in 

the City’s favor and against Thomas.

May 13, 2021 ____________________________________

United States District Judge