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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN M. MARSZALEK, et al.,

Plaintiffs,

v. 

BRENDAN KELLY, et al.,

Defendants,

BRUCE DAVIDSON, et al.

Plaintiff-Intervenors,

v. 

BRENDAN KELLY, et al.,

Defendants in Intervention. 

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No. 20-cv-4270

Hon. Mary M. Rowland

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR 

MOTION TO DISMISS INTERVENOR-PLAINTIFFS’ 

AMENDED COMPLAINT IN INTERVENTION

Defendants Brendan F. Kelly, individually. acting under color of state law as Director of 

the Illinois State Police (“ISP”), and Jessica Trame1, individually, acting under color of state law

as Bureau Chief of the Illinois State Police Firearms Services Bureau, through Kwame Raoul, 

Attorney General of Illinois, and in support of their Motion to Dismiss Intervenor-Plaintiffs

Bruce Davidson and Sarah Davidson’s Amended Complaint Pursuant to Federal Rule of Civil 

Procedure 12(b)(1) and 12(b)(6) state as follows.

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Jessica Trame has not been the Bureau Chief of the Illinois State Police Firearms Services Bureau since 

January of 2020.

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INTRODUCTION

Intervenor-Plaintiffs filed their Motion in Intervention on November 2, 2020. ECF No. 

37. The original Complaint in Intervention alleged that Defendants, in their official capacities,

violated the Intervenor-Plaintiffs’ Second Amendment rights by failing to process their Firearm 

Owner Identification (FOID) cards within thirty days pursuant to 430 ILCS 65/5(a). IntervenorPlaintiffs have since received their respective FOID cards and, accordingly, any claim for 

injunctive relief is moot. See ECF No. 52 (withdrawing motion for preliminary injunction 

because the requested relief is moot). After fully briefing the Defendants’ motion to dismiss, this 

Court dismissed the Complaint in Intervention and held that the Eleventh Amendment barred the 

Davidsons’ request for damages. ECF No. 81 at 4.

Intervenor-Plaintiffs then filed this Amended Complaint in Intervention. ECF No. 91. In 

their Amended Complaint in Intervention, the Intervenor-Plaintiffs allege that they waited more 

than thirty days to receive their Firearm Owners Identification Cards (“FOID Cards”), in 

violation of the Firearms Owners Identification Card Act (“FOID Card Act”), 430 ILCS 65/1 et 

seq. Id. at ¶ 2-3. At this time, each Intervenor-Plaintiff has received their respective FOID cards. 

Id. at ¶ 8. In their Amended Complaint in Intervention, Intervenor-Plaintiffs assert that the 

Defendants acted outside of the scope of their official duties to violate their Second and 

Fourteenth Amendment rights when the Intervenor-Plaintiffs’ FOID card applications were not 

processed within thirty days. See ECF No. 91. Plaintiffs allege that they are entitled to damages 

from the Defendants in their individual capacities. See id.

But Intervenor-Plaintiffs have failed to adequately plead individual capacity claims 

against Defendants. The Amended Complaint in Intervention does not allege that Defendants 

personally took any action that affected their applications, and therefore does not state a valid 

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Section 1983 claim against them. Accordingly, Plaintiffs’ Amended Complaint in Intervention 

should be dismissed. 

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. A complaint 

may be dismissed if the plaintiff fails to allege sufficient facts to state a cause of action that is 

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). A sufficient complaint must allege “more than a sheer 

possibility that a defendant has acted unlawfully” and be supported by factual content as 

“[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory 

statements, do not suffice.” Iqbal, 556 U.S. at 678. When ruling on a motion to dismiss pursuant 

to Rule 12(b)(6), the court must accept all well-pleaded facts as true, but it must also “draw on its 

judicial experience and common sense” to determine if the plaintiff has stated a plausible claim 

for relief. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009), quoting Iqbal 556 U.S. at 678. 

If, upon its review, the court determines that a plaintiff has failed to meet this plausibility 

requirement, the matter should be dismissed. 

ARGUMENT

Intervenor-Plaintiffs have received their FOID cards, so at this point the only issue is 

whether they are entitled to damages. ECF No. 91 at ¶ 8. Intervenor-Plaintiffs have amended 

their claims and named Defendants Kelly and Trame in their individual capacities in an attempt 

to circumvent the Eleventh Amendment and obtain monetary damages. But Plaintiffs have not 

stated viable individual capacities claims.

Section 1983 only creates liability “for a defendant’s personal acts or decisions.” VinningEl v. Evans, 657 F.3d 591, 592 (7th Cir. 2011). Here, however, Intervenor-Plaintiffs have not 

alleged that Defendants Kelly or Trame personally took any action that affected their individual 

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applications. See ECF No. 91. Rather, the Intervenor-Plaintiffs rely on a theory of supervisory 

liability, alleging that by virtue of their offices, Defendants should have “caused the Bureau to 

comply with state policy, by supervising ISP employees in a manner causing such compliance.” 

ECF No. 91 at ¶ 15. 

This is insufficient to state a claim. Section 1983 “does not permit suits against parties 

merely for their supervision of others.” Hurt v. Corcoran, Case No. 17-cv-7909, 2019 WL 

34842819, at *8 (quoting Green v. Beth, No. 18-2900, 770 Fed. Appx. 273, 2019 WL 2082020 at 

*2 (7th Cir. 2019). For a supervisor to be liable for a constitutional violation, she “must know 

about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [she] 

might see.” Tillman v. Burge, 813 F. Supp. 2d 946, 974 (N.D. Ill. 2011), quoting Jones v. City of 

Chicago, 856 F.2d 985, 992 (7th Cir. 1988).

The Intervenor-Plaintiffs have not come close to meeting this standard. The Amended 

Complaint in Intervention includes a single allegation inferring that any delays in processing 

applications means that Defendants Kelly and Trame either “expressly direct[ed] ISP employees 

to neglect” the FOID Card Act or “knowingly fail[ed] to direct [Illinois State Police] employees 

to comply with [the FOID Card Act].” Id. at 16. But this speculative and conclusory assertion, 

unsupported by any factual allegations, cannot state a claim. See Iqbal, 556 U.S. at 678 (a viable 

pleading must contain more than “an unadorned, the-defendant-unlawfully-harmed-me 

accusation.”); Twombly, 550 U.S. at 570 (dismissing claim when plaintiffs failed to “nudge their 

claims across the line from conceivable to plausible”).

Simply put, the Intervenor-Plaintiffs’ theory requires “a chain of inferences that is too 

attenuated” to support individual capacity claims against either Defendant Kelly or Trame. Wilson 

v. Illinois Dep’t of Fin. and Pro. Regul., 376 F. Supp. 3d 849, 869 (N.D. Ill. Mar. 25, 2019) 

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(dismissing individual liability claim when plaintiff failed to allege sufficient involvement with 

alleged injury). Accepting Intervenor-Plaintiffs’ theory would undermine the Eleventh 

Amendment and create individual liability for the supervisors of State agencies for any alleged 

constitutional violation.

Finally, even if Intervenor-Plaintiffs had stated viable individual capacity claims, they 

would not be entitled to damages because their Second and Fourteenth Amendment rights were 

never violated. This Court evaluated virtually identical claims when it ruled on the motion for 

preliminary injunction filed in the underlying case. See ECF No 87. In its thorough and wellreasoned opinion, the Court concluded that delays in processing FOID card applications, such as 

the delays in processing the Intervenor-Plaintiffs’ cards do not amount to a Second Amendment 

violation. Id. at 22. This Court also stated that balance of interests between FOID card applicants 

and the State’s interest in regulating who legally obtains firearms “suggest[s] that the FOID 

process is adequate from a due process perspective.” Id. at 24-25. As such, Intervenor-Plaintiffs 

would not be entitled to any damages. Because Intervenor-Plaintiffs cannot state any viable claim 

their Amended Complaint in Intervention should be dismissed with prejudice.

CONCLUSION

WHEREFORE, for the foregoing reasons, Defendants respectfully request that this Court 

dismiss Intervenor-Plaintiffs’ Amended Complaint in Intervention and grant any other relief 

deemed just and proper.

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Dated: July 16, 2021

Respectfully Submitted,

KWAME RAOUL /s/ Mary A. Johnston

Attorney General of Illinois MARY A. JOHNSTON

Assistant Attorney General

Office of the Illinois Attorney General

100 West Randolph Street, 13th Floor

Chicago, Illinois 60601

(312) 814-3739

mary.johnston@illinois.gov

Counsel for Defendants

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