The opinion of the court was delivered by: JAMES H. ALESIA
On October 14, 1992, plaintiffs filed a two-count complaint alleging the violation of 42 U.S.C. § 1983 and 15 U.S.C. § 1692. Before the court are the motions of defendant Regency Savings Bank ("Regency") and defendants Joel Truemper, David Bisch and the City of Naperville to dismiss the plaintiffs' complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth in this order the court grants defendants' motions to dismiss.
According to the defendants, Regency mistakenly credited plaintiffs' bank account with a deposit in the amount of $ 20,000 when plaintiffs had only deposited $ 2,000. Upon discovering this error, Regency demanded that plaintiffs return the amount of $ 18,000 which had been credited to their account in error. When the plaintiffs refused to return the funds, Regency suspected plaintiffs had committed a theft and therefore contacted the Naperville Police Department as Regency believed it was obligated to do in adherence to federal regulatory requirements.
It is Regency's conduct and the ensuing conduct of police officers Joel Truemper and Donald Bisch, who investigated Regency's charge, of which plaintiffs complain.
Count I of the complaint alleges that the defendants "conspired with each other to deprive the plaintiffs of due process of law and their right of privacy and equal protection of the laws, by arbitrarily and irrationally attempting to collect an alleged civil debt purportedly owed plaintiffs to [Regency] by threats of criminal prosecution, coercion and harassment . . . ." Complaint, at P 9. Specifically, plaintiffs' complaint contains the following claims. First, plaintiffs allege that Regency filed a criminal charge against the plaintiffs with defendant City of Naperville that plaintiffs had "passed a 'bad check'." Complaint, at P 9(a). Plaintiffs allege that this "act was irrational and without legal justification and was done for the purpose of pursuing a civil matter." Id. Second, plaintiffs allege that police officers Truemper and Bisch "arbitrarily harassed the plaintiffs at their home and at their respective places of employment by letting it be known that plaintiffs purportedly owed $ 18,000.00 to [Regency], without first determining whether or not any criminal activity had occurred by the plaintiffs . . . ." Complaint, at P 9(b). Third, plaintiffs allege that Truemper and Bisch, "on their own, arbitrarily threatened plaintiffs with criminal prosecution, if plaintiffs did not pay the $ 18,000.00" to Regency Savings Bank and did so "without legal justification." Complaint, at P 9(c). Fourth, plaintiffs allege that Truemper and Bisch "deliberately and arbitrarily told plaintiffs' children [ages 17, 14, and 11] that the plaintiffs owed $ 18,000.00 to [Regency] and would be subject to criminal prosecution, if the plaintiffs did not repay the money . . . ." Complaint, at P 9(d).
Based upon these facts, plaintiffs claim they were denied "the right to be free from harassment by police in civil disputes; the right to pursue redress of the civil courts without coercion by the police; and the right to privacy to protect their individual interests in avoiding disclosure of personal matters to their children; all of which are guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983." Complaint, at P 12. Plaintiffs further contend that the City of Naperville caused these alleged constitutional violations "by a practice, policy and custom of failing to properly train, supervise and discipline police officers, including the individual defendants herein, regarding constitutional restraints on the police power regarding due process of law and right of privacy." Complaint, at P 13.
Count II of the complaint alleges that Regency violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA") by using tactics that were unfair and harmful to plaintiffs in collecting an alleged debt. Complaint, at P 20. Specifically, plaintiffs claim that Regency violated the FDCPA by using fear, coercion, threats and harassment by the police to collect an alleged debt. Id. Plaintiffs allege that the FDCPA is implicated because Regency attempted to have the City of Naperville, through its police officers, Truemper and Bisch, "attempt to collect a debt allegedly owed to defendant [Regency] by plaintiffs for $ 18,000.00 through intimidation . . . ." Complaint, at P 17. The plaintiffs thus allege that Regency, by using the City of Naperville and the police officers to collect an alleged debt, "used a third person to collect a debt" and therefore Regency is a "debt collector" under 15 U.S.C. § 1692. Complaint, at PP 18 and 19.
Defendants move to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Moreover, with respect to plaintiffs' complaint against the City of Naperville, according to the recent Supreme Court decision Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993), federal courts may no longer apply a heightened pleading standard, more stringent than the usual pleading requirements, to civil rights cases alleging municipal liability under § 1983. Id. at 1163. The court will review the present motions with these standards in mind.
A. COUNT I: 42 U.S.C. § 1983
Plaintiffs' complaint alleges that defendants Regency, Truemper, Bisch and the City of Naperville violated their civil rights under § 1983. To state a cause of action under § 1983, plaintiffs must allege two essential elements. First, plaintiffs must show that defendants engaged in conduct depriving them of rights, privileges, or immunities secured by the United States Constitution or federal law. 42 U.S.C. § 1983. Second, plaintiffs must show that this conduct occurred under color of state law. Id. The court will begin by analyzing plaintiffs' allegations to determine whether, viewing the allegations in a light most favorable to the plaintiffs, they were deprived of any constitutional rights.
Count I of plaintiffs' complaint alleges that all of the defendants conspired to violate plaintiffs' civil rights. Plaintiffs state that the underlying constitutional violations of that conspiracy are malicious prosecution, harassment, threats to violate the plaintiffs' due process and deprivation of privacy. Complaint, at P 9; Plaintiffs' Response to Motion to Dismiss of Regency Savings Bank, at 1, 4. Therefore, the court will consider whether any or all of plaintiffs' alleged constitutional violations state a claim upon which relief can be granted.
Defendants argue that plaintiffs have failed to state a cause of action against any of the defendants for conspiracy to commit malicious prosecution. One of the essential elements of a cause of action for malicious prosecution is "the commencement or continuance of an original criminal or civil judicial proceeding by the defendant. . . ." Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229, 232, 44 Ill. Dec. 260 (1980). A prosecution is commenced by the filing of a complaint, an information or indictment taken by official action rather than a mere complaint to the proper ...