United States District Court, N.D. Illinois
March 25, 2004.
DAVY CADY, Plaintiff
SOUTH SUBURBAN COLLEGE, ET AL., Defendants
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Davy Cady, a former student of defendant South Suburban
College ("SSC"), filed a 155-page, 49-count complaint naming as
defendants a number of his fellow students, the college's lawyer, its
president and other officials, its board of trustees, various teachers and
campus police officers. In my order of November 14, 2003, I dismissed
counts 1-4, 7, 8, 9, 10, 12, 17-21, 24, 25, 28, and 29, as well as a
number of defendants. The remaining defendants now move for dismissal of
the remaining claims for lack of jurisdiction and failure to state a
claim on which relief can be granted. I GRANT the motions to dismiss,
with prejudice, all remaining counts and defendants. Mr. Cady also moves
for sanctions against various defense attorneys. I DENY the motions for
On a motion to dismiss, I accept all well-pleaded allegations in the
complaint as true, and grant the motion only if the plaintiff can prove
no set of facts to support his claim. Thompson v. 111. Dep't of Prof.
Regulation, 300 F.3d 750, 753 (7th Cir. 2002). However, a plaintiff can
plead himself out of court by
pleading facts that undermine the allegations set forth in his complaint.
McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000).
First, I will address Mr. Cady's constitutional claims under
42 U.S.C. § 1983. In Counts 5, 6, 34, and 35, Mr. Cady alleges First
Amendment violations. Plaintiff's argument in support of Counts 5 and 6
appears to be premised on the faulty belief that his right to petition the
government for redress of grievances requires the government (in this
case, a public college) to provide him with a formal forum for doing so.
This is not the case, and therefore Mr. Cady alleges no constitutional
injury in these counts. Counts 34 and 35 are likewise premised on an
apparent misunderstanding of the First Amendment right. The "injuries"
cited by Mr. Cady-including incidents of professorial discretion
regarding whether certain speech is appropriate in the classroom,
editorial discretion regarding whether to print a letter to a newspaper,
a school punishing a student for using vulgarity towards community
members or for suggesting that an argument with a classmate be "taken
outside," and a school requiring that an expelled student refrain from
entering the campus for any purpose simply are not constitutional
torts. The motion to dismiss is GRANTED as to Counts 5, 6, 34, and 35.
In Counts 13-16, Mr. Cady alleges Fourth Amendment violations in
connection with the detention and arrest of Mr. Cady by campus
police following a dispute with Betty Majors, an SSC employee. Arresting
officers' reasonable belief that probable cause is present is an absolute
defense to a charge of unlawful arrest. Eversole v. Steele, 59 F.3d 710,
717-18 (7th Cir. 1995). As the exhibits to the complaint make clear, Ms.
Majors signed a complaint alleging that Mr. Cady frightened her by using
profanity and yelling loudly at her in a public place. Mr. Cady himself
admits that he peacefully but "emphatically expressed his exasperation
and indignation." "Qualified immunity protects public officials from
civil suit based on their discretionary functions except where such
conduct violated `clearly established' federal law." Burns v. Reed,
44 F.3d 524, 526 (7th Cir. 1995). The contours of the right must be so
clear that any reasonable official would know that his actions violate
the right. Id. The plaintiff bears the burden of meeting this standard.
Id. The defendant officers here are entitled to qualified immunity based
on their reasonable belief that the arrest was justified. The motion to
dismiss is GRANTED as to Counts 13-16.
Counts 30 and 31 purportedly state violations of Mr. Cady's right to
due process. A procedural due process claim requires a two-part inquiry:
whether the plaintiff was deprived of a protected interest and if so,
whether he received the process that was due. Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428 (1982). It is not clear whether Mr.
Cady has alleged that he was deprived of any protected interest. There is
no general constitutional right to
higher education. San Antonio Indep, Sch. Dist. v. Rodriguez, 411 U.S. 1,
35 (1973). A property interest may arise from rights created by state
statutes or by contracts with public entities, but Illinois has not
identified a property right in post-secondary education. Galdikas v.
Pagan, 342 F.3d 684, 692 (7th Cir. 2003)*fn1 Mr. Cady does not identify
any statute or contract as the source of the property right he was
allegedly deprived of. At any rate, qualified immunity protects the
defendants on this claim because the property right here is ill-defined,
and thus I cannot say that any reasonable official would realize that
Mr. Cady's rights were being violated. Burns, 44 F.3d at 526. The motion
to dismiss is GRANTED as to Counts 30 and 31.
In Counts 32 and 33, Mr. Cady suggests that SSC's Student Code of
Conduct imposes an unconstitutional restraint on freedom of speech and is
"void for vagueness." A rule or regulation can be facially
unconstitutional if it is overbroad (that is, it forbids constitutionally
protected conduct) or if it is so vague that ordinary people cannot
understand what conduct is prohibited and non-arbitrary enforcement is
impossible. Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist.,
61, 251 F.3d 662, 666 (7th Cir. 2001). The complained-of regulations
pass these tests. Mr. Cady objects to language in the Code of Conduct
which prohibits "activity which endangers personal mental or physical
health . . . of any person" and the use of "abusive language toward
members of the College community." Because of a school's need to be able
to impose discipline for a wide variety of unanticipated conduct that may
disrupt the educational process, "school disciplinary rules need not be
as detailed as a criminal code which imposes criminal sanctions."
Id. at 667. Any ordinary, reasonable person could understand the
SSC code, and it prohibits no protected speech. The motion to dismiss is
GRANTED as to Counts 32 and 33.
In Counts 40 and 41, Mr. Cady alleges that defendants' actions
constitute a pattern of "fraudulent higher education activities" in
violation of the Racketeer Influence and Corrupt Organizations statute
(RICO). As predicate acts, Mr. Cady suggests that defendants stole
evidence, committed perjury, and tampered with witnesses in connection
with his disciplinary hearing, and perpetrated an "educational swindle"
by sending information to students in Indiana. The only acts alleged
which could possibly constitute predicate acts under RICO are the
allegations that defendants caused unnamed persons to file unspecified
phony police reports and that defendants "lied on the witness stand." In
order to establish RICO liability based on fraud, a plaintiff must allege
a pattern of acts with particularity, subject to the heightened pleading
standards of Rule 9(b) of the Federal Rules of Civil Procedure, which
require that the plaintiff state "the time, place, and content of the
alleged false representations, the method by which the misrepresentations
were communicated, and the identities of the parties to those
misrepresentations." Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580,
597 (7th Cir. 2001). The allegations of the complaint, taken as a whole,
fall far short of the sort of scheme contemplated by Congress in enacting
RICO that is, an independent enterprise engaged in a systematic pattern
of illegal activity. The motion to dismiss is GRANTED as to Counts 40 and
In Counts 42 and 43, Mr. Cady alleges that he was subjected to
malicious prosecution. The presence of probable cause is a complete
defense to a claim of malicious prosecution, Penn v. Chicago State
Univ., 162 F. Supp.2d 968, 975 (N.D. Ill. 2001) (Leinenweber, J.), and
just as there was probable cause to arrest Mr. Cady, his own admissions
establish that there was probable cause to hold a hearing regarding his
behavior on campus. Furthermore, in order to sustain such a claim, the
proceedings must have terminated in the plaintiff's favor, id., and that
is not the case here. The motion to dismiss is GRANTED as to Counts 42
In Counts 36 and 37, Mr. Cady asks this court to review an
administrative decision of an arm of the State of Illinois under a
"common law certiorari appeal" statute. That statute permits persons
aggrieved by the outcome of state administrative hearings to seek relief
in state court within six months of the hearing. Holstein v. City of
Chicago, 803 F. Supp. 205, 210 (N.D. Ill. 1992) (Williams, J.). Filing
such claims in federal court is not an option, and the six-month deadline
for filing in state court has long since passed. Id. at 211. Mr. Cady has
waived his right to common law certiorari, and the motion to dismiss is
GRANTED as to Counts 36 and 37.
In Counts 11, 22, 23, 26, 27, 38, 39, and 44-49 (invasion of
privacy/false light/libel, making false crime reports, intimidation,
breach of contract, perjury/subornation of perjury, negligence, negligent
infliction of emotional distress, intentional infliction of emotional
distress, "the civil equivalent of official misconduct," and conspiracy
to commit the same), Mr. Cady alleges claims which sound, if they sound
at all, solely in state law. The failure of Mr. Cady's federal claims
deprives this court of subject-matter jurisdiction over these claims.
Therefore, the motion to dismiss is GRANTED as to these counts as well.
Mr. Cady's motions for sanctions against defense counsel under
Rule 11(b) are wholly meritless. He moves for sanctions against defense
counsel Daniel Cannon based on statements Mr. Cannon made in open court
on September 10, 2003. Presiding in court on that day, I heard Mr. Cannon
say nothing inappropriate. Furthermore,
Rule 11(b) addresses only written materials filed with the court,
not spoken words. Mr. Cady moves for sanctions against defense counsel
Paulette Petretti for stating in a memorandum in support of motion to
dismiss that plaintiff explained "why he used profanity and disturbed the
peace" and that plaintiff "concedes he was disruptive." The fact that Mr.
Cady disagrees with this interpretation of statements he has made does
not make Ms. Petretti's statements actionable. Finally, Mr. Cady moves
for sanctions against defense counsel James Vlahakis because in a motion
to dismiss he stated that Mr. Cady is "an experienced pro se litigator"
and noted that Mr. Cady has filed five other lawsuits. I agree with that
characterization of Mr. Cady, but even if I did not, its inclusion in a
motion to dismiss would not even approach the type of attorney misconduct
sanctionable under Rule 11. The motions for sanctions are DENIED in their