United States District Court, N.D. Illinois
November 16, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, Anita Christensen and Robert Alty, filed a
four-count, amended complaint against defendants, Boone County
(County) and Edward Krieger, a deputy sheriff in Boone County. It
is alleged that Krieger, who has had prior altercations (not the
subject of this action) with Alty, a City of Belvidere police
officer, has engaged in a "pattern of on-duty conduct designed to
harass, annoy, and intimidate" both plaintiffs, who are in an
intimate, dating relationship with each other. Specifically,
plaintiffs allege that Krieger has repeatedly followed plaintiffs
while they were driving, has repeatedly parked his squad car near
Christensen's workplace and surveilled and monitored her
activities, has abandoned service calls and traffic stops to
follow plaintiffs, has parked his squad car outside of businesses
that plaintiffs patronize, and has engaged in "other incidents"
designed to harass, annoy, or intimidate plaintiffs. Plaintiffs
have also asserted in their response brief that Krieger's
surveillance of Christensen at her workplace has been so frequent
that she and her store manager wrote a letter to the sheriff
complaining and characterizing Krieger's conduct as "stalking."
It is further asserted that Krieger has enticed a civilian to
complain about Alty, made statements to fellow officers that he
would "dig up some dirt on Alty," and conducted an illegal search
of a third-party's cell phone in an effort to see if the
third-party had been talking to Alty.
Plaintiffs allege in Count I, pursuant to 42 U.S.C. § 1983, a
claim based on the County's failure to train, monitor, supervise,
and discipline Krieger. In Count II, plaintiffs allege that
Krieger violated their right of privacy, their freedom of
association, their freedom from unlawful searches and seizures,
as well as their substantive due process rights. Plaintiffs also
refer to the First, Fourth, Fifth, and Fourteenth Amendments to
the United States Constitution in support of their claims. Count
III is a supplemental claim under Illinois law for the
intentional infliction of emotional distress (IIED). Finally,
Count IV seeks attorney fees pursuant to 42 U.S.C. § 1988.
Defendants have moved to dismiss the entire complaint pursuant
to Fed.R. Civ. P. 12(b)(6), contending that the County is not a
proper defendant, that plaintiffs have not properly alleged any
Federal constitutional claims, and that the state-law claim
should be dismissed as time-barred under the Local Governmental
and Governmental Employees Tort Immunity Act, 745 ILCS 10/8-101
(West 2002), or because it fails to state a claim.
In deciding a motion under Rule 12(b)(6), the court accepts all
well-pleaded facts as true and draws all reasonable inferences in
a plaintiff's favor Pugal v. Board of Trustees of the
University of Illinois, 378 F. 3d 659, 662 (7th Cir. 2004).
The court will not grant the motion unless the plaintiff can
prove no set of facts in support of the claim that will entitle
him to relief. Pugal, 378 F. 3d at 662. A plaintiff need not
put all of the essential facts in the complaint and, as here, may
add them by affidavit or brief in order to respond to a motion to
dismiss, so long as the additional facts are consistent with the
allegations of the complaintHelp At Home, Inc. v. Medical
Capital, L.L.C., 260 F. 3d 748, 752-53 (7th Cir. 2001).
While defendants raise several bases for dismissal, the court
finds that plaintiffs have not stated any claim upon which relief
may be granted. As for the alleged Fourth Amendment violation,
plaintiffs have not identified any search or seizure of
themselves. Similarly, their allegations do not demonstrate any
invasion of privacy by Krieger.
The Supreme Court has recognized a due process right of
association for certain "intimate relationships." Roberts v.
United States Jaycees, 468 U.S. 609 (1984). Relationships that
have familial characteristics such as marriage, child birth,
raising and educating children, and cohabitation with relatives,
are entitled to constitutional protection as opposed to
associations, such as large business enterprises, that are remote
from these concerns. Roberts, 468 U.S. at 619-20. Between
family relationships and large business associations lie a broad
range of human relationships that may make greater or lesser
claims to constitutional protection from interference by the
State. Roberts, 468 U.S. at 620. Determining the limits of
state authority over an individual's freedom to enter into a
particular association therefore unavoidably entails a careful
assessment of where that relationship's objective characteristics
locate it on a spectrum from the most intimate to the most
attenuated of personal associations. Roberts, 468 U.S. at 620.
Factors that may be relevant to this determination include size,
purpose, policies, selectivity, congeniality, and other
characteristics that may be pertinent in a particular case.
Roberts, 468 U.S. at 620.
Here, there can be no doubt that the alleged intimate
relationship between plaintiffs, while not having the familial
characteristics that mark society's most intimate relationships,
qualifies for heightened protection from state interference based
on its objective nature and character. That does not mean,
however, that it deserves the same degree of protection as
relationships involving more familial qualities, and the
constitution will tolerate a higher level of state interference.
Whatever that ultimate level of interference might be, plaintiffs
here have not come close to alleging any such interference with
the relationship itself. The alleged conduct of Krieger simply
does not rise to the level of preventing plaintiffs from having a
meaningful relationship. Further, the fact that plaintiffs feel
individually annoyed or harassed by Krieger says nothing about
any impact on the relationship itself. The court also notes that
while plaintiffs have mentioned the First Amendment, there are no
allegations of any interference with their right of expressive
association. See Roberts, 468 U.S. at 618. Thus, the claims in
both Count I and II are dismissed.
The next issue is whether plaintiffs have alleged a claim for
the Illinois tort of IIED. While this court may dismiss such a
supplemental claim upon dismissing the federal claims, see
28 U.S.C. § 1367(c)(3), it has the option to decide the claim on its
merits where the appropriate disposition is crystal clear and it
is otherwise efficient to do so, see Bilow v. Much, Shelist,
Freed, Denenberg, Ament & Rubestein, P.C, 277 F. 3d 882, 896
(7th Cir. 2001). The court finds such latter disposition to
be appropriate in this case.
To state a claim for IIED, a plaintiff must allege: (1) the
defendant's conduct was extreme and outrageous; (2) the defendant
either intended that his conduct inflict sever emotional
distress, or know there is a high probability that it will do so;
and (3) the defendant's conduct in fact caused severe emotional
distress Doe v. Calumet City, 161 Ill. 2d 374, 392,
641 N.E. 2d 498 (1994). Conduct is extreme and outrageous if it would cause
the average member of the community to resent the actor and lead
him to shout, "outrageous!" Doe, 161 Ill. 2d at 392. Such
conduct is distinguishable from the mere insults, indignities,
threats, annoyances, petty oppressions, on other trivialities of
a complex society. Doe, 161 Ill. 2d at 392. Whether conduct is
extreme or outrageous is judged by an objective standard based on
the facts of the case. Doe, 161 Ill. 2d at 392.
Extreme and outrageous conduct can arise from the abuse of a
position of power such as a police officer. Doe,
161 Ill. 2d at 392-93. Such conduct, however, must stem from "extreme
abuses" of police authority. Doe, 161 Ill. 2d at 393. The result must be
akin to extortion. McGrath v. Fahey, 126 Ill. 2d 78, 88,
533 N.E. 2d 806 (1989).
In this case, the allegations (including those in plaintiff's
brief) do not rise to the level of extreme and outrageous
behavior by Krieger. Although he is alleged to have engaged in
such activity as a police officer, he has not actually engaged in
any official police conduct directed at plaintiffs. His
surveillance and following of plaintiffs is conduct he could
engage in whether or not he is a police officer. Krieger's
conduct, while entirely inappropriate, is simply nowhere near to
being extreme and outrageous as that element of the tort is
defined by Illinois courts.
Additionally, there are no allegations of severe emotional
distress suffered by either plaintiff. This is a separate basis
to dismiss Count III.
Having dismissed all the § 1983 claims, the court necessarily
dismisses the § 1988 claim for attorney fees in Count IV.
In dismissing this case, the court in no way condones the
alleged conduct of Krieger, nor should any other agency or
authority interpret this opinion as justifying Krieger's actions.
But this is essentially a personal dispute that should be
resolved through local authorities and not by invocation of
For the foregoing reasons, the court grants defendants' motion
to dismiss. In doing so the court notes that this action should
be brought properly against the Sheriff and not the County.
However, this disposition would apply equally to the Sheriff even
if the complaint were amended in that regard.
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