United States District Court, C.D. Illinois, Springfield Division
August 11, 2005.
J. ROBERT TIERNEY and ANN S. TIERNEY, Plaintiffs,
SHERIDAN SWIM CLUB, INC., et al., Defendants.
The opinion of the court was delivered by: JEANNE SCOTT, District Judge
This matter comes before the Court on Defendants Sheridan Swim
Club, Inc., Robert W. Meyer, Andrew C. Schnack III, Doug Olson,
Robert Hultz, Jon Barnard, Barney S. Bier, and Dennis Gorman's
Motions to Dismiss (d/e 26, 44, 56, 59, & 61), and Plaintiff J.
Robert Tierney's Amended Motion for Leave to File a Supplemental
Complaint (d/e 71).*fn1 The Plaintiffs J. Robert Tierney and Ann S. Tierney (collectively
the Tierneys) allege in their Corrected Second Amended Complaint
(d/e 39) (Complaint) that the Defendants committed various acts
in violation of 42 U.S.C. §§ 1983 and 1985(2) and (3). The
Tierneys also assert several state law claims. For the reasons
set forth below, the Tierneys fail to state a claim under either
§ 1983 or § 1985. The Court therefore grants the Motions to
Dismiss. The Court further denies Plaintiff Robert Tierney's
request to file supplemental pleadings.
STATEMENT OF FACTS
For purposes of the Motions to Dismiss, the Court must accept
as true all of the Tierneys' well-pleaded factual allegations and
draw all inferences in the light most favorable to them. Hager
v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996);
Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178
(7th Cir. 1996). The Court, however, is not obligated to give
any weight to unsupported conclusions of law. R.J.R. Services,
Inc. v. Aetna Cas. and Sur. Co., 895 F.2d 279, 281 (7th Cir.
1989). The Court may also consider matters of which the Court can
take judicial notice, such as public records from other court
proceedings. Menominee Indian Tribe of Wisconsin v. Thompson,
161 F.3d 449, 456 (7th Cir. 1998). The Court should only grant the Motions to Dismiss if it appears beyond
doubt that the Tierneys can prove no set of facts that would
entitle them to relief. Doherty v. City of Chicago,
75 F.3d 318, 322 (7th Cir. 1996).
The Complaint sets forth the following allegations. The
Tierneys are residents of Quincy, Adams County, Illinois. The
Defendant Sheridan Swim Club, Inc. (Sheridan) is a for-profit
corporation that operates a swim club in Quincy. Defendants
Olson, Meyer and Hultz are members of the Sheridan Board of
Directors (Board). Defendant Schnack is an attorney and was a
member of the Sheridan Board from March 1999 until March 2002.
Defendant Bier is the Adams County State's Attorney and, also,
was a member of the Sheridan Board from March 1999 until March
2001. Bier joined the Sheridan Board again in March 2004.
Defendant Barnard is an Adams County Assistant State's Attorney.
Defendant Gorman is an attorney who represented the Quincy School
District #172 (QSD) as a defendant in previous lawsuits filed by
The Tierneys previously filed lawsuits against Sheridan and
several of the individual Defendants. In 1999, the Tierneys filed
an action in this Court against Sheridan, QSD, and others,
including Bier and Schnack, alleging that the Defendants violated
their civil rights by terminating the Tierneys' Sheridan membership. Tierney v. Powers, Case No.
99-3149 (Original Federal Action).*fn2 The Tierneys claimed
that the Defendants terminated their Sheridan Club membership
because the Tierneys complained that Richard Powers, the then
coach of both the QSD swim team and the Sheridan Club swim team,
committed a battery upon their 16 year-old daughter and other
girls who were members of those two swim teams. Powers allegedly
fondled the girls' upper thighs and backs under the guise of
giving them "massages." The Tierneys amended their complaint in
the Original Federal Action to add several other defendants and
several additional claims. Some of the claims centered on the
allegation that the QSD conducted a confidential investigation of
their complaints against Powers and prepared a report (Report),
which the defendants disclosed to other individuals, but not to
The defendants in the Original Federal Action ultimately
prevailed. This Court dismissed certain counts for failure to
state a claim. Order entered March 19, 2001 (Case No. 99-3149
(d/e 118)). This Court entered summary judgment in favor of
Sheridan because Sheridan was not a state actor. Order entered October 23, 2001 (Case No. 99-3149 (d/e
189)). This Court then entered summary judgment in favor of QSD
on all federal claims against it, and dismissed the action.
Order entered October 22, 2003 (Case No. 99-3149 (d/e 326));
Minute Entry on October 23, 2003; Judgment entered October 23,
2003 (Case No. 99-3149 (d/e 328)). The Seventh Circuit affirmed.
Tierney v. Quincy School District No. 172, Case Nos. 02-1403 &
04-1205, Circuit Rule 53 Order (7th Cir. February 22, 2005);
Tierney v. Vahle, 304 F.3d 734 (7th Cir. 2002).
The Tierneys also filed an action against Sheridan and
individual Defendants Bier, Olson, Schnack, Meyer, Hultz, and
others, in the Illinois Circuit Court for Adams County, Illinois.
Tierney v. Sheridan Swim Club, Inc., et al., Adams Co. Circuit
Court, Case No. 02-L-12 (Adams County Action). Memorandum in
Support of Motion to Dismiss Plaintiff's Second Amended Complaint
(d/e 45) (Sheridan Memorandum), Exhibit A, Case No. 02-L-12,
Third Amended Complaint.*fn3 The Tierneys filed the Adams
County Action after this Court entered judgment in favor of
Sheridan, Bier, and Schnack in the Original Federal Action and dismissed them
from that case. Barnard represented the Defendants in the Adams
County Action. The state court ultimately entered judgment in
favor of defendants in the Adams County Action. The Tierneys
appealed but ultimately failed to file a brief, and the appeal
was dismissed. Memorandum in Support of Motion to Dismiss
Plaintiffs' Second Amended Complaint (d/e 60) (Gorman
Memorandum), Exhibits A and B.
The Tierneys' current claims concern: (1) the Defendants'
actions taken in connection with the Adams County Action; and (2)
the Defendants' response to Plaintiff Robert Tierney's statements
to state officials, including representatives of the Illinois
Attorney General's Office regarding Defendants Bier, Barnard,
Schnack and others.
On June 24, 2002, an evidentiary hearing occurred in the Adams
County Action (Hearing). The Tierneys subpoenaed several
individuals, including several affiliated with QSD, to testify at
the Hearing. The Adams County Sheriff's Department served the
subpoenas. Bier used his authority as Adams County State's
Attorney to direct the Sheriff's Department personnel serving the
subpoenas to instruct the subpoenaed individuals to contact
Barnard. Gorman, as attorney for QSD, instructed several subpoenaed individuals not to appear at the Hearing. As a result
of these actions, most of the subpoenaed individuals did not
appear at the Hearing, and so, the Tierneys could not present the
testimony of these individuals.
The Defendants and QSD were required to produce documents in
connection with the Hearing. Prior to the Hearing, Bier and
Barnard took possession of Sheridan records and stored them in
the Adams County State's Attorney offices. One document that the
Tierneys allege should have been produced was a letter dated
March 5, 1999, from Schnack to Gorman (Letter). The Letter
indicates that Schnack was aware of the contents of the Report
concerning the Tierneys' 1999 complaints about Powers' battery of
their daughter and others. The Tierneys allege that the
Defendants wrongfully withheld the Letter in both the Original
Federal Action and the Adams County Action.
Schnack falsely testified at the hearing that he had no
knowledge of any complaints about Powers and the alleged battery
until April 1999. The Letter would have proven that this
testimony was false, but Defendants had wrongfully withheld it.
The Plaintiffs allege that Barnard suborned Schnack's false
testimony by calling Schnack as a witness. Plaintiffs also allege
that Gorman gave false, misleading, and evasive testimony at the Hearing, but the Tierneys do not aver any details.
On or about October 17, 2002, the Plaintiffs learned of the
existence of the Letter. On October 18, 2002, Gorman told Barnard
and Bier that the Plaintiffs had learned of the existence of the
Letter. Bier then sought to have the Office of the Illinois
State's Attorney Appellate Prosecutor appointed as special
prosecutor to investigate charges of possible perjury by Schnack.
The Adams County Court appointed the Appellate Prosecutor.
Second Amended Complaint, Exhibit B-2, People v. Schnack,
Case No. 02-MR-98, Order for Appointment of Special Prosecutor
(Adams Co. Cir. Ct. October 18, 2002). Bier then unlawfully
instructed the Adams County Circuit Clerk to classify case No.
02-MR-98 as an eavesdropping or wire tap case and to have the
case impounded to conceal its existence. The Appellate Prosecutor
accepted possession and control of the evidence pertaining to
Schnack's alleged perjury, but he took no action. The Tierneys
secured access to this state court file in November 2004. Second
Amended Complaint, Exhibit B-5, Letter from Chief Judge Thomas
Brownfield to Adam Co. Cir. Ct. Clerk, dated November 5, 2004.
The Tierneys do not alleged that the case file in Case No.
02-MR-98 contained any new information material to the Adams
County Action. After uncovering the Letter, the Adams County Circuit Court
authorized the Tierneys to engage in additional discovery. The
Tierneys scheduled several depositions. Barnard wrongfully
instructed several deponents not to appear at those depositions.
Barnard and Bier also wrongfully took possession of Sheridan
records and concealed and/or destroyed some of those records.
In February 2003, Plaintiffs deposed Defendant Olson. In that
deposition, he testified that Defendant Schnack had made obscene
and harassing phone calls to the Tierneys in 2000. The Tierneys
had already asked the Adams County State's Attorney Office, at
the time of the calls, to investigate and prosecute the
perpetrator. In 2000, Bier turned over the investigation of those
harassing phone calls to the State Appellate Prosecutor. Sheridan
was still a defendant in the Original Federal Action at this
time, and Bier was then the president of the Sheridan Board.
After Olson's deposition in February 2003, Bier and Barnard took
no further action with respect to the harassing and obscene phone
In May 2003, Robert Tierney spoke to several state officials,
including representatives of the Office of the Illinois Attorney General,
regarding the actions of Bier, Barnard, Schnack, and others.
Bier, Barnard, and Schnack learned of Tierney's statements and
conspired to retaliate against him. The Tierneys allege that, in
May and June 2003, upon the instructions and encouragement of
Schnack, Bier, and Barnard, Sheridan rejected all attempts to
secure a youth membership at Sheridan for the Tierneys' minor son
Case Tierney unless the Tierneys would drop all pending lawsuits
and agree not to pursue any other claims.
The Tierneys again tried to get a Sheridan youth membership for
Case Tierney in June 1994, but Sheridan again refused. Bier and
Olson again urged the Sheridan Board to deny the youth membership
to Case Tierney unless the Tierneys agreed to drop all lawsuits
and agreed not to pursue any other legal remedies for their new
causes of action.
I. MOTIONS TO DISMISS
Based on these factual allegations, the Tierneys assert seven
federal claims for violation of 42 U.S.C. §§ 1983 and 1985(2) and
(3), and three state law claims. Counts I through V are based on
§ 1983. Counts VI and VII are based on §§ 1985(2) and (3). The
Tierneys allege in Count I that the Defendants intentionally deprived them of, and interfered
with, their right of access to the courts. Second Amended
Complaint, ¶ 123. The Tierneys allege in Count II that the
Defendants retaliated against them because Plaintiff Robert
Tierney had exercised his right of free speech to complain to the
representatives of the Illinois Attorney General's Office and
other state officials. Id. at ¶ 124. The Tierneys allege in
Count III that the Defendants interfered with their rights of
association with each other and with their minor son Case
Tierney. Id. at ¶ 125. The Tierneys allege in Count IV that
they were denied their property and liberty without due process
by the Defendants' retaliatory conduct. Id. at ¶ 126. The
Tierneys allege in Count V that Sheridan ratified all the
wrongful conduct of the other Defendants. Id. at ¶ 127. The
Tierneys allege in Count VI that the Defendants intentionally
engaged in a conspiracy to deprive them of their right of access
to the courts. Id. at ¶ 128. The Tierneys allege in Count VII
that the Defendants intentionally engaged in a conspiracy to
deprive them of their constitutionally protected rights. Id. at
¶ 129. The Defendants move to dismiss all these claims. The Court
agrees with the Defendants that the Tierneys fail to state a
federal claim. The Court will address each federal Count in
order. A. Count I
The Tierneys claim that the Defendants engaged in obstructive
tactics during the course of the Adams County Action to deprive
them of their right of access to the courts. To state a claim for
denial of access to the courts, a plaintiff must allege that he
has a meritorious claim, and that the defendant acted under color
of law intentionally to effectively deny the plaintiff the
ability to pursue his claim. Christopher v. Harbury,
536 U.S. 403, 414-15 (2002); Thomas v. Boggs, 33 F.3d 847, 852-53
(7th Cir. 1994). The action is available only for pre-filing
conduct because, once the case is filed, the trial court
presiding over the matter can redress improper conduct during the
course of the litigation. Estate of Smith v. Marasco,
318 F.3d 497, 511 (3rd Cir. 2003).
In this case, most of the alleged wrongdoing occurred after the
Tierneys filed the Adams County Action. The Tierneys allege that
one or more Defendants: (1) refused to produce documents in
connection with the Hearing; (2) provided false testimony at the
Hearing; (3) interfered with witnesses subpoenaed to appear at
the Hearing; and (4) subsequently interfered with the conduct of
discovery. All of these issues could have been addressed to the
trial court in the Adams County Action. Indeed, the Plaintiffs raised many of these matters in the Adams County
Action. Gorman Memorandum, Exhibit F, Plaintiff's Combined
Motion for Sanctions for Bad Faith Non-compliance with the Rules
of Civil Procedure on Discovery, For Sanctions for Failure to
Produce Documents as Ordered by the Court at a Preliminary
Injunction Hearing, For an Injunction, For a Protective Order and
to Compel Discovery, filed October 30, 2002. As such, the
Defendants' post-filing actions did not deny the Tierneys access
to the courts.
The Tierneys also allege that one or more of the Defendants did
not produce the Letter in discovery in the Original Federal
Action. Remedies for those discovery violations were available in
the Original Federal Action. These allegations also fail to state
a claim for denial of access to the courts. Moreover, all the
Letter tends to prove is that Gorman disclosed the contents of
the Report to Schnack in early March 1999. This Court determined
in the Original Federal Action that the disclosure of the
contents of the Report did not violate the Tierneys' rights.
See Order entered March 19, 2001 (Case No. 99-3149 (d/e
118)), at 9-11, 16; Order entered October 23, 2001 (Case No.
99-3149 (d/e 189)), at 17-18; Order entered October 22, 2003
(Case No. 99-3149 (d/e 326)), at 39-42. Thus, the Letter was not material to proving a meritorious claim.
The Tierneys also allege that Bier: (1) turned over to the
Office of the State Appellate Prosecutor the investigation of the
2000 obscene and harassing phone calls and the possible perjury
by Schnack at the Hearing; (2) caused the court clerk to impound
the court file in Case No. 02-MR-98; and (3) took no action
regarding the 2000 obscene harassing phone calls after he learned
in February 2003 that Schnack had made the calls. None of these
matters affected the Tierneys' access to the courts. Bier's
handling of these two possible criminal matters did not affect
the Tierneys' civil claim in the Adams County Action. Moreover,
Bier acted properly by turning the two matters over to the State
Appellate Prosecutor. Bier had a conflict of interest since he
was associated with Sheridan and was a defendant in both the
Original Federal Action and the Adams County Action. He therefore
let an independent state agency handle these matters rather than
Impounding the court file of Case No. 02-MR-98 also did not
affect the Tierneys' rights of access to the courts. The Tierneys
do not allege that: (1) the court file contained any new
information that was material to any claim that they sought to
bring against any Defendant, or (2) that impounding the file effectively precluded them from bringing the
claim.*fn5 The Tierneys do not state a claim for denial of
access to the courts.
B. Count II
Count II attempts to assert a claim for First Amendment
retaliation. The Tierneys allege that Bier, Barnard, Schnack, and
others instructed and encouraged Sheridan to deny Case Tierney a
youth membership in Sheridan in retaliation for Robert Tierney's
exercise of his First Amendment rights by talking to Illinois
state officials, including representatives of the Office of the
Illinois Attorney General. This claim fails because the alleged
wrongful conduct was not done under color of law.
Section 1983 provides a remedy for action done under color of
law. 42 U.S.C. § 1983. An act is done under color of law if the
actor uses, or abuses, his official authority to perform the act.
If, however, the person acts as a private citizen on a personal
matter, he does not act under color of law. Honaker v. Smith,
256 F.3d 477, 484-85 (7th Cir. 2001); Hughes v. Meyer,
880 F.2d 967, 971-72 (7th Cir. 1989). Here, Bier, Barnard, and
Schnack instructed and urged Sheridan not to give Case Tierney a
youth membership unless the Tierneys quit suing Sheridan and them. Bier and
Barnard did not use, or abuse, the power of the State's Attorneys
office to instruct and urge Sheridan to take this position. Bier
and Schnack were co-defendants with Sheridan in the Adams County
Action, and Barnard was Sheridan's attorney in the Adams County
Action. They did not act under color of law. Furthermore, Schnack
was not a state official. The Tierneys allege that Schnack acted
under color of law because he conspired with Bier and Barnard in
this endeavor, but since they were not acting under color of law
in this conspiracy, neither was he.
The Tierneys also repeatedly allege the legal conclusion that
Sheridan is a state actor. This Court already determined that
Sheridan was not a state actor in the Original Federal Action.
This finding is binding on these parties, absent an allegation of
some subsequent act by Sheridan that would change its status and
make it a state actor. See e.g., Chicago Truck Drivers,
Helpers and Warehouse Union (Independent) Pension Fund v. Century
Motor Freight, Inc., 125 F.3d 526, 530 (7th Cir. 1997). The
only alleged subsequent actions by Sheridan are: (1) being a
defendant in the Adams County Action, and (2) conspiring with
Bier, Barnard, Schnack and others to deny Case Tierney a youth
member unless the Tierneys would agree to quit suing it and them. The fact that the Tierneys joined Bier
and Sheridan as co-defendants in the Adams County Action does not
make Sheridan a state actor. Neither does Barnard's
representation of Sheridan as a private client in a private civil
action. Barnard does not act under color of law when he acts as a
private attorney representing private clients in civil law suits.
Honaker, 256 F.3d at 484-85. Also, as explained above, no party
to the conspiracy to deny Case Tierney a Sheridan youth
membership acted under color of law, so Sheridan cannot be
considered a state actor based on this conspiracy. Count II fails
to state a claim.
C. Count III
Count III asserts that the Defendants denied the Tierneys their
right to familial association with each other and with their son
Case Tierney. To state a claim for a violation of the right to
familial association, the Tierneys must allege that the
Defendants denied them, and Case, the right to live together as a
family. Brokaw v. Mercer County, 235 F.3d 1000, 1018-19
(7th Cir. 2000). The Tierneys do not allege that the
Defendants prevented them from living together as a family. Count
III fails to state a claim. D. Count IV
The Tierneys assert a claim for denial of procedural due
process. The Tierneys, however, do not allege that the Defendants
denied either of them a property or liberty interest. Case
Tierney was denied a Sheridan youth membership, but he has no
property or liberty interest in such a membership, and the
Tierneys, as his parents, certainly have no liberty or property
interest in such a membership. Furthermore, as explained above,
the denial of the youth membership did not involve any action
taken under color of law. Count IV fails to state a claim.
E. Count V
Count V alleges that Sheridan ratified the acts of the other
Defendants. Since the allegations against the other Defendants do
not state a claim, an allegation that Sheridan ratified those
acts does not state a claim.
F. Counts VI and VII
The Tierneys assert that the Defendants conspired to interfere
with their constitutionally protected rights and privileges,
including their rights to access to the courts and to petition
the Government for redress, in violation of 42 U.S.C. §§ 1985(2)
and (3). To state a claim under §§ 1985(2) and (3), a plaintiff must generally allege that the
defendant acted out of a class-based animus. Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). While a plaintiff does
not need to allege a class-based animus if he alleges a
conspiracy under § 1985(2) to interfere with a witness in a case
in federal court, he does need to allege a class-based animus to
state a claim for denial of access to the state courts. Wright
v. Illinois Dept. of Children & Family Services, 40 F.3d 1492,
1507 (7th Cir. 1994). The Tierneys allege a conspiracy to
interfere with the Adams County Action, in a state court, rather
than a federal court action. They further do not allege that any
Defendant acted out a class-based animus in any of their alleged
conspiracies against the Tierneys. The Tierneys therefore fail to
state claims under §§ 1985(2) or (3).
The Tierneys therefore fail to state a federal claim. The Court
declines to exercise jurisdiction over the supplemental claims
and so dismisses the Complaint.
II. AMENDED MOTION TO FILE SUPPLEMENTAL COMPLAINT
The Court also denies Robert Tierney's request to file a
supplemental complaint to include acts that occurred after the
filing of this action. The proposed supplemental complaint would
add some additional defendants and add allegations that center around Sheridan's continued
decision not to allow Case Tierney to have a youth membership
unless the Tierneys agree to stop suing it and the other
Defendants. Amended Motion for Leave to File a Supplemental
Complaint (d/e 71), Exhibit A, First Supplement to Second
Amended Complaint ¶ 109b. These allegations would fail to state
a claim for relief under § 1983 for the same reasons that similar
allegations in Counts II and IV fail to state a claim. The Court
therefore sees no reason to allow such a futile amendment.
Finally, due to the protracted litigation and the number of
failed law suits referenced in this Opinion which center around
the inability of Tierney family members to hold membership in the
Sheridan Swim Club, the Court directs that J. Robert Tierney and
Ann S. Tierney may only file additional law suits concerning the
Sheridan Swim Club and related issues if leave of Court is first
THEREFORE, the Motions to Dismiss filed by Defendants Sheridan
Swim Club, Inc., Robert W. Meyer, Andrew C. Schnack III, Doug
Olson, Robert Hultz, Jon Barnard, Barney S. Bier, and Dennis
Gorman (d/e 26, 44, 56, 59, & 61) are ALLOWED. Counts I, II, III,
IV, V, VI, and VII of the Corrected Second Amended Complaint are
dismissed with prejudice for failure to state a claim. The
remaining state law counts are dismissed for lack of subject matter jurisdiction. Plaintiff J. Robert
Tierney's Amended Motion for Leave to File Supplemental Complaint
(d/e 71) is DENIED. All pending motions are denied as moot. This
case is closed.
IT IS THEREFORE SO ORDERED.
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