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TIERNEY v. SHERIDAN SWIM CLUB

August 11, 2005.

J. ROBERT TIERNEY and ANN S. TIERNEY, Plaintiffs,
v.
SHERIDAN SWIM CLUB, INC., et al., Defendants.



The opinion of the court was delivered by: JEANNE SCOTT, District Judge

OPINION

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.

  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 Tierneys.

  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 ...


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