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Tolley v. State

December 20, 2006

LARRY WAYNE TOLLEY, PLAINTIFF,
v.
STATE OF ILLINOIS, ROD R. BLAGOJEVICH, LISA MADIGAN, JESSE WHITE, JUDY BAAR TOPINKA, DANIEL W. HYNES, ROBERT R. THOMAS, COUNTY OF ST. CLAIR, ILLINOIS, MARK KERN, C. BARNEY METZ, ELLEN A. DAUBER, OFFICER MUELLER, VILLAGE OF SHILOH, OFFICER STAUDENMAIER, MEARLE L. JUSTUS, VINCENT J. LOPINOT, SHERIFF S. WRIGHT, BRIAN BABKA, DOES 1 THROUGH 4000, FAIRVIEW HEIGHTS, ILLINOIS, POLICE DEPARTMENT, EMMET A. FAIRFIELD, MONICA J. SPURLING, PATRICK LONDRIGAN, OFFICE OF LIEUTENANT GOVERNOR, PATRICK QUINN, L. HURST, VICTORIA VASILEFF, MICHAEL HICKEY, DANIEL J. CUNEO, ILLINOIS STATE BAR ASSOCIATION, ROBERT B. HAIDA, NORMAN FORSHEE, ANTHONY P. LIBRI, JR., AMERICAN BAR ASSOCIATION, BROWN, HAY, AND STEPHENS, UNITED COMMUNITY BANK, COMMISSIONER BANKING AND REAL ESTATE OF STATE OF ILLINOIS, AND DOUGLAS GRUENKE, DEFENDANTS.



The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

On August 14, 2006, Plaintiff Larry Wayne Tolley filed a 46 page pro se complaint against numerous individuals and state and local officials (see Doc. 1). This complaint is titled "Trespass on the Case, Assault and Battery, False Arrest, False Imprisonment, Extortion, Kidnapping, Conspiracy" and consists of 38 counts setting forth vague, rambling, and delusional allegations.

On October 5, 2006, Tolley filed an amended complaint adding more parties, including, among others, a clinical psychologist, Daniel Cuneo; the St. Clair County, Illinois prosecutor, Robert Haida; the Illinois State Bar Association; and the American Bar Association (see Doc. 45). This 76 page complaint is labeled a "supplimental original bill" [sic] and also consists of delusional ramblings about trespass, assault and battery, false arrest and imprisonment, extortion, kidnapping, conspiracy, and violations of various federal statutes such as the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1961 to 1968, and 42 U.S.C. § 1983. While there are repeated references to the United States Constitution and various federal statutes throughout both the original complaint and the amendment, as will be discussed below, Plaintiff fails to assert any cognizable federal claims.

After numerous Defendants appeared and filed motions to dismiss, the Court set the matter for a hearing on December 18, 2006. Shortly before the hearing, Plaintiff moved for this Court to recuse (see Doc. 93). This motion set forth no reasonable basis for recusal, and it was denied on the record.

As an initial matter, the Court notes that it appears no defendant has been properly served. Pursuant to Federal Rule of Civil Procedure 4(e),

Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States:

(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or

(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

FED. R. CIV. P. 4(e). Proper service upon corporations and associations in a judicial district of the United States is similarly achieved, in the manner prescribed for individuals under subsection (e)(1), or by delivering a copy of the summons and of the complaint to an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

FED. R. CIV. P. 4(h). Nothing in the federal rule authorizes service by certified mail only. Yet it appears that this is the only method by which Plaintiff has attempted to serve the numerous defendants named in this lawsuit (see, e.g., Docs. 48-51). Without proper service, no defendant is in default and, for this reason, the motions for default and/or default judgment filed by Plaintiff (Docs. 18-33 and 83-88) are DENIED.

But lack of proper service is only one of many problems with this action. Because proper service would not be enough to allow this action to proceed in the district court, the Court will briefly address the arguments raised by defense counsel in the pending motions to dismiss and the merits of all claims.

The Court first notes the standard under which it considers a motion to dismiss. A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges the legal sufficiency of a plaintiff's complaint to state a claim upon which relief may be granted. See FED. R. CIV. P. 12(b)(6); Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). "The essence of a defendant's Rule 12(b)(6) motion is not that the plaintiff has pleaded insufficient facts, it is that even assuming all of his facts are accurate, he has no legal claim." Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999) (citing Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1059 (7th Cir. 1999)). In evaluating a Rule 12(b)(6) motion, a court must take a plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Swierkiewicz v. Sorema N. A ., 534 U.S. 506, 508 n.1 (2002); Strasburger v. Board of Educ., Hardin County Cmty. Unit Sch. Dist. No. 1, 143 F.3d 351, 359 (7th Cir. 1998). A complaint should be dismissed for failure to state a claim for relief only if "no relief could be granted 'under any set of facts that could be proved consistent with the allegations.'" Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). See also Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999).

As the Court stated at the December 18 hearing, the State of Illinois is immune from suit. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) ("Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought."). The individual defendants named in the action who are employees of the State of Illinois are also entitled to sovereign immunity, as any actions allegedly taken by them were taken in their official capacity. Id. at 169 (noting that the sovereign immunity bar "remains in effect when State officials are sued for damages in their official capacity."). Thus, the action fails against the following Defendants: State of Illinois, the Office of the Governor, Rod R. Blagojevich; Office of the Attorney General, Lisa Madigan; Office of the Lieutenant Governor, Patrick Quinn; Office of the Secretary of State, Jesse White; Office of Treasurer, Judy Baar Topinka; Office of Comptroller, Daniel W. Hynes; Office of the Chief Justice, Robert R. Thomas; C. Barney Metz; Ellen Dauber; Vince Lopinot; Brian Babka; Victoria Vasileff; Michael Hickey; Robert B. Haida; Patrick Londrigan; and Commissioner Banking and Real Estate, State of Illinois.

Moreover, the judicial defendants are entitled to judicial immunity. See, e.g., Mireles v. Waco, 502 U.S. 9 (1991). "Although unfairness and injustice may result on occasion, 'it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.'" Id. at 10 (quoting Bradley v. Fisher, 20 L.Ed. 646 (1872)). This doctrine mandates the dismissal of the following defendants: Office of Chief Justice, Robert R. Thomas, Judge Ellen A. Dauber, Judge Vincent J. Lopinot, Judge Brian Babka, and Judge Patrick J. Londrigan. Of course, a judge's absolute immunity extends to other public officials for "acts they are specifically required to do under court order or at a judge's discretion." ...


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