The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Magistrate Judge David G. Bernthal filed two Reports and Recommendations (#24, #25) in the above cause on August 20, 2007. On August 27, 2007, Defendant Arthur I.G.A. Foodliner (I.G.A.)*fn1 filed its Objection to Report and Recommendation (#26). On September 7, 2007, Plaintiff, Jordan T. Banton, filed his Objections to Denial of Leave to File Amended Complaint, and to Reports and Recommendations of the Magistrate Judge (#27). Following this court's careful de novo review of the Magistrate Judge's reasoning and the Objections filed, this court agrees with and accepts the Magistrate Judge's Reports and Recommendations (#24, #25). This court also denies Plaintiff's Objection to Denial of Leave to File Amended Complaint.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint, not the factual sufficiency. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001); see also Cler v. Ill. Educ. Ass'n, 423 F.3d 726, 729 (7th Cir. 2005). When considering a motion under Rule 12(b)(6), a court must accept the factual allegations as true and draw all reasonable inferences in favor of the plaintiff. See Centers v. Centennial Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005); see also Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200 (2007).
Working hand in glove with Rule 12(b)(6) is Rule 8(a) of the Federal Rules of Civil Procedure. Cler, 423 F.3d at 729. Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson, 127 S.Ct. at 2200. In order to meet this requirement, the complaint must "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 127 S.Ct. at 2200, quoting Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007); see also E.E.O.C. v. Concentra Health Servs., Inc., ___ F.3d ___, 2007 WL 2215764, at *2 (7th Cir. 2007). In addition, the claim must be supported with enough facts, taken as true, that plausibly suggest that the plaintiff is entitled to relief. See Bell Atl. Corp., 127 S.Ct. at 1965; see also Concentra Health, 2007 WL 2215764, at *2. However, a plaintiff can plead himself out of court by alleging facts which show that he has no claim. Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995). Therefore, if a plaintiff "pleads facts which show that his suit is time-barred or otherwise without merit, he has pleaded himself out of court." Tregenza v. Great Am. Commc'ns Co., 12 F.3d 717, 718 (7th Cir. 1993); Lovett v. Seniff, 277 F. Supp. 2d 896, 897 (N.D. Ind. 2003).
B. RECOMMENDATION REGARDING HANSEN AND GOODMAN
Judge Bernthal has recommended granting the Motion to Dismiss (#14) filed by Defendants Roger Hansen and Michael Goodman. Based upon a lengthy and detailed analysis, Judge Bernthal first concluded that Count I, Plaintiff's Fourth Amendment claim against Hansen, must be dismissed because Plaintiff's allegations show that he was not seized pursuant to the Fourth Amendment. Judge Bernthal next concluded that Count II, Plaintiff's state law malicious prosecution claim against Hansen, must be dismissed. Judge Bernthal noted that Plaintiff alleged that Hansen received a report from an alleged eyewitness that Plaintiff committed a theft. Judge Bernthal concluded that "the eyewitness report of theft established probable cause, and even assuming Plaintiff's allegations against Hansen are true, Plaintiff has pleaded himself out of a claim." Judge Bernthal also concluded that Count III, Plaintiff's malicious prosecution claim against Goodman, must be dismissed because it is time barred.*fn2
In his Objections, Plaintiff complained that the allegations of his Third Amended Complaint, which he was not allowed to file, show that he was, in fact, seized for purposes of the Fourth Amendment. However, in making his recommendation in this case, Judge Bernthal considered all the arguments of the parties, including the arguments regarding the Third Amended Complaint. Judge Bernthal concluded, based upon an analysis of pertinent authority, that Plaintiff's factual allegations showed that he was not seized pursuant to the Fourth Amendment. Plaintiff has argued in his Objections that his allegations that he was summonsed to court and to stand trial suffice to show that he was "seized." However, this court agrees with Judge Bernthal's conclusion that, based upon a careful reading of the applicable case law, the issuance of a summons and requirement that Plaintiff appear in court does not constitute a seizure in the context of the Fourth Amendment. Because Plaintiff's factual allegations show that he has no claim under the Fourth Amendment, this court agrees with Judge Bernthal that Count I must be dismissed.
Plaintiff also complained that Judge Bernthal was incorrect when he concluded that Plaintiff's malicious prosecution claim against Hansen should be dismissed. Plaintiff argued that, because he alleged that Hansen fabricated evidence in the police report and omitted exculpatory evidence from the report, he negated the defendants' assertions of probable cause and adequately alleged a malicious prosecution claim. Judge Bernthal thoroughly addressed this argument in his Report and Recommendation. Judge Bernthal noted that Plaintiff alleged that Hansen wrote in a police report that he spoke with Dowds who alleged that she saw Plaintiff commit the alleged theft between 7:30 p.m. and 8:00 p.m. on June 25, 2005.*fn3 Judge Bernthal concluded that, because courts have consistently held that an identification or a report from a single, credible victim or eyewitness can provide the basis for probable cause, Plaintiff's allegations of an eyewitness report of theft established that Hansen had probable cause to believe that Plaintiff committed a theft. Judge Bernthal noted that Plaintiff's allegations that Hansen fabricated evidence related to Plaintiff's credibility, a matter immaterial to the determination of probable cause. Judge Bernthal also stated that the evidence Plaintiff alleged that Hansen withheld was in the nature of an alibi. After a careful analysis of pertinent case law authority, Judge Bernthal concluded that the inclusion of this information in the report would not have negated the existence of probable cause. Judge Bernthal concluded that, because the eyewitness report of the theft established probable cause, Plaintiff has pleaded himself out of a claim. This court agrees with Judge Bernthal's reasoning and therefore agrees that Count II of Plaintiff's Amended Complaint must be dismissed.
In his Objections, Plaintiff pointed out that his proposed Third Amended Complaint included a new count which alleged that Hansen violated Plaintiff's right to due process, specifically a fair and impartial trial, by fabricating evidence and withholding exculpatory evidence from the prosecutor who tried Plaintiff for theft. Plaintiff argued that the fact that he was acquitted of the charge does not eliminate the due process violation. Plaintiff also pointed out that he included an additional new count which alleged that Goodman was also liable under 42 U.S.C. § 1983 based upon his acquiescence in Hansen's unconstitutional and tortious actions. Judge Bernthal addressed a similar argument in his Report and Recommendation. Judge Bernthal concluded that the allegations show that Hansen did not "participate directly" in any purported constitutional deprivation, noting that the prosecutor made the subsequent and independent decision to prosecute and issue a summons calling Plaintiff into court. This court agrees with Judge Bernthal that Plaintiff's factual allegations, including all of the factual allegations included in the proposed Third Amended Complaint, show that Hansen did not "participate directly" in any purported constitutional deprivation. Therefore, neither Hansen nor Goodman are subject to liability under 42 U.S.C. § 1983 based upon the allegations in Plaintiff's Third Amended Complaint.
C. RECOMMENDATION REGARDING I.G.A.
In his Report and Recommendation (#25), Judge Bernthal recommended granting in part and denying in part the Motion to Dismiss (#3) filed by I.G.A. Judge Bernthal concluded that Count V, Plaintiff's sexual harassment claim against I.G.A., was not timely. This was because Plaintiff alleged that the act of harassment occurred on June 29, 2005, and Plaintiff did not file a charge of discrimination until May 5, 2006, 310 days later, well beyond the 300-day limitations period applicable to Title VII claims. Judge Bernthal concluded, however, that Count VI, Plaintiff's Title VII retaliatory discharge claim against I.G.A., was not subject to dismissal at this stage of the proceedings. I.G.A. argued that Plaintiff was fired on June 29, 2005, but Plaintiff alleged that he was informed that his employment was terminated on July 20, 2005. Judge Bernthal thus found that a factual issue existed regarding whether Plaintiff's claim of retaliation was timely ...