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Brooks v. Ross

November 25, 2008

VICTOR BROOKS, PLAINTIFF,
v.
MARK ROSS; JOSEPH PONSETTO; EDWARD C. CARTER, III; JORGE L. MONTES; NORMAN M. SULA; AND KENNETH D. TUPY, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Defendants, consisting of an Illinois State Police Investigator, Assistant Attorneys General ("AAG") and members of the Prisoner Review Board ("PRB"), seek dismissal of a lawsuit by Plaintiff, a former member of the PRB, alleging section 1983 violations, and claims of malicious prosecution, conspiracy, and intentional infliction of emotional distress ("IIED"), arising out of his prosecution for official misconduct and wire fraud. Plaintiff names twelve counts, although only eight of these counts allege discernable causes of action.*fn1 For the following reasons, Defendants' motion to dismiss is granted.

II. STANDARD OF REVIEW

A Rule 12(b)(6) motion tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). Defendants' motion to dismiss should be granted only if Plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Furthermore, I must accept all well-pleaded factual allegations in the complaint as true, drawing all reasonable inferences from those facts in Plaintiff's favor. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). Stated another way, I should not grant Defendants' motion "unless 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)). That said, Plaintiff's "obligation to provide the grounds of his entitlement for relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, ---U.S. ----, ---- - ----, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007).

III. STATEMENT OF RELEVANT FACTS

Plaintiff's first amended complaint alleges the following facts. From 1977 until 1993, Plaintiff was employed in the Illinois Department of Corrections ("IDOC") where he met Ronald Matrisciano, another employee. In 1995, Plaintiff was appointed to serve on the Illinois Prisoner Review Board. In early 2002, on one of Plaintiff's official visits to Stateville Correctional Facility, Matrisciano, then Assistant Deputy Director, District One, approached Plaintiff and disclosed his intention to testify before the PRB in support of inmate Harry Aleman's parole.

Soon after, the two had another conversation during which Plaintiff spoke about an upcoming trip to Las Vegas to visit his son, who had recently moved there. In October of 2002, the two spoke again by telephone about Matrisciano's plans to travel to Las Vegas and potentially visit with Plaintiff's son while he was there.

On December 17, 2002, Matrisciano testified before the PRB on Aleman's behalf. Plaintiff also participated in the hearing. In a role call vote of eleven PRB members, Plaintiff provided the one vote in opposition to a motion to deny parole for Aleman. Plaintiff then provided one of three votes in opposition to a motion to continue Aleman's parole eligibility for three years. At no time did any member of the fifteen-member PRB state that Plaintiff or Matrisciano offered anything of value in return for the member's vote in favor of paroling Aleman. No official connected to the PRB, including Defendant PRB members Jorge Montes and Norman Sula, and PRB counsel Kenneth Tupy, made any attempt to prevent Matrisciano from testifying.

After the hearing, several media inquiries were made to the IDOC regarding Aleman's hearing. IDOC Chief of Communications, Sergio Molina, publicly stated that the IDOC "certainly [doesn't] condone a staff member presenting themselves before the Prisoner Review Board to advocate for an inmate." IDOC initiated an inquiry into the circumstances surrounding Matrisciano's testimony, and Matrisciano was later demoted. Soon after, IDOC issued a legal opinion stating that the Department "no longer has a written policy concerning staff recommendations to the Parole Board." The investigation was then referred to the Illinois State Police.

In February 2003, Mark Ross of the Illinois State Police prepared the first of several investigative reports stating it was alleged that "Matrisciano and an unknown member of the parole board, had accepted payment to speak favorably on behalf of inmate Harry Aleman at a parole hearing for Aleman." Shortly thereafter, Ross allegedly interviewed a confidential source at IDOC who stated that Aleman alleged that an IDOC employee was to testify on his behalf.*fn2

In April 2003, Matrisciano filed a civil suit against IDOC regarding his demotion. The following year, the Illinois Civil Service Commission issued a determination that IDOC had violated Illinois Personnel Rules with regard to Matrisciano. Matrisciano was re-employed with IDOC. The State Police investigation, however, continued. Plaintiff was notified that he was denied re-nomination as a member of the PRB by Governor Rod R. Blagojevich.

In May and June of 2004, Ross provided summaries of interviews conducted with PRB Defendants Jorge Montes and Norman Sula. In January of 2005, Ross provided summaries of an interview conducted with Harry Aleman. Ross again issued an investigative report stating it was alleged that "Matrisciano and an unknown member of the PRB, later identified as Victor Brooks, had accepted payment to speak favorably on behalf of inmate Harry Aleman at a parole hearing for Aleman." Ross and another investigator later issued investigative reports reflecting that Defendants Joseph Ponsetto and Edward C. Carter, III, both AAGs, were present and assisted during interviews with a former IDOC employee.

According to Plaintiff, in November 2005, Defendants Ross and/or Ponsetto and/or Carter determined that there was no credible evidence to support allegations against Plaintiff, and at least one of them then fabricated the allegation that Plaintiff accepted employment assistance for his son in exchange for his favorable vote at Aleman's hearing. In December 2005, Plaintiff was indicted by the Grand Jury and charged with official misconduct and wire fraud. Plaintiff was tried in March of 2007 and acquitted on a motion for directed verdict.

Plaintiff alleges that at least "one or more" of the Defendants provided false or misleading information in conjunction with Plaintiff's indictment, arrest and ...


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