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Cueto v. Thomas

September 3, 2009

AMIEL CUETO, PLAINTIFF,
v.
ROBERT THOMAS, LLOYD KARMEIER, RITA GARMAN, THOMAS FITZGERALD, ANNE BURKE, CHARLES FREEMAN, THOMAS KILBRIDE, AND JAMES GROGAN, DEFENDANTS.



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

MEMORANDUM and ORDER

I. Introduction and Background

Now before the Court are Defendants' motions to dismiss (Docs. 9 & 12). All Defendants move to dismiss Plaintiff's claims arguing, inter alia, that the Rooker/Feldman doctrine bars Plaintiff's cause of action. Defendant Grogan also moves to dismiss Plaintiff's cause of action as time barred. Plaintiff opposes the motions (Docs. 18, 19 & 27). Based on the pleadings, the applicable law and the following, the Court GRANTS the motions to dismiss.

On December 10, 2008, Amiel Cueto, pro se, filed a three count complaint against Defendants Robert Thomas, Lloyd Karmeier, Rita Garman, Thomas Fitzgerald, Anne Burke, Charles Freeman, Thomas Kilbride and James Grogan pursuant to the Civil Rights Act, 42 U.S.C. § 1983 (Doc. 1). Counts I and II are against Thomas, Karmeier, Garman, Fitzgerald, Burke, Freeman and Kilbride, the seven current justices of the Illinois Supreme Court in their official capacities, for deprivations of Cueto's Fourteenth Amendment rights to due process and equal protection. Count I claims that the process in disbarring him violated his due process and the equal protection and that failure to vacate the order of disbarrment is a violation of the Fourteenth Amendment. Count II claims that the justices of the Illinois Supreme Court issued supervisory orders in two cases in which he filed against newspaper companies and that these orders violate the due process and equal protection clauses of the Fourteenth Amendment.*fn1 In Counts I and II, Cueto seeks declaratory relief. Count III is against Grogan in his official capacity as an officer of the Illinois Attorney Registration and Disciplinary Commission ("ARDC") for deprivations of Cueto's Fourteenth Amendment rights to due process and equal protection. In Count III, Cueto seeks $30,000,000.00 in compensatory damages, punitive damages up to nine times of the compensatory damages and attorney's fees.

In 1997, Cueto was convicted in the Southern District of Illinois of one count of conspiracy to defraud the United States and three counts of obstruction of justice. United States v. Cueto, No. 96-CR-30070-DRH (S.D. Ill. September 19, 1997)(Limbaugh, J.). The Seventh Circuit Court of Appeals upheld his conviction and sentence in 1998, United States v. Cueto, 151 F.3d 620 (7th Cir. 1998), and the United States Supreme Court subsequently denied certiorari, United States v. Cueto, 526 U.S. 1016 (1999).

Thereafter, Cueto filed a habeas corpus petition pursuant to 28 U.S.C. § 2255 on November 11, 1999. Cueto v. United States, 99--CV-0831-SNL (Doc. 1). District Judge Stephen Limbaugh denied Cueto's petition on August 18, 2000. Id. at Doc. 34. On March 15, 2001, the Seventh Circuit denied Cueto's request for certificate of appealability. Id. at Doc. 42. On July 19, 2002, Cueto filed another petition for habeas corpus pursuant to 28 U.S.C. § 2241. Cueto v. Stepp, 02-0777-JDT (Doc. 1). On December 15, 2005, Judge Tinder dismissed the § 2241 petition for want of jurisdiction as a successive petition barred by § 2255. Id. at Docs. 114 & 115.

Also in 1997, an ARDC Administrator initiated proceedings to have Cueto disbarred. In re Cueto, Comm. No. 97-SH-100 (Ill. A.R.D.C. March 28, 2003). On August 19, 1998, the Supreme Court of Illinois suspended Cueto from the practice of law pending further order. On August 31, 2001, the ARDC Review Board rejected a first set of findings issued by the ARDC Hearing Board and remanded for further proceedings, Comm. No. 97-SH-100 (Ill. A.R. D.C. Aug. 31, 2001), a decision left undisturbed by the Illinois Supreme Court, M.R. 17763, Comm. No. 97-SH-100 (Ill. Jan. 30, 2002). On July 19, 2004, the ARDC Review Board adopted the ARDC Hearing Board's second set of findings and recommended Cueto's disbarrment. Comm. No. 97-SH-100 (Ill. A.R.D.C. July 19, 2004). On November 17, 2004, the Illinois Supreme Court adopted the ARDC Review Board's recommendation and disbarred Cueto. M.R. 19679, Comm. No. 97-SH-100 (Ill. Nov. 17, 2004).

Thereafter on May 12, 2008, Cueto petitioned the Supreme Court of Illinois to vacate the order of disbarrment. The Illinois Supreme Court denied Cueto's motion on June 12, 2008. M.R. 19679, Comm. No. 97-SH-100 (Ill. June 12, 2008).

II. Motion to Dismiss

Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. To state such a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Motions to dismiss are intended only to test the legal sufficiency of the plaintiff's complaint, not to address the claims on their merits; summary judgment motions are the proper vehicles to consider legal arguments and evidence.

In 2007, the Supreme Court determined that Conley's famous "no set of facts" phrase "has earned its retirement." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, (2007). According to the Supreme Court, the threshold pleading requirement of Federal Rule of Civil Procedure 8 requires a complaint allege "enough facts to state a claim to relief that is plausible on its face" in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted. Id. at 570 (clarifying that a "heightened fact pleading of specifics" is not required)(emphasis added). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 555 (alteration in original)(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The plaintiff must plead factual allegations which show the right to relief exists beyond mere speculation by "rais[ing] a reasonable expectation that discovery will reveal evidence" to substantiate the plaintiff's claims. Id. at 556 ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable and 'that a recovery is very remote and unlikely.'")(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)(emphasis added)).

Further, when deciding a motion to dismiss, a court may consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment. Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998); Gen Elec.Capital Corp v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997). Judicial notice of historical documents, documents contained in the public record, and reports of administrative bodies is proper. Menominee, 161 F.3d at 456.

III. Analysis

Counts I ...


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