The opinion of the court was delivered by: James B. Zagel United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff brings this case alleging that Defendants intentionally prevented a court ordered expungement from being completed and submitted two false reports to the FBI regarding Plaintiff's criminal records. Defendants, the County of DuPage and Assistant State's Attorney Alexander McGimpsey ("McGimpsey"), (collectively "Defendants"), come now with a motion to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 4(m) and 12(b)(6). For the foregoing reasons, I grant in part and deny in part Defendants' motion to dismiss.
Plaintiff, David Bourke, was convicted of murdering Roger Johnson on April 16, 1998. On April 21, 2001, the Illinois Appellate Court found that Bourke was acting in self-defense and overturned his conviction. That decision had the effect of an acquittal. Following this ruling, Plaintiff filed a Petition to Expunge in the Circuit Court of the 18th Judicial Circuit, DuPage County, Illinois. On July 3, 2003 the Circuit Court entered an order directing the expungement of all records by the Illinois State Police, Downers Grove Police Department and the Circuit Court Clerk of DuPage County relating to Plaintiff's arrest for murder on April 16, 1998.
Plaintiff asserts that from 2003 to 2008, Plaintiff's criminal history erroneously included the expunged murder conviction. Furthermore, Plaintiff alleges that during 2009 either the Illinois State Police or the Illinois Department of Corrections, or both agencies, submitted two false reports to the FBI regarding Plaintiff's criminal records. One report falsely stated that Plaintiff was arrested on the charge of murder on March 22, 2007. The second report falsely stated that Plaintiff was arrested for a class three felony intimidation.
Because of these actions, employers searching Plaintiff's criminal background would see false or misleading information. Beginning in August 2003, Plaintiff began diligently seeking employment as a truck driver. It was not until January 2007 that Plaintiff discovered that his record was not expunged. Plaintiff asserts that he has suffered substantial financial, physical, emotional and psychological harm as a result of Defendants' allegedly wrongful actions.
Plaintiff's Amended Complaint has four counts: (1) Count I seeks relief under 42 U.S.C. § 1983 alleging that McGimpsey and/or other Unknown Prosecutors denied him due process of law under the Fourteenth Amendment when they instructed Illinois State Police not to implement the expungement order, instructed Illinois State Police to place a "custodial hold" on the expungement order, and prevented the expungement of Plaintiff's criminal records maintained by the Illinois State Police; (2) Count II seeks a declaratory Judgment against the Illinois State Police, the Illinois Department of Corrections, McGimpsey and Unknown Prosecutors; (3) Count III seeks relief under 42 U.S.C. § 1983 alleging that the Illinois State Police and the Illinois Department of Corrections violated Plaintiff's rights to due process when they failed to expunge his record and provided erroneous criminal history information to the FBI; (4) Count IV seeks relief for intentional infliction of emotional distress for the actions of McGimpsey and Unknown Prosecutors.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. In ruling on such a motion, I accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To state 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). That said, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what . . . the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation and citation omitted). The "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
Under Federal Rule of Civil Procedure 4(e)(2), proper service is achieved by delivering a copy of the summons and complaint to the defendants personally. Under Rule 4(m), this service must be made within 120 days after filing the complaint, and I should dismiss the action without prejudice if it is not. If the plaintiff shows good cause for its failure to serve, I must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m).
A. I Deny Dismissal for Failure to Serve Process in a Timely Manner
Defendants ask that I dismiss Plaintiff's case without prejudice in accordance with Federal Rule of Civil Procedure 4(m). Rule 4(m) states that if a defendant is not served within 120 days after the complaint is filed, a court must dismiss the action without prejudice. Fed. R.Civ. P. 4(m). However, if plaintiff has ...