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McCann v. Village of Pontoon Beach

June 30, 2010


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


Pro se Plaintiff Lisa McCann (McCann) filed two separate letters, within a two-day period, construed by this Court as Complaints. The first Complaint is brought against the Village of Pontoon Beach Police and several other defendants (collectively, Pontoon Beach Defendants) alleging, inter alia, constitutional violations including, illegal search and seizure, improper interrogations, and false arrest (see Doc. 1). The second Complaint is brought against the Madison County Sheriff's Office, the County Sheriff, and several other defendants (collectively, Madison County Defendants) alleging similar constitutional violations, including excessive bail and additional civil rights claims stemming from her various periods of confinement in the Madison County Jail (see Case No. 09-689-GPM, Doc. 1). McCann's two complaints overlap extensively with similar claims and conduct involving allegations against many of the same parties. As a result, the two cases were consolidated by Order of this Court (see Doc 6).


McCann filed her original Complaint on September 1, 2009, claiming that she had been "incarcerated for 7 months so far on what amounts to false arrest, false imprisonment, wrongful conviction, unlawful persecution [sic], abuse of power and official police misconduct" (Doc. 1-2, p. 1).*fn1 The next day, McCann filed a second Complaint against the Madison County Defendants alleging "civil, constitutional and prisoner right violations" (Case No. 09-689, Doc. 1, p. 1). McCann admits that "[t]his all stems for [sic] a criminal damage to property case I was accused of" (Doc. 1, p. 1). Apparently, these accusations began a long chain of events that has included investigations into criminal conduct by McCann, criminal charges to which she pled guilty, in-patient treatment for severe depression and post traumatic stress disorder (PTSD), various detentions in the county jail and the instant litigation (see Doc. 1-2).

In their Motion to Dismiss (Doc. 37) pursuant to Federal Rule of Civil Procedure 12(b)(6), the Pontoon Beach Defendants argue that: (1) Plaintiff makes no claim against the Village of Pontoon Beach, Police Chief Charles Luehmann, or Officer Christopher Modrusic; (2) claims brought against Officer Carney and Detective Schardan arising from a July 2007 arrest and an August 2007 search are barred by the two year statute of limitations applicable to Title 42, United States Code, Section 1983 claims in Illinois; (3) Plaintiff fails to sufficiently allege the personal involvement of Defendants Luehmann and Modrusic; and (4) the Village of Pontoon Beach is not a proper Defendant.

The Madison County Defendants, in their Motion to Dismiss (Doc. 35) argue that: (1) Plaintiff's allegations are too vague to support her claim that her constitutional rights were violated; (2) Plaintiff makes no allegations against the Madison County Sheriff's Office, Sheriff Hertz or Dr. Blankenship; (3) Plaintiff fails to plead the bare minimum of facts necessary to put Defendants on notice of her claims; specifically, she fails to connect her alleged violations to a particular Defendant; and (4) it is impossible to identify Plaintiff's claims due to the confusing structure of her Complaint and due to the absence of numbered paragraphs as required by Fed. R. Civ. P. 10(b). To date, McCann has not responded to either Defendants' Motion to Dismiss.


It is a plaintiff's burden to plead sufficient factual matter to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 129 S.Ct.1937, 1949 (2009), citing Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 556 (2007). Under Iqbal, "a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id., citing Twombly, 550 U.S. at 556. Further, "'determining whether a complaint states a plausible claim for relief will . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009), quoting Iqbal, 129 S.Ct. at 1950.

McCann's Complaints-a series of rambling, disjointed letters-are short on basic details, long on legal conclusions, and fail to make any allegations against a number of the named defendants. That said, McCann is proceeding pro se and as such, her Complaints will be liberally construed. See Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). Nevertheless, even when granted a liberal construction, a complaint is properly dismissed where it "alleges no specific act or conduct on the part of [a] defendant and the complaint is silent as to the defendant except for his name appearing in the caption." Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974).

In light of Potter, certain defendants, named by McCann only in the caption or in a cursory fashion, are entitled to dismissal. For example, both Police Chief Charles Luehmann (Chief Luehmann) and Dr. Blankenship are named as potential defendants, but McCann makes no specific claims against them whatsoever. Further, McCann mentions Officer Modrusic and Sheriff Hertz each only one time, without alleging any specific act or conduct on their part. As such, under Potter, these four Defendants-Chief Luehmann, Officer Modrusic, Dr. Blankenship, and Sheriff Hertz-are hereby DISMISSED with prejudice from this action. Potter, 497 F.2d at 1207. The remaining parties, however, may not be properly dismissed at this time.

McCann's Complaints cite numerous alleged constitutional and civil rights violations, all of which the Court construes as being brought pursuant to 42 U.S.C. § 1983. See Maxwell v. Village of Sauget, Ill., No. 06-451-GPM, 2007 WL 420195, *2, n. 1 (S.D. Ill. Feb. 5, 2007) (Title 42 U.S.C. § 1983 "is the exclusive remedy for the constitutional deprivations alleged in [McCann's] complaint." (citations omitted)). As such, all of McCann's claims are subject to the two year statute of limitations applicable to section 1983 claims in Illinois. Licari v. City of Chicago, 298 F.3d 664, 667-68 (7th Cir. 2002). Further, "such claims accrue when the plaintiff knows or should have known that [her] constitutional rights were violated." Id. at 668.

Indeed, the Pontoon Beach Defendants raise a statue of limitations defense in their Motion to Dismiss (see Doc. 37, ¶ 2). "While complaints typically do not address affirmative defenses, the statute of limitations may be raised in a motion to dismiss 'if the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense.'" Brooks, 578 F.3d 574 at 579, quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (finding it appropriate to consider a statute of limitations defense "because the relevant dates [were] set forth unambiguously in the complaint"). Here, the problem is that McCann's Complaint is almost entirely devoid of specific dates. As a result, the allegations of the complaint itself do not set forth everything necessary to satisfy the statute of limitations defense raised by the Pontoon Beach Defendants.

To show that certain alleged constitutional violations are, in fact, barred by the statute of limitations, the Pontoon Beach Defendants attach a police report to their motion-a document outside of McCann's pleadings (Doc. 37, pp. 5-7)-raising another procedural concern. The Court, however, may consider any authentic document that is "central to the plaintiffs' claim," and to which the complaint refers. Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). Here, McCann does, in fact, repeatedly refer in her Complaint to the Pontoon Beach police report submitted by Officer Carney. Moreover, the police report outlines conduct that is central to many of her claims. As such, the Court has considered the police report, dated July 3, 2007 (Doc. 37, pp. 5-7), and finds that all of McCann's allegations arising from conduct covered by the police report are barred by the two year statute of limitations applicable to section 1983 claims in Illinois. Further, any other allegations arising from conduct that occurred before September 1, 2007, are barred by the same.

Therefore, in light of the two year statute of limitations, the following claims are hereby DISMISSED with prejudice: the alleged false arrest by Officer Carney; the alleged unreasonable search and seizure claims for lack of probable cause against Officer Carney for the search of McCann's person that occurred incident to McCann's arrest; the alleged Fifth Amendment violations for a lack of a Miranda warning and any allegations regarding her initial questioning and alleged confession; McCann's allegations against Officer Carney and Detective Schardan for illegal search and seizure of her home ...

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