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Susan Stevens v. Dewitt County

October 17, 2011

SUSAN STEVENS, PLAINTIFF,
v.
DEWITT COUNTY, ILLINOIS, KATHY WEISS, IN HER OFFICIAL AND INDIVIDUAL CAPACITIES; ANDREW KILLIAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES; RYAN ) BUEHNERKEMPER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES; AND DICK KORITZ, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED Tuesday, 18 October, 2011 02:46:18 PM

Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on the Motions to Dismiss filed by Defendant Ryan Buehnerkemper (d/e 15) and Defendants DeWitt County, Kathy Weiss, Andrew Killian, and Dick Koritz (de/ 23).

Following the dismissal with prejudice of state criminal charges against her, Plaintiff sued Weiss, the former DeWitt County Circuit Clerk, Illinois State Police Trooper Buehnerkemper, DeWitt County State's Attorney Koritz, DeWitt County Assistant State's Attorney Killian, and DeWitt County. Plaintiff brought three claims pursuant to 42 U.S.C. § 1983: false arrest (Count I), false imprisonment (Count II), and malicious prosecution (Count IV). She also brought one claim under state law for malicious prosecution (Count III). For the reasons that follow, the federal claims (Counts I, II, and IV)are dismissed with leave to replead Counts I and II. Plaintiff may replead her state law claim (Count III) when she files her amended complaint.

However, Count IV is dismissed with prejudice because the Seventh Circuit does not recognize a § 1983 malicious prosecution claim where state law provides a remedy. Plaintiff failed to state a claim against DeWitt County because Plaintiff did not allege the existence of a policy or custom that caused the violation of Plaintiff's constitutional rights. Plaintiff also failed to state a claim against Defendant Weiss because Plaintiff did not allege any involvement by Defendant Weiss in Plaintiff's arrest, imprisonment, or prosecution.

The official capacity claims for damages against Defendants Buehnerkemper, Koritz, and Killian are dismissed as barred by the Eleventh Amendment and for the failure to allege the existence of a policy or custom that caused the violation of Plaintiff's constitutional rights. Finally, the individual capacity claims against Defendants Buehnerkemper, Koritz, and Killian, as alleged, are barred by absolute immunity.

I. BACKGROUND

In June 2011, after this case was transferred to this Court from the Southern District of Illinois, Plaintiff filed a Complaint containing four counts: (1) a § 1983 claim for false arrest (Count I); (2) a § 1983 claim for false imprisonment (Count II); (3) an Illinois state claim for malicious prosecution (Count III); and (4) a § 1983 malicious prosecution claim (Count IV). Plaintiff alleged the following facts*fn1 .

Between 1983 and 2007, Plaintiff was employed by the DeWitt County Circuit Clerk's office as a Deputy Clerk/Bookkeeper. From December 1, 1998 to December 1, 2008, Defendant Weiss was the Circuit Clerk for DeWitt County.

On March 23, 2007, Defendant Weiss terminated Plaintiff's employment "allegedly for the inability to adequately perform the assigned duties and responsibilities, gross negligence, the performance or lack of performance of assigned duties and responsibilities; [and] disregard for proper performance of assigned duties and responsibilities." (Cmplt. ¶ 10). Plaintiff was prohibited from entering the DeWitt County Circuit Clerk's office except to conduct personal business and transactions.

Thereafter, DeWitt County and the Illinois State Police conducted an investigation into any improprieties allegedly committed by Plaintiff. On March 27, 2007, Defendant Killian contacted the Illinois State Police to request assistance concerning potential embezzlement by Plaintiff. Defendant Killian told the State Police that a cursory audit by Kayte Goodin of Goodin Associates, Ltd., had discovered a discrepancy of approximately $80,000 in the books of the DeWitt County Circuit Clerk's office.

Thereafter, the firm of Mose, Yockey, Brown & Kull LLC performed an audit. On June 1, 2007, Mose, Yockey, Brown & Kull LLC reported the results of the audit to the County Board members of DeWitt County. The results of the audit indicated discrepancies between the computerized records and the handwritten or manually kept records of the DeWitt County Circuit Clerk's office.

On March 27, 2008, Defendant Killian convened a grand jury for the County of DeWitt. Defendant Buehnerkemper, who was assisting with the investigation, testified. During Defendant Buehnerkemper's direct examination by Defendant Killian, both Defendant Buehnerkemper and Defendant Killian stated that there had been a "forensic audit of the books" which indicated a large amount of money was missing and "that the loss indicated that Plaintiff . . . was responsible for the missing funds." (Cmplt. ¶ 19). At the request of Defendant Killian, the grand jury agreed to issue subpoenas for the bank, credit, and debtor records of Plaintiff and her husband.

Plaintiff alleges that, despite the testimony at the grand jury proceedings, no forensic audit had ever been performed. On August 1, 2008, Kent Kull, the accountant involved in the audit, admitted to a State Police investigator that he was not a forensic auditor and that a forensic audit had not taken place, nor had he been contracted to conduct a forensic audit in 2007. Plaintiff also alleges that the lengthy investigation did not reveal any evidence that Plaintiff or her husband unlawfully obtained monies from DeWitt County.

On May 13, 2009, Plaintiff was interviewed by officers of the Illinois State Police. On May 15, 2009, Plaintiff was charged with theft and official misconduct. Plaintiff was arraigned and remanded to the custody of the Sheriff pending posting of bond. Plaintiff posted bond on May 29, 2009.

On August 17, 2010, Defendant Koritz issued a press release indicating that the charges of official misconduct and theft were being dismissed with prejudice. The press release indicated that no forensic audit account of the books had been performed, as had been represented to the grand jury, and that there was no direct evidence Plaintiff committed a crime or was guilty of any wrongdoing.

Plaintiff alleges that at no time was there any evidence that Plaintiff committed a crime either prior to her being charged on May 15, 2009, or thereafter. In her Complaint, Plaintiff seeks damages in excess of $100,000, punitive damages, costs of suit, and such other relief as the Court deems just and proper under the circumstances.

II. JURISDICTION AND VENUE

This Court has subject matter jurisdiction because Plaintiff's claims in Counts I, II, and IV are based on a federal statute. See 28 U.S.C. § 1331. The Court has jurisdiction over the remaining state claim in Count III pursuant to its supplemental jurisdiction. See 28 U.S.C. § 1367(a). Venue exists because a substantial part of the events giving rise to Plaintiff's claims occurred in this judicial district. See 28 U.S.C. §1391(b) (a civil action where jurisdiction is not founded solely on diversity of citizenship may be brought in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred).

III. LEGAL STANDARD

A motion to dismiss under Federal Rule Civil Procedure 12(b)(6) permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). For purposes of the motion, a court must accept as true all well-pleaded allegations contained in the complaint and draw all inferences in the light most favorable to the non-moving party. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir. 2011). To avoid dismissal for failure to state a claim, the complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). That statement must be sufficient to provide the defendant with "fair notice" of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This means that (1) "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" and (2) its allegations must plausibly suggest that the plaintiff has a right to relief, ...


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