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Susan Stevens v. Dewitt County

March 28, 2012


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


Wednesday, 28 March, 2012 02:07:29 PM

Clerk, U.S. District Court, ILCD


This cause is before the Court on the Motion to Dismiss filed by Defendants DeWitt County, Kathy Weiss, Andrew Killian, and Dick Koritz (de/ 31).

Following the dismissal with prejudice of state criminal charges against her, Plaintiff sued former DeWitt County Circuit Clerk Weiss, DeWitt County State's Attorney Koritz, DeWitt County Assistant State's Attorney Killian, and DeWitt County. Plaintiff also sued Ryan Buehnerkemper, a state trooper, who has filed his own motion to dismiss. 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).

In October 2011, this Court dismissed Count IV with prejudice and dismissed Counts I and II without prejudice and with leave to replead Counts I, II, and III. On October 31, 2011, Plaintiff filed an Amended Complaint. Defendants have filed motions to dismiss.

For the reasons that follow, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.


The Amended Complaint contains the following allegations. Between 1983 and 2007, Plaintiff was employed by the DeWitt County Circuit Clerk's office as a Deputy Clerk/Bookkeeper. From December 1, 1998 until December 1, 2008, Defendant Weiss was the Circuit Clerk for DeWitt County. When Defendant Weiss retired from her position, she supported Lori Berger as her successor for the elected position of DeWitt County Circuit Clerk.

Plaintiff alleges that in March 2007, shortly after she told fellow employees she had an interest in a candidacy for County Clerk of DeWitt County in the next election, Defendant Weiss terminated Plaintiff's employment. The termination was "due to an alleged discrepancy between the written account and computer account being implemented" in the office. Amd. Cmplt. ¶ 10. Plaintiff was merely one of several employees who had access to the books and financial records of the clerk's office.

Thereafter, at the request of Defendant Weiss, Defendant "Killian (later under the direction of State's Attorney Koritz) initiated and conducted an investigation into the discrepancy in the two figures." Amd. Cmplt. ¶ 11. Weiss and Killian maintained involvement in the investigation.

Plaintiff alleges that prior to her being criminally charged, both DeWitt County and the Illinois State Police conducted an investigation into any improprieties allegedly committed by Plaintiff. Plaintiff also alleges that "[d]uring the course of the investigation, Defendants Kortiz and Killian ran against one another in the Republican primary for the office of State's Attorney in 2008" and that "Koritz won the nomination and, ultimately, the office." Amd. Cmplt. ¶ 15.

In March 2007, Killian asked the Illinois State Police for assistance concerning a potential embezzlement by Plaintiff, indicating that a cursory audit performed by Katye Goodin of Goodin Associates, Ltd. had discovered an $80,000 discrepancy between the handwritten books and the new computer system. Thereafter, at the request of Killian, 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 existed between the computerized records and the handwritten or manually kept records of the DeWitt County Circuit Clerk's office. According to Plaintiff, the "cursory audit did not determine which records were correct, whether there was any money missing whatsoever, or whether there were mere bookkeeping errors." Amd. Cmplt. ¶ 18. Plaintiff alleges, however, that three months before Plaintiff's scheduled criminal trial, approximately $125,000 was found in a bond account. Amd. Cmplt. ¶ 18.

On March 27, 2008, Killian convened a grand jury for the County of DeWitt. Defendant Buehnerkemper, the lead investigator in the investigation of Plaintiff, 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." Amd. Cmplt. ¶ 22. Plaintiff alleges, however, that no forensic audit had been performed. 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.

After a lengthy investigation, no credible evidence was found that Plaintiff or her husband had unlawfully obtained any monies from DeWitt County. Defendants nonetheless continued their investigation.

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 no forensic audit had taken place. The Illinois State police interviewed the previous accountant who had done several audits of the Circuit Clerk's office over a multi-year period and that accountant told the officer that "if there had been anywhere near the amount of money missing that they had alleged, it certainly would have become apparent and he would have found it during his audits." Amd. Cmplt. ¶ 30.

On May 13, 2009, Plaintiff was interviewed by the Illinois State Police, and no incriminating information was revealed. On May 15, 2009, Plaintiff was charged in state court with theft of $114,721.03 and official misconduct. See 720 ILCS 5/16-1(a)(1)(A) (West 2006); 720 ILCS 5/33-3(b) (West 2006). Koritz, with the knowledge and consent of all Defendants, made the decision to bring the charges and/or continue the investigation.

Defendant Buehnerkemper and other officers arrested Plaintiff. The arrest was authorized by Defendant Koritz. Plaintiff does not allege that she was arrested pursuant to an arrest warrant. Plaintiff alleges there was no probable cause for her arrest because there was no credible evidence she was criminally culpable or that any money was missing.

On May 15, 2009, 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, on the eve of trial, 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 accounting 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. Plaintiff further alleges that "Defendants for years failed to disclose material, exculpatory facts that there was no evidence of wrongdoing by [Plaintiff], and that there was no evidence that there was money actually missing."


A motion to dismiss under Federal Rule of 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, raising that possibility above a "speculative level." E.E.O.C. v. Concentra Health Services, Inc., 496 ...

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