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Mitchell v. Nesemeier

United States District Court, Seventh Circuit

October 9, 2013

Cynthia Jeanne Mitchell, Plaintiff,
Kenneth W. Nesemeier, et al., Defendants.


FREDERICK J. KAPALA, District Judge.

Defendants' motion to dismiss for failure to state a claim [76] is granted in part and denied in part. Counts II-IV, VI-VIII, and X are dismissed, as are defendants Williams, Vogt, and Lentz. Plaintiff's motion for summary judgment as to Counts I & XI [82] is denied.


Plaintiff, Cynthia Mitchell, has sued defendants, Stephenson County Sheriff David Snyders, Deputies Kenneth Nesemeier and Phillip Williams, Stephenson County State's Attorney John Vogt, Assistant State's Attorney Joe Lentz, and Stephenson County, for various violations of her constitutional rights arising from plaintiff's November 12, 2009 arrest and subsequent prosecution. That prosecution resulted in plaintiff being acquitted of all charges. Currently before the court are defendants' motion to dismiss seeking dismissal of Counts II-X of plaintiff's third amended complaint and plaintiff's motion for summary judgment on Counts I and XI. For the reasons which follow, defendants' motion is granted in part and plaintiff's motion is denied.


The following facts are taken from the third amended complaint. On November 12, 2009 at about 5:30 p.m., plaintiff was at her home, a trailer in Freeport, Illinois. Plaintiff heard a loud pounding on her front door and asked who was there. Nesemeier answered that it was the police and ordered plaintiff to open the door. When plaintiff inquired as to why Nesemeier wanted her to open the door, he answered: "To search the house." Plaintiff alleges that she demanded that Nesemeier obtain a search warrant before he could enter, but, instead, Nesemeier banged on the front and rear doors of plaintiff's home for approximately thirty minutes. Nesemeier then "tricked Plaintiff into opening the door by claiming that all he wanted to do was talk to her, " and that once she unlocked the door, he forced his way into her home. Plaintiff claims that she attempted to push back against the door being opened, but that Nesemeier was stronger than her and thus overpowered her resistance.

Once Nesemeier was inside her home, he grabbed plaintiff's arm and twisted it behind her back up to the back of her head, and then pinned her on top of a love seat. Nesemeier then handcuffed plaintiff and began hitting her in the face. Plaintiff alleges that Nesemeier hit her so hard that he "broke her glasses and dislodged one of her permanently attached ear piercings." Nevertheless, Nesemeier then took plaintiff out to his vehicle, patted her down on her breasts and buttocks, and then forced plaintiff into his vehicle.

Before Nesemeier left the scene, plaintiff's husband, James Mitchell, provided Nesemeier with plaintiff's medications and informed him that she needed the medications for her bipolar disorder. Nesemeier then transported plaintiff to the Stephenson County Jail. When plaintiff arrived at the jail, defendant Williams did an intake screening at which time he asked plaintiff whether she was taking any medications, to which she responded, "Yes." Plaintiff informed Williams that she had bipolar disorder. Plaintiff claims that because James Mitchell gave Nesemeier plaintiff's medication and told him that the medications were for bipolar disorder, Williams "knew or should have known that the medication then in his possession was the plaintiff's treatment for bipolar disorder." In any event, plaintiff never received her medications because Williams allegedly refused to give them to her, and as a result she suffered some of the symptoms which the medications were designed to prevent. According to the exhibits attached to the complaint, plaintiff was bonded out of jail the same day she was arrested.

After plaintiff's arrest and after conferring with Lentz, Nesemeier issued plaintiff two citations: one for battery and one for resisting or obstructing a peace officer. A bench trial took place on August 12, 2011, at which the court found plaintiff not guilty of the offenses with which she was charged. Plaintiff alleges that Nesemeier "admitted under oath to not having a warrant to enter the residence."

In light of the foregoing, on November 10, 2011, plaintiff filed her complaint in the instant matter. Over the next year and a half, plaintiff filed several amended complaints, culminating in the current version, the third amended complaint.[1] The third amended complaint sets out eleven claims: that Nesemeier violated her Fourth Amendment right to be free from unreasonable search and seizure pursuant to 42 U.S.C. § 1983 (Count I); Lentz violated her rights to due process pursuant to § 1983 (Count II); Williams was deliberately indifferent to her serious medical needs in violation of the Fourteenth Amendment pursuant to § 1983 (Count III); Lentz maliciously prosecuted her pursuant to Illinois tort law (Count IV); Nesemeier maliciously prosecuted her pursuant to Illinois law (Count V); Nesemeier and Lentz engaged in a conspiracy to deprive her of her rights pursuant to Illinois law (Count VI); Snyders maintained inappropriate policies in hiring, training, and supervising Williams and Nesemeier which led to constitutional deprivations pursuant to § 1983 (Count VII); defendants Vogt, Snyders, and Stephenson County are responsible for indemnifying any damages (Counts VIII, X, and XI respectively); and Snyders is responsible for his officers' actions under the theory of respondeat superior pursuant to Illinois law (Count IX). Defendants have responded with a motion to dismiss, seeking dismissal of Counts II-X. Also pending is plaintiff's motion for summary judgment as to Counts I and XI based on the findings of the state trial court at plaintiff's trial. The court will consider each motion in turn.


A. Defendants' Motion to Dismiss

When deciding a defendant's motion to dismiss, a court accepts all of the well-pleaded allegations of the complaint as true and draws all reasonable inferences in favor of the plaintiff. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007); Killingsworth v. HSBC Bank Nev., N.A. , 507 F.3d 614, 618 (7th Cir. 2007). Under the Federal Rules, a 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). "[D]etailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true... state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quotation marks omitted). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Id. at 679.

In their motion to dismiss, defendants argue that: (1) Lentz has absolute prosecutorial immunity from suit and thus all claims against him, and all claims for indemnification by Vogt on account of Lentz' actions, should be dismissed; (2) the claims against Williams and Lentz should be dismissed because they are time barred; (3) plaintiff has failed to state a plausible cause of action for conspiracy; (4) plaintiff has failed to state a plausible cause of action under Monell against Snyders; (5) the indemnification claims against Vogt and Snyders should be dismissed because Stephenson County is the entity responsible for indemnification based on the facts of this case; (6) plaintiff has failed to state a plausible cause of action for malicious prosecution against either Lentz or Nesemeier; (7) plaintiff has failed to state a plausible cause of action for deliberate indifference against Williams; and (8) Count IX should be dismissed because the state law claims, as set out in the previous arguments, should be dismissed and respondeat superior is not available for § 1983 claims. Plaintiff responds that: (1) Williams was timely served, (2) plaintiff has set out a plausible cause of action under Monell against Snyders, (3) plaintiff has set out a plausible claim for malicious prosecution against Nesemeier, (4) plaintiff has set out a plausible claim for deliberate indifference against Williams, and (5) that the claim for respondeat superior against Snyders should not be dismissed.

As is clear by comparing those lists, plaintiff did not respond to much of defendants' thorough and well-supported motion to dismiss. By failing to respond to those arguments, plaintiff has waived her right to contest them. See Alioto v. Town of Lisbon , 651 F.3d 715, 721 (7th Cir. 2011) ("Longstanding under our case law is the rule that a person waives an argument by failing to make it before the district court. We apply that rule where a party fails to develop arguments related to a discrete issue, and we also apply that rule where a litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss." (citations omitted)). Her waiver means that this court will grant the motion as to each waived argument and dismiss those claims, and defendants, as warranted. See id. ("Our system of justice is adversarial, and our judges are busy people. If they are given plausible reasons for dismissing a complaint, they are not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants' reasoning." (quotation marks omitted)); Bonte v. U.S. Bank, N.A. , 624 F.3d 461, 466-67 (7th Cir. 2010) ("Failure to respond to an argument-as the Bontes have done here-results in waiver.... This leaves us no choice but to accept U.S. Bank's assertions-supported as they are by pertinent legal authority-that the allegations in the Bontes' complaint do not entitle them to relief."). That means (1) all claims against Lentz are dismissed as barred by prosecutorial immunity and all claims against Vogt, which are all derivative of the claims against Lentz, are also dismissed; (2) all claims against Lentz are also dismissed as time barred; (3) the claim for conspiracy does not set out a plausible right to relief and must be dismissed; (4) the claims for indemnification against Snyders and Vogt must be dismissed; and (5) the claim for malicious prosecution against Lentz must also be dismissed for failure to state a plausible claim. Therefore, Counts II, IV, VI, VIII, and X are dismissed, along with defendants Lentz and Vogt. The court will consider the remaining arguments in turn.

1. The Timeliness of the Allegations Against Williams

Defendants argue that all claims against Williams are time barred, as plaintiff's only contact with Williams was on November 12, 2009 when he allegedly failed to provide her with her bipolar medication for the less-than-one-full-day she was in jail. In plaintiff's original complaint, filed November 10, 2011, she sued a "John Doe" officer, whom she later discovered was defendant Williams. Williams was not named in the complaint, nor served with the complaint, until the third amended complaint, which was filed on March 19, 2013, nearly three-and-a-half years after the original contact. Plaintiff does not contest that time line, but argues that her claims relate back to the filing of her original complaint under either the identity of interest or shared attorney exceptions to the timeliness requirements.

Suits under § 1983 use the statute of limitations and tolling rules that states employ for ersonal-injury claims. Richards v. Mitcheff , 696 F.3d 635, 637 (7th Cir. 2012). Illinois has a two-year statute of limitation on personal injury claims. See 735 ILCS 5/13-202. So, on their face, the claims against Williams asserted for the first time in March - are untimely. Whether a claim "relates back" to the filing of an original ...

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