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Rotheimer v. Kalata

United States District Court, N.D. Illinois, Eastern Division

March 3, 2015



JOHN W. DARRAH, District Judge.

Plaintiff Adam Rotheimer has brought a five-count Third Amended Complaint against former Lake County State's Attorney Michael J. Waller; Assistant State's Attorneys Eric Kalata, Stephen Scheller and Dan Brown; Lake County Sheriff Mark Curran; and former Lake County Sheriff's Office employees Paul Warner and Willis S. Werner, relating to Plaintiff's arrest and prosecution for allegedly threatening an Illinois state court judge in March 2010.[1] Defendants have moved to dismiss the Third Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(6), for failure to state a claim. For the reasons presented below, Defendants' Motion to Dismiss [79] is granted.


In March 2010, Plaintiff, a hospital patient receiving mental health treatment, allegedly made threatening statements against a state court judge during a session with Plaintiff's social worker. (TAC ¶ 21.) After the social worker reported the alleged threat to law enforcement, Plaintiff was arrested and jailed for over a month. ( Id. ¶¶ 22, 31.) Plaintiff was declared unfit to stand trial, and the case was dismissed in July 2010. ( Id. ¶ 34.)

Plaintiff initiated this suit on March 6, 2012. On November 19, 2012, he amended his Complaint to allege five separate counts, including claims for violation of his Fourteenth Amendment right to due process, conspiracy, malicious prosecution, respondeat superior, and indemnification. On April 17, 2013, this Court granted Defendants' Motion to Dismiss, dismissed some counts with prejudice and some without, and granted Plaintiff leave to amend. Plaintiff then filed a Second Amended Complaint, alleging two counts under 42 U.S.C. § 1983 against Defendants Warner and Werner, in their individual capacities.

On November 6, 2013, this Court granted Defendants' Motion to Dismiss the Second Amended Complaint and granted Plaintiff final leave to amend his claims within thirty days. Soon after the dismissal, Plaintiff's attorney withdrew, indicating that he did not want to pursue Plaintiff's case. The matter was continued several times to give Plaintiff an opportunity to find new counsel and amend his claims.

At one status, Plaintiff's sister, Denise Rotheimer, appeared and asked to represent Plaintiff. The Court informed Ms. Rotheimer that she could not represent Plaintiff because she is not authorized to practice law and does not have standing to pursue Plaintiff's claims on his behalf. On October 8, 2014, Plaintiff filed the Third Amended Complaint ("TAC"). Despite the Court's clear instruction, the TAC states that it was "prepared by Denise Rotheimer on behalf of her brother, Adam Rotheimer."

The TAC repeats essentially the same claims as those found in the previously dismissed Complaints.[2] In short, Plaintiff alleges improper conduct by Defendants related to the "initiation and continuation of criminal proceedings against Plaintiff, " including causing "material exculpatory evidence to be withheld from the presiding judges and grand jury" associated with Plaintiff's underlying criminal case. (TAC ¶ 36(d)). Plaintiff has asserted the following claims against all Defendants: § 1983 due process claim (Count I); § 1985 civil conspiracy claim (Count II); a purported federal law intentional infliction of emotional distress claim (Count III); a state law negligence claim (Count IV); and a purported federal law negligent infliction of emotional distress claim (Count V).


Rule 12(b)(6) permits a defendant to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the complaint must provide a defendant "with fair notice' of the claim and its basis." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2) and Twombly, 550 U.S. at 555). When ruling on a motion to dismiss, the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in favor of the plaintiff. Tamayo, 526 F.3d at 1081.


Unauthorized Practice of Law

As a preliminary matter, the TAC must be dismissed because Ms. Rotheimer, in preparing the TAC, has engaged in the unauthorized practice of law. The Court has the inherent authority to impose sanctions for practicing law without a license, including striking pleadings. See United States v. Johnson, 327 F.3d 554, 560 (7th Cir. 2003) (federal court has inherent authority to impose sanctions for the unauthorized practice of law); Robinson v. Belom, No. 03 C 1, 2003 WL 21183916, at *5 (N.D. Ill. May 19, 2003) (striking submissions prepared by non-attorney and ordering non-attorney to show cause in writing why he should not be held in contempt of court); see also ...

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