United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
matter is before the court on Defendants' motion to
dismiss. For the reasons stated below, the motion to dismiss
is granted in part, and the remaining state law claims are
dismissed without prejudice.
December 2010, Plaintiff Edward Tobey (Tobey) pled guilty to
child pornography charges in Florida state court. Tobey was
sentenced to four years of sex offender probation and eight
months imprisonment. In 2011, Tobey pled guilty to other
charges in Florida relating to possession of other child
pornography at his Florida home. Tobey was given a sentence
of eight months imprisonment, with four months considered
served, and was placed on sex offender probation until 2032.
After release from prison, Tobey returned to Illinois and in
January 2012, he pled guilty to charges relating to other
child pornography at his Illinois home. Tobey was sentenced
to two and a half years probation. Tobey filed an application
pursuant to an Interstate Compact Agreement (IC Agreement) to
have his Florida probationary monitoring transferred to
Illinois and such application was granted.
Brenda L. Chibucos (Chibucos) became Tobey's probation
officer. In early 2013, Chibucos allegedly began asking Tobey
to sign a behavioral agreement (Behavioral Agreement). Tobey
contends that he did not want to sign the Behavioral
Agreement, because among other things, it required him to
acknowledge that he had repeatedly failed the sexual history
polygraph relating to minor children. (Compl. Par. 36). Tobey
allegedly indicated that he would not sign the Behavioral
Agreement until he had spoken with his legal counsel.
March 2013, Tobey was allegedly discovered accessing the
internet on a cell phone in violation of the terms of his
probation. Tobey was allegedly ordered to remove the cell
phone internet service and failed to do so. Chibucos then
filed a memorandum in Tobey's Illinois criminal case
indicating that Tobey's sex offender treatment had been
suspended as a result of his failure to cooperate with
treatment. Chibucos also allegedly requested that a petition
to revoke (PTR) Tobey's probation be filed by the Lake
County State's Attorney's Office based on Tobey's
use of the internet and his discharge from sex offender
treatment. A PTR was allegedly filed by Defendant Assistant
Lake County State's Attorney Mary Stanton (Stanton), but
Tobey was allegedly arrested and transported to Florida
before the date of the PTR hearing in Illinois.
claims that while in detention in Florida he was forced to
sign the Behavioral Agreement. According to Tobey, the judge
in his Florida case then determined that the court in his
Illinois case should have the first opportunity to address
probation violations and ordered Tobey returned to Illinois.
Tobey was then allegedly returned to Illinois.
further alleges that after he returned to Illinois and was
released, Chibucos harassed him by restricting his visitation
privileges and Stanton filed another PTR. Tobey includes in
his complaint illegal arrest and detention due process claims
brought pursuant to 42 U.S.C. § 1983 (Section 1983)
(Count I), Section 1983 due process claims based upon alleged
threats (Count II), Section 1983 supervisory liability claims
(Count III), state law malicious prosecution claims (Count
IV), intentional infliction of emotional distress claims
(Count V), and state law conspiracy claims (Count VI).
Defendants now move to dismiss all claims.
ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court
must draw all reasonable inferences that favor the plaintiff,
construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all
well-pleaded facts and allegations in the complaint.
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d
609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the
complaint that “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
‘speculative level'” and “if they do
not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496
F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d
at 622 (stating that “[t]o survive a motion to dismiss,
the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face, ” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009))(internal quotations omitted).
argue that Tobey has failed to allege sufficient facts to
state any valid Section 1983 claim and that certain
Defendants are protected by immunity.
Section 1983 Illegal Arrest and Detention Claims (Count
argue that the Section 1983 illegal arrest and detention
claims are untimely and that Tobey has failed to ...