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Tobey v. Chibucos

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

November 1, 2016

EDWARD TOBEY, Plaintiff,
v.
BRENDA L. CHIBUCOS, et al., Defendants.

          MEMORANDUM OPINION

          SAMUEL DER-YEGHIAYAN, District Judge

         This 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.

         BACKGROUND

         In 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.

         Defendant 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.

         In 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.

         Tobey 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.

         Tobey 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.

         LEGAL STANDARD

         In 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).

         DISCUSSION

         Defendants argue that Tobey has failed to allege sufficient facts to state any valid Section 1983 claim and that certain Defendants are protected by immunity.

         I. Section 1983 Illegal Arrest and Detention Claims (Count I)

         Defendants argue that the Section 1983 illegal arrest and detention claims are untimely and that Tobey has failed to ...


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