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Fultz v. Horton

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

February 2, 2017

JOSH HORTON, in his individual capacity, and CITY OF AURORA Defendants.


          Robert M. Dow, Jr. United States District Judge

         Plaintiff James Fultz brings this retaliatory prosecution action against Defendants Officer Josh Horton and the City of Aurora. Currently before the Court is Defendants' motion to dismiss [34]. For the reasons set forth below, the Court grants Defendants' motion [34] with prejudice as to the federal claims asserted in Counts I and II, as those counts are time barred, and without prejudice as to the state law claims advanced in Counts III, IV, and V. A final judgment will be entered as to Counts I and II and the case will be closed.

         I. Background

         On July 3, 2014, Plaintiff filed a pro se complaint against Defendants Horton and the City of Aurora. [1.] On February 23, 2016, the Court recruited counsel for Plaintiff. [24.] Plaintiff filed an amended complaint through his counsel on May 12, 2016. [31.]

         In his amended complaint, Plaintiff alleges that on June 10, 2009, Plaintiff and his mother, Beulah Fultz (“Ms. Fultz”), hosted a barbeque in their yard in Aurora, Illinois. [31, at ¶ 7.] Anthony Jackson, a friend of the family, attended the barbeque. [Id. at 9.] Aurora police officers Jay Ellis and Douglas Rashkow were patrolling the area and stopped at the Fultz residence. [See id. at ¶¶ 10-11.] Plaintiff contends that Ellis and Rashkow entered the yard, which surprised and concerned Ms. Fultz. [Id. at ¶¶ 11-12.] When Ms. Fultz asked the officers to leave, one of the officers informed her that Jackson had an outstanding warrant. [Id. at ¶¶ 13- 14.] Ellis and Rashkow called for backup, and Aurora police officers Josh Horton (the Defendant in this case), Ryan Feeney, Andrew Wright, and Nicole Petersen arrived on the scene. [Id. at ¶ 16.] Some of the officers escorted Jackson away from the Fultz home and arrested him. [Id. at ¶ 17.] The rest of the officers remained at the home, without permission of the Fultz family. [Id. at ¶ 18.]

         Plaintiff alleges that Ms. Fultz decided to call a supervisor at the Aurora Police Department to encourage the officers to leave. [Id. at ¶ 19.] Plaintiff contends that Rashkow approached Ms. Fultz and told her that she was under arrest. [Id. at ¶ 20.] According to Plaintiff, when Ms. Fultz asked why, Petersen intervened and told Ms. Fultz to “walk off” and not to argue with Rashkow. [Id. at ¶¶ 21-22.] Plaintiff contends that Ms. Fultz then turned to go into her home, but as she was turning around, Rashkow pushed her into an iron porch railing, hurting her in the process. [Id. at ¶¶ 23-24.] Plaintiff alleges that he approached Rashkow with his hands up to show that he had no weapon and asked Rashkow what was happening. [Id. at ¶ 25.] Rashkow allegedly yelled, “Get out of the way, ” threw Plaintiff on the ground, and pushed his taser into Plaintiff's chest. [Id. at ¶¶ 26-27.] Plaintiff alleges that Rashkow then rolled him over, handcuffed him, and arrested him. [Id. at ¶ 28.]

         Plaintiff further alleges that at this point, Ms. Fultz ran into her home and proceeded to the washroom, but Defendant Horton entered the Fultz home without permission and pushed the door to the washroom open. [Id. at ¶¶ 29-30.] Plaintiff contends that Ms. Fultz was startled and began having chest pains and hyperventilating. [Id. at ¶ 31.] Plaintiff asserts that one of the officers called an ambulance, which took Ms. Fultz to the hospital, where she stayed for many hours. [Id. at ¶¶ 32-33.] Plaintiff asserts that he never touched Defendant Horton and that he did not interact with Defendant Horton on June 10, 2009, the day of the barbeque. [Id. at ¶¶ 34- 35.]

         That same day, Plaintiff was charged with obstructing a peace officer for allegedly attempting to prevent his mother's arrest by Rashkow. [Id. at ¶ 36.] On or about June 18, 2009, Ms. Fultz filed a written complaint with the Aurora Police Department Office of Professional Standards against Defendant Horton and Rashkow for their alleged misconduct at the barbeque. [Id. at ¶ 37.] On or about July 7, 2009, the Office of Professional Standards opened an investigation based on Ms. Fultz's complaint. [Id. at ¶ 38.]

         On or about July 28, 2009-more than six weeks after the barbeque incident-Defendant Horton signed a complaint charging Plaintiff with aggravated battery for allegedly pushing him in the chest on June 10, 2009. [Id. at ¶ 36.] On or about April 5, 2010, a jury trial was held in Kane County on the charges against Plaintiff for obstructing a peace officer and aggravated battery.[1] [Id. at ¶ 40.] At trial, Plaintiff's attorney requested permission from the judge to introduce evidence that Defendant Horton did not sign the aggravated battery complaint until 40 days after the incident and after Ms. Fultz filed a complaint against Defendant Horton and Rashkow. [Id. at ¶¶ 41-42.] The court denied Plaintiff's attorney's request to introduce this information into evidence. [Id. at ¶ 43.] Ellis, Rashkow, Feeney, and Defendant Horton testified at Plaintiff's trial. [Id. at ¶ 44.] Plaintiff alleges that Ellis, Rashkow, Feeney testified that they did not see Plaintiff push Defendant Horton and that the only evidence presented about Plaintiff pushing Defendant Horton was Defendant Horton's own testimony. [Id. at ¶¶ 45-46.] The jury found Plaintiff guilty of both counts, and Plaintiff was sentenced to three years in the Illinois Department of Corrections (“IDOC”). [Id. at ¶¶ 47-48.] Plaintiff served 19 months in the IDOC. [Id. at ¶ 49.]

         On June 11, 2012, after Plaintiff was released from prison, the Illinois Appellate Court reversed and remanded Plaintiff's aggravated battery conviction for a new trial, holding that the trial court made two errors, which cumulatively deprived Plaintiff of a fair trial. [See id. at ¶¶ 50-51; see also People v. Fultz, 971 N.E.2d 596, 598 (Ill.App.Ct. 2012).] According to the Illinois Appellate Court, the trial court erred in not allowing Plaintiff to challenge Defendant Horton's credibility with the issue of bias when the court prevented Plaintiff from cross-examining Defendant Horton about the 40 day delay in signing the aggravated battery complaint and when, if ever, he became aware of Ms. Fultz's complaint. Additionally, the Appellate Court held that the trial court erred in instructing the jury that it could consider Plaintiff's prior conviction only to assess his credibility, over Plaintiff's objection, as this instruction should only have been given at Plaintiff's request. The Appellate Court explained that the trial came down to a credibility contest between Plaintiff and Defendant Horton and that the trial court's erroneous rulings went to the heart of that issue. On October 17, 2013, after remand, the Kane County State's Attorney moved to dismiss Plaintiff's aggravated battery charge via a nolle prosequi, and the court granted the motion. [Id. at ¶ 52.] Plaintiff contends that he “is still involved in court regarding the aggravated battery charged” and that he is attempting to obtain a Certificate of Innocence from the Circuit Court of Kane County.

         Plaintiff filed a five-count amended complaint on May 12, 2016. In Count I, Plaintiff brings a retaliatory prosecution claim against Defendant Horton (reframed in the parties' briefs as a claim of retaliatory inducement to prosecute), alleging that Defendant Horton did not have probable cause to complain of Plaintiff committing an aggravated battery against him, that Ms. Fultz's complaint against Defendant Horton was an exercise of her constitutional right of freedom of speech that caused Horton to harbor animus against the Fultz family, and that Plaintiff would not have been charged with aggravated battery but for Defendant Horton's retaliatory animus against him and his family. In Count II, Plaintiff brings a due process claim against Defendant Horton, alleging that by signing a complaint falsely stating that Plaintiff pushed him on June 10, 2009 and fabricating testimony at Plaintiff's criminal trial, Defendant Horton deprived Plaintiff of his constitutional right to due process. In Count III, Plaintiff brings a state law claim of malicious prosecution against Defendant Horton. In Counts IV and V, Plaintiff brings claims against the City of Aurora, alleging that the City is liable for Defendant Horton's actions under respondeat superior (Count IV) and that the City is responsible for indemnifying Defendant Horton (Count V). Plaintiff seeks compensatory damages in an amount in excess of $75, 000, punitive damages, and attorney's fees and costs. On June 29, 2016, Defendants filed a motion to dismiss [34].

         II. Legal Standard

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

         “A statute of limitations defense, while not normally part of a motion under Rule 12(b)(6), is appropriate where the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.” Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (internal quotation marks omitted). The Court may take judicial notice of matters in public record, including court documents, ...

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