United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Aspen United States District Judge.
before us is Defendants City of Elmhurst, Officer Art
Ciszewski, Commander Robert Nichols' (“Elmhurst
Defendants”) motion to dismiss Counts I, II, III, VIII,
IX, and X of Plaintiffs' Fourth Amended Complaint. (Dkt.
No. 131.) Also before us is Defendants Lynn Kubycheck and Jon
Kubycheck's (“Kubycheck Defendants”) motion
to dismiss Counts I-VII of Plaintiff's Fourth Amended
Complaint. (Dkt. No. 136.) For the reasons stated below, we
grant Defendants' motions to dismiss Counts II, III, IX,
and X. Only state-law claims remain, and we decline to
exercise supplemental jurisdiction over the remaining claims.
The case is remanded to the Circuit Court of Cook County for
motion to dismiss stage, we accept all well-pleaded factual
allegations as true, and draw all inferences in the
plaintiffs' favor. Cole v. Milwaukee Area Tech. Coll.
Dist., 634 F.3d 901, 903 (7th Cir. 2011). In February
2012, Plaintiffs lived in a bank-owned home located at 506
East Park Avenue, in Elmhurst, IL. (Fourth Am. Compl. (Dkt.
No. 119) ¶ 7.) Plaintiffs had a “month to month
short lease.” (Id.) On February 17, 2012, Lynn
Kubycheck (“Lynn”) bought the home and served
Plaintiffs with notice that their lease was to be terminated.
(Id.) Plaintiffs asked Lynn to lease the home to
them on a short term basis while they sought a new home.
(Id.) She “refused and filed an eviction
case” on June 7, 2012. (Id. ¶ 8.) Cui and
Lynn “reached a settlement through their attorneys. . .
in eviction court, ” which allowed Plaintiffs to remain
in the home until June 26, 2012. (Id.) The agreement
further provided Plaintiffs would pay Lynn $1, 853, and Lynn
would “sign the paper to vacate the eviction
26, 2012, Cui gave his attorney a check for $1, 853 to give
to Lynn after she delivered the signed documents vacating the
eviction order. (Id.) Plaintiffs allege Cui
intentionally left insufficient funds in the account and
planned to place sufficient funds in the account only after
the signed documents were delivered. (Id.) Lynn
received the check on June 26, 2012, but she did not deliver
the signed documents. (Id. ¶¶ 11-12.)
Plaintiffs further allege that, on June 27, 2012, Lynn and
her son, Jon Kubycheck, “broke into the house through
the back door, ” noticed that appliances were missing,
and called the police to report the appliances stolen.
(Id. ¶ 10.) The police evicted Plaintiffs and
their daughter on that same day. (Id.)
January 9, 2013, Lynn filed a police report, “falsely
telling the police that ‘on 6/26/12 she received a
check from Cui's business account for the last
month's rent in the amount of $1853.00, '” but
that there were insufficient funds in the account, and
allegedly claimed that Cui had “intended to defraud her
with a ‘bad rent check.'” (Id.
¶¶ 11-12.) On March 12, 2013, Officers Art
Ciszewski and Steven Mandat “arrested Mr. Cui at his
home, in the presence of his spouse, . . . without probable
cause, for misdemeanor Attempted Deceptive Practice”
under Illinois law. (Id. ¶ 14.) Plaintiffs
allege “Defendant Commander Nichols approved the
arrest, and on information and belief, the criminal
prosecution” that followed. (Id.) Plaintiffs
further allege that the police did not thoroughly investigate
the dispute before arresting Cui, and assert Lynn lied to the
police about the nature of their dispute. (Id.) On
May 2, 2014, the State voluntarily dismissed all charges
against Cui. (Id. ¶ 15.)
filed a pro se complaint against the City of Elmhurst Police
Department, Lynn Kubycheck, and Jon Kubycheck in the Circuit
Court of Cook County, Illinois on September 24, 2014. (Dkt.
No. 1 ¶ 2.) On October 23, 2014, the Elmhurst Police
Department removed the action to federal court pursuant to 28
U.S.C. §§ 1441, 1443. Cui filed his first amended
pro se complaint on December 31, 2014. (Dkt. No. 22.) We
granted the Elmhurst Police Department's motion to
dismiss all counts against it on May 5, 2015, but granted Cui
leave to file an amended complaint to pursue a state-law
malicious prosecution claim against the City of Elmhurst.
(Dkt. No. 27.) Cui filed a second amended pro se complaint on
June 12, 2015, naming the City of Elmhurst, Officer Steven
Mandat, Lynn Kubycheck, and Jon Kubycheck as defendants.
(Dkt. No. 31.)
September 17, 2015, we again dismissed all counts against the
City of Elmhurst, all counts against Officer Mandat except
for Cui's racial discrimination claim,  and Cui's
state-law defamation and conspiracy claims against the
Kubychecks. (Dkt. No. 55.) Cui and Ruiying Fei, now
represented by counsel, filed a third amended complaint on
May 16, 2016, which was not served on the Defendants. (Dkt.
No. 104.) Finally, on October 11, 2016, Plaintiffs filed the
operative, Fourth Amended Complaint, naming as defendants the
City of Elmhurst, Officer Art Ciszewski, Commander Robert
Nichols, and the Kubychecks. The Fourth Amended Complaint
asserts federal claims under 42 U.S.C §§ 1983 and
1985, along with Illinois state law claims for malicious
prosecution, trespass, invasion of privacy, negligent
infliction of emotional distress, intentional infliction of
emotional distress, and indemnification. The Elmhurst
Defendants moved to dismiss all counts against them on
November 8, 2016, and the Kubychecks moved to dismiss all
counts against them on November 11, 2016. (Dkt. Nos. 131,
motions to dismiss for failure to state a claim upon which
relief may be granted are governed by Rule 12(b)(6) of the
Federal Rules of Civil Procedure. “The purpose of the
motion to dismiss is to test the sufficiency of the
complaint, not decide the merits.” Gibson v. City
of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (internal
quotation marks omitted) (quoting Triad Assocs., Inc. v.
Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)).
Dismissal pursuant to Rule 12(b)(6) is proper only if a
complaint lacks enough facts “to state a claim [for]
relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50 (2009)
(internal quotation marks omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
1974 (2007)); accord. Killingsworth v. HSBC Bank Nev.,
N.A., 507 F.3d 614, 618-19 (7th Cir. 2007). The
plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft, 556 U.S. at 678, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127
S.Ct. at 1964-65). That is, while the plaintiff need not
plead “detailed factual allegations, ” the
complaint must allege facts sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65.
False Arrest (Count II)
Kubycheck first argues Plaintiffs' § 1983 false
arrest claim (Count II) against her must be dismissed because
she is a private citizen, and thus has no power to make an
arrest. (Dkt. No. 136 at 4.) “A private citizen may not
be liable under § 1983 unless the citizen becomes a
public officer pro tem or conspires with a public
employee to deprive a person of his constitutional
rights.” Wilson v. Price, 624 F.3d 389, 394
(7th Cir. 2010) (citing Proffitt v. Ridgway, 279
F.3d 503, 507 (7th Cir. 2002)). Plaintiffs do not claim, and
allege no facts to suggest, Lynn ever acted as a public
officer. Further, Plaintiffs' claim does not sufficiently
allege Lynn conspired with a public employee to deprive Cui
of his Fourth Amendment rights. Rather, Plaintiffs'
complaint merely alleges Lynn's actions “caused the
arrest” of Cui. (Compl. ¶ 27.) More specifically,
Plaintiffs allege Lynn “knowingly filed a false police
report” stating that she had received a bad rent check
from Cui, even though she “knew there was no probable
cause to believe that Mr. Cui intended to defraud her with a
‘bad rent check' because it was not a ‘rent
check.'” (Id. ¶ 11-12.) Those
allegations are insufficient to support an inference that
Lynn conspired with a public employee to deprive Cui of his
Fourth Amendment rights by causing his false arrest.
Accordingly, we grant Lynn's motion to dismiss Count II
of Plaintiffs' complaint.
Conspiracy to Violate ...