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Cui v. Elmhurst Police Department

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

February 21, 2017

HANG CUI and RUIYING FEI, Plaintiffs,
v.
ELMHURST POLICE DEPARTMENT, et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Marvin E. Aspen United States District Judge.

         Presently 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 further proceedings.

         FACTUAL BACKGROUND

         At the 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 order.” (Id.)

         On June 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.)

         On 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.)

         Cui 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.)

         On 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, [1] 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.[2] (Dkt. Nos. 131, 136.)

         LEGAL STANDARD

         Defendants' 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.

         ANALYSIS

         I. Kubycheck Defendants

         a. False Arrest (Count II)

         Lynn 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.

         b. Conspiracy to Violate ...


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