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Gonzales v. Madigan

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

September 11, 2017

JASON GONZALES, Plaintiff,
v.
MICHAEL J. MADIGAN, FRIENDS OF MICHAEL J. MADIGAN, 13TH WARD DEMOCRATIC ORGANIZATION, PRISONER REVIEW BOARD, SHAW DECREMER, SILVANA TABARES, RAY HANANIA, JOE BARBOSA, and GRASIELA RODRIGUEZ, Defendants.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, District Judge

         In 2016, Jason Gonzales ran against Michael J. Madigan and two other candidates in the Democratic primary for the District 22 seat in the Illinois House Representatives. Madigan won the primary, which was tantamount to winning the general election. Gonzales then filed this action under 42 U.S.C. § 1983 and Illinois law against Madigan, the other two candidates, and some of Madigan's associates. In general terms, Gonzales alleges that the defendants registered two sham candidates with Hispanic last names to split up the Hispanic vote and disseminated false information about him during the election to confuse Hispanic voters, all to ensure that Madigan won the primary.

         In March 2017, the Court granted motions by defendants to dismiss the complaint and granted Gonzales leave to amend his claims against certain defendants. See Gonzales v. Madigan, No. 16 C 7915, 2017 WL 977007 (N.D. Ill. Mar. 14, 2017). Gonzales then filed an amended complaint, and the Court again granted defendants' motion to dismiss, this time with prejudice, and entered judgment against him. See Gonzales v. Madigan, No. 16 C 7915, 2017 WL 2653079 (N.D. Ill. June 20, 2017). Gonzales has moved to alter the judgment pursuant to Federal Rule of Civil Procedure 59(e). He also requests leave to amend his complaint under Rule 15(a). For the reasons stated below, the Court vacates the judgment and grants Gonzales's request to amend his complaint. The Court also addresses the remainder of defendants' original motions to dismiss and dismisses some of Gonzales's claims based on certain of those arguments.

         Background

         The Court assumes familiarity with the allegations in this case and will summarize them only briefly here. A more detailed explanation of Gonzales's allegations can be found in the Court's original dismissal with leave to amend dated March 14, 2017. See generally Gonzales, 2017 WL 977007. The Court takes the following facts from Gonzales's amended complaint. See dkt. no. 45.

         When Gonzales was younger, he was convicted of felony and misdemeanor charges relating to his unlawful use of credit cards at shopping malls. He served time in jail and on probation. In January 2015, Gonzales received a pardon from then-Governor Pat Quinn. By October 2015, the state either expunged or sealed all of Gonzales's criminal case files.

         In 2016, Gonzales ran in the Democratic primary for the Illinois House District 22 seat against Madigan, the incumbent, and two other candidates. Gonzales alleges that Madigan and the others interfered with the election in two ways. First, Gonzales alleges that Madigan engaged in a campaign to place sham candidates on the ballot. Madigan allegedly instructed his aide, Shaw Decremer, to wait at the office of the Illinois State Board of Elections on the date of the deadline for candidates to file nominating petitions to see if other candidates would file to run for the District 22 seat. Immediately after he observed Gonzales file a nominating petition, Decremer filed nominating petitions for two other candidates: Joe Barbosa and Grasiela Rodriguez. Gonzales alleges that Barbosa and Rodriguez never intended to run but agreed to let Madigan use their names, the purpose being to split the Hispanic vote so that Gonzales would lose the primary in the predominantly Hispanic district. Gonzales alleges that Decremer acted in concert with his co-defendants in order to carry out this scheme. Gonzales alleges that two of Madigan's political action committees-Friends of Michael J. Madigan (Friends) and 13th Ward Democratic Organization (13th Ward Organization)-as well as Silvana Tabares, House Representative for District 21 and a close friend of Madigan's, assisted in these efforts.

         Second, Gonzales alleges that, during the campaign, Madigan and others acting in concert with him used television ads and in-person canvassing to tell voters that Gonzales was a convicted felon and to inaccurately claim that he was therefore ineligible to hold office. He also alleges that the Prisoner Review Board (PRB) improperly disclosed his criminal records to a reporter for the Daily Herald. Gonzales alleges that Madigan then used his own campaign funds as well as the funds and employees of Friends and the 13th Ward Organization to disseminate this information. Gonzales alleges that Tabares assisted Madigan by hiring Hispanic individuals to stand near polling places and tell voters in English and Spanish not to vote for Gonzales. He also alleges that Ray Hanania, a reporter, published similar statements in his columns, blog, and other postings.

         In August 2016, Gonzales filed his initial complaint in this case against Madigan, Friends, the 13th Ward Organization, the PRB, Decremer, Hanania, Barbosa, and Rodriguez, alleging they violated his rights under 42 U.S.C. § 1983 and state law. Gonzales claimed that informing voters that he was a convicted felon, after he had received a full gubernatorial pardon, violated his right under the First Amendment to petition the government for redress of grievances. Gonzales also claimed that falsely informing voters that he was ineligible to become an elected official due to his past convictions violated his right to equal protection under the Fourteenth Amendment. Gonzales brought these claims against Madigan (counts 1 and 2), Friends (counts 7 and 8), the 13th Ward Organization (counts 13 and 14), and Tabares (counts 25 and 26). Gonzales also brought a similar First Amendment claim against the PRB, alleging that its disclosure of his criminal record to a reporter violated his right to petition the government for redress of grievances (count 19).

         Gonzales next claimed that defendants' registration of sham candidates violated his right to equal protection under the Fourteenth Amendment. Gonzales further claimed that this same conduct abridged his right to vote on account of his race, in violation of the Fifteenth Amendment and the federal Voting Rights Act. He brought these claims against Madigan (counts 3 and 4), Friends (counts 9 and 10), the 13th Ward Organization (counts 15 and 16), Decremer (counts 23 and 24), Tabares (counts 27 and 28), Barbosa (counts 33 and 34), and Rodriguez (counts 35 and 36). Finally, Gonzales claimed that all nine of the defendants, including Hanania, engaged in a conspiracy to deprive him of his constitutional rights (count 37).

         Gonzales also asserted state law claims. He claimed that informing voters that he was a convicted felon constitutes defamation per se under Illinois law. Gonzales claimed that the same conduct also placed him in a false light in violation of Illinois law. He asserted these claims against Madigan (counts 5 and 6), Friends (counts 11 and 12), the 13th Ward Organization (counts 17 and 18), the PRB (counts 20 and 21), Tabares (counts 29 and 30), and Hanania (counts 31 and 32). Gonzales also claimed that the PRB's disclosure of his criminal record to Lester constitutes unlawful disclosure in violation of 730 ILCS 5/3-5-1 (count 22). Gonzales also claimed that all nine of the defendants engaged in a conspiracy to prevent voters from supporting him in violation of 10 ILCS 5/29-18 (count 38) and deprived him of his constitutional rights in violation of 10 ILCS 5/29-17 (count 39).

         In November 2016, the PRB filed a motion to dismiss the federal claims against the agency. The PRB argued that it is not a "person" suable under section 1983 and that Gonzales failed to allege the deprivation of any constitutional right. In response, Gonzales agreed that the agency itself is immune from suit and requested leave to amend his complaint to name individual employees of the PRB as defendants. The Court found that Gonzales failed to allege the deprivation of any constitutional right based on the PRB's actions and therefore denied his request to amend. The Court dismissed with prejudice Gonzales's federal claims against the agency but did not separately address the three state law claims. The remaining defendants also filed a joint motion to dismiss the federal claims against them, arguing among other things that Gonzales failed to allege that defendants acted under color of state law. The Court agreed and dismissed on this basis all of his federal claims against those defendants, including the claim of conspiracy. The Court did not address defendants' remaining arguments in support of dismissal.

         The Court granted Gonzales leave to amend his claims against all defendants other than the PRB, and Gonzales filed an amended complaint on March 29, 2017. He asserted the same claims as in the original complaint, with additional statements regarding the alleged state action. Defendants-with the exception of the PRB-again moved to dismiss on the ground that Gonzales failed to allege that defendants acted under color of state law. Defendants also incorporated by reference the arguments that the Court did not consider from their motion to dismiss the original complaint. The Court determined that Gonzales still had failed to allege that defendants had acted under color of state law and dismissed all federal claims in the complaint, this time with prejudice. The Court also declined to exercise supplemental jurisdiction over all of Gonzales's state law claims-including those against the PRB-and dismissed those claims without prejudice. The Court entered judgment on June 20, 2017.

         Gonzales has moved to alter the judgment pursuant to Federal Rule of Civil Procedure 59(e), based on his contention that the Court construed his complaint too narrowly and overlooked precedent when determining whether defendants acted under color of state law. Gonzales also requests leave to amend his complaint to add a claim under 42 U.S.C. § 1985(3) against all defendants except the PRB.

         Discussion

         A. Motion to alter judgment

         Gonzales asks the Court to vacate the dismissal of his federal claims based on the color-of-state-law issue and vacate the dismissal of his state claims for lack of supplemental jurisdiction. Pl.'s Mot. to Alter J. Under Rule 59(e) and For Leave to Amend Compl. Under Rule 15(a) (Pl.'s Mot. to Alter J.) at 1. Gonzales argues that the Court read his complaint too narrowly and failed to apply precedent that supported his claims.

         1. Forfeiture

         Defendants argue that Gonzales has forfeited the arguments in his motion to alter judgment because he failed to raise them before the Court's entry of judgment. They correctly note that Rule 59(e) typically does not permit a party "to advance after judgment a non-jurisdictional argument that could have been presented prior to judgment." Lardas v. Grcic, 847 F.3d 561, 566 (7th Cir. 2017). But district courts have discretion to consider new arguments if they so choose. Id. Further, Gonzales's motion to alter the judgment concerns arguments he has maintained since defendants' very first motion to dismiss. He has not forfeited the arguments.

         2. Color of state law

         Gonzales argues that in determining that he had not alleged that defendants acted under color of state law, the Court overlooked allegations in his amended complaint or read the amended complaint too narrowly and that it failed to apply applicable precedent. "An action is taken under color of state law if it involves a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 515 (7th Cir. 2007) (internal quotation marks omitted).

         a. Madigan

         In its ruling dated June 20, 2017, the Court held that Gonzales failed to allege that Madigan acted under color of state law because he "failed to allege that he used any power uniquely granted to him due to his positions as Speaker of the Illinois House and House Representative." Gonzales v. Madigan, 2017 WL 2653079, at *4. This determination was based on the principle that not every action by a state official or employee is deemed to occur under color of state law. See, e.g., Sims, 506 F.3d at 515.

         After consideration of Gonzales's motion, the Court concludes that it read his amended complaint too narrowly and that Gonzales has in fact adequately alleged that Madigan's conduct in this case involved power and authority he had by virtue of his official positions. Gonzales alleges that Madigan used funds he controls by virtue of his governmental offices-including the accounts of Friends, the Democratic Majority Fund, the 13th Ward Organization, and the Democratic Party of Illinois-to inform voters that Gonzales is a convicted felon. Am. Compl. ¶¶ 11, 103. Perhaps more importantly, he also alleges that Madigan used resources available to him due to his position as a state representative and Speaker of the Illinois House-including political favors, control of campaign funds, and precinct captains-to discredit Gonzales. Id. ¶ 46. Gonzales further alleges that Madigan's official positions give him influence "over doling out jobs, favors and services." Id. ¶ 25. Significantly, he alleges that Madigan used this influence to get Rodriguez a job in the office of the Illinois Attorney General in exchange for her service as a sham candidate-an allegation the Court overlooked in dismissing the amended complaint. Id. ¶ 69. Gonzales also alleges that both Barbosa and Rodriguez have volunteered for Madigan's campaigns and/or used organizations associated with Madigan to obtain employment. Id. ¶¶ 59, 66. In sum, Gonzales has adequately alleged that Madigan used resources available to him by virtue of his official positions and therefore that he acted under color of state law.

         Gonzales also points to precedent from the Seventh Circuit that supports this conclusion. In Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), the court considered a suit in which Ronald Smith, the losing candidate in the Democratic primary for State Senator of Illinois District 12, alleged that Robert Cherry, his opponent, was a sham candidate. Id. at 1099-1100. After Smith lost the primary to Cherry, Cherry withdrew his candidacy, and the 12th Senatorial Committee (made up of five Democratic Ward Committeemen) appointed as the Democratic nominee Ben Palmer, who had been unable to run in the primary because he was no longer a resident of District 12. Smith filed suit against Cherry, Palmer, and the Committeemen under 42 U.S.C. § 1983, alleging that they had conspired to use Cherry as a sham candidate, knowing that he never intended to run in the general election, in order to make Palmer the nominee. Id. at 1100. The Seventh Circuit concluded that Smith had adequately alleged a claim under section 1983. Id. at 1102. Although the court did not expressly consider whether Smith had alleged that defendants acted under color of state law, it repeatedly referred to defendants' conduct as "official treatment." See id. at 1103. Thus Cherry reflects that a state representative's use of his leverage to manipulate an ...


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