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Calabrese v. Foxx

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

November 17, 2017

KIMBERLY FOXX, Cook County State's Attorney, in her official capacity, LEO SCHMITZ, Illinois State Police Director, in his official capacity, ANDREANA TURANO, GLEN RUNK, MELISSA HOWLETT, JENNIFER DEPASTORS, VICTORIA POKLOP, MICHAEL HEENE, CHARLES AKIN, SCOTT MORETH, and the CITY OF DES PLAINES, Defendants.



         Frank Calabrese brings this suit against four members of the Cook County State's Attorney Office, the City of Des Plaines, five Des Plaines police officers, and the Director of the Illinois State Police, alleging violations of the federal and state constitutions in connection with his arrest, prosecution, and conviction for violating an order of protection. Doc. 156. After Calabrese twice amended his complaint, Docs. 5, 37, the court stayed the suit under the Younger doctrine pending resolution of his state criminal trial. Doc. 62. While the suit was stayed, Calabrese sought and was granted leave to file a third amended complaint. Docs. 81, 83. The court lifted the stay after Calabrese was convicted, and granted him leave to file a fourth amended complaint. Docs. 147, 156.

         The State's Attorney Defendants move under Federal Rule of Civil Procedure 12(b)(6) to dismiss all claims against them, the Des Plaines Defendants move under Rule 12(b)(6) to dismiss some of the claims against them and also under Rule 12(f) to strike Calabrese's request for punitive damages against the City, and the Director moves under Rules 12(b)(1) and 12(b)(6) to dismiss the claim against him. Docs. 152, 154, 179. The State's Attorney Defendants' motion is granted, though in part on standing grounds, the Director's motion is denied, and the Des Plaines Defendants' motion is granted in part and denied in part. The case will go forward on Count IV (brought under the Second Amendment) against the Director, and on Counts V and VII (brought under the Fourth Amendment) against the Des Plaines Defendants.


         In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Calabrese's brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The facts are set forth as favorably to Calabrese as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).

         Before getting to Calabrese's allegations, the court summarizes the state court order of protection proceedings as described by the Appellate Court of Illinois in Paul v. Calabrese, 2014 IL App (1st) 130233-U ( Ill. App. Aug. 20, 2014) (reported at 2014 WL 4109908, reproduced at Doc. 180-1). See Ennenga v. Starns, 677 F.3d 766, 773-74 (7th Cir. 2012) (holding that public court documents are judicially noticeable); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (same, and collecting cases). Mary Paul, Calabrese's birth mother, gave him up for adoption in 1987. Paul, 2014 IL App (1st) 130233-U, at ¶ 6. Calabrese located Paul in September 2010 and attempted to establish a relationship with her. Ibid. Paul initially was receptive, but she did not want as close a relationship as Calabrese did. Id. at ¶ 7.

         In July 2011, after Calabrese persisted in contacting her, Paul sought an order of protection. Ibid. Her petition alleged that Calabrese was verbally abusive, had contacted her hundreds of times via email, text message, and phone, and had begun to email her employees and clients, accusing her of abandoning him at birth. Id. at ¶¶ 7-8. The Circuit Court of Cook County entered an emergency order of protection on July 29, 2011. Id. at ¶ 9. Calabrese agreed to a two-year order of protection on September 28, 2011. Id. at ¶ 10.

         Over a year later, in late 2012, Calabrese filed a series of pro se motions to vacate the order of protection, which the court denied. Id. at ¶¶ 11, 15; see also Doc. 156 at ¶¶ 27-28. Calabrese appealed in January 2013. Paul, 2014 IL App (1st) 130233-U, at ¶ 16; see also Doc. 156 at ¶ 29. In March and April 2013, Calabrese continued to file motions in the trial court as it prepared the appellate record. Paul, 2014 IL App (1st) 130233-U, at ¶¶ 18-20. In August 2014, the Appellate Court of Illinois upheld the order of protection, which had been extended beyond its original two-year term. Id. at ¶ 32.

         Calabrese's allegations in this suit are as follows. On May 9, 2013, while his appeal was pending, three of our defendants-Des Plaines police officers Victoria Poklop and Scott Moreth, and Cook County Assistant State's Attorney Andreana Turano-met in the Cook County Courthouse in Skokie and conspired to arrest Calabrese and prosecute him for stalking in retaliation for his contesting the order of protection. Doc. 156 at ¶¶ 11-12, 32. The next day, three other defendants-Des Plaines police officers Michael Heene, Charles Akin, and Jennifer DePastors-joined the conspiracy. Id. at ¶ 33. On May 13, Heene and DePastors arrested Calabrese and placed him in jail. Id. at ¶ 34.

         While Calabrese was jailed, DePastors met with Paul and yet another defendant, Cook County Assistant State's Attorney Glen Runk, and further conspired to charge Calabrese with stalking for “filing numerous motions” in the protective order case. Id. at ¶ 36. Also during that time, Heene, DePastors, Poklop, and Akin listened in on Calabrese's phone call with his adoptive mother and obtained the password to his email account. Id. at ¶ 40. The officers gave the password to Paul and, on May 28, directed her to access Calabrese's email, download private documents, and forward the documents to them. Ibid.

         A bond hearing in the state criminal case was held on June 5, 2013. Paul, 2014 IL App (1st) 130233-U, ¶ 21. The prosecutor maintained that Calabrese had filed his motions in order to “forc[e] Paul to appear in court as a way to get around the order of protection.” Ibid. According to the prosecutor, the filings “include[ed] extra documents that had nothing to do with the issues on appeal but that contained personal information about Paul and her marriage, ” as well as “pictures of Paul's dead relatives and their tombstones.” Ibid. The prosecutor also asserted that Calabrese had sent Paul's attorney “thousands of pages of emails” and “two bound books of over 300 pages of filings and motions, including phone records, e-mails, ancestral information on Paul's family and other personal documents” as part of a “deluge and bombardment of information and harassment.” Ibid. (internal quotation marks omitted).

         In July 2013, Heene gave grand jury testimony that falsely accused Calabrese of attempting to extort money from Paul and of filing court papers and sending materials to Paul's attorney that were unrelated to the order of protection. Doc. 156 at ¶ 43. The grand jury indicted Calabrese on one count each of aggravated stalking, stalking, and cyberstalking. Id. at ¶ 44.

         While Calabrese was awaiting trial on the criminal charges, another defendant, Cook County Assistant State's Attorney Melissa Howlett, who was assigned to prosecute the criminal case, repeatedly lied to the court in an effort to revoke Calabrese's bond. On September 20, 2013, Howlett maintained in court that Calabrese was emailing Paul's clients “with threatening information, ” that he had sent a letter to a Cook County Jail inmate with personal information about Paul and her attorneys, and that he had defied a court order by continuing to file pro se motions contesting the protective order. Id. at ¶¶ 49-52. On December 4, 2013, Howlett told the court that Calabrese was violating his bond conditions by living at his apartment rather than at his adoptive parents' house. Id. at ¶ 54.

         In June 2014, after a heated email exchange, Calabrese sent Howlett, her supervisors, and her coworkers emails accusing Howlett of lying about the conditions of his bond. Id. at ¶ 55. On June 6, 2014, Howlett arranged for a bond revocation hearing as retaliation for Calabrese's accusation that she had lied about his bond. Id. at ¶ 56. After the hearing, Calabrese was placed on electronic monitoring for over two months. Ibid.

         In May and June 2014, Calabrese filed requests for public records under the Illinois Freedom of Information Act, attempting to uncover the basis for Howlett's accusations against him. Id. at ¶ 57. In December, Calabrese sued the Cook County State's Attorney Office in state court for refusing to disclose any records. Ibid.. Howlett then arranged for another bond revocation hearing, which again resulted in Calabrese being placed on electronic monitoring for over two months. Id. at ¶ 58.

         At some point, the stalking and cyberstalking charges were dismissed in the criminal case. Id. at ¶ 58. On August 17, 2016, the state court acquitted Calabrese of the remaining charge, aggravated stalking, but convicted him of an uncharged misdemeanor count of violating the order of protection; the conviction was based on Calabrese's contacting Paul's attorneys during the state court order of protection proceedings. Id. at ΒΆ 46. ...

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