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Alexenko v. Hoffman

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

March 27, 2018

MICHAEL HOFFMAN, individually and in his capacity as a police officer for the City of Naperville, Illinois, and the CITY OF NAPERVILLE, an Illinois municipality, Defendants.



         Defendant Michael Hoffman, a Naperville police social worker, intervened in a dispute involving Plaintiff Peter Alexenko and the mother of Alexenko's child, allegedly facilitating the removal of the minor child from Alexenko's residence and instructing other Naperville police officers to disregard an order of protection Alexenko obtained, among other things. Thereafter, Alexenko filed this suit against Hoffman and the City of Naperville (the “City”). The Court previously dismissed Alexenko's first amended complaint without prejudice. In his second amended complaint, Alexenko brings federal claims against Hoffman and the City for violations of substantive due process, the right to familial relations, and equal protection, and a state law claim for intentional infliction of emotional distress (“IIED”). He also seeks indemnification from the City. Hoffman and the City have filed a motion to dismiss the second amended complaint. The Court again dismisses Alexenko's claims based on the right to familial relations because he has not sufficiently alleged a violation of that right, this time with prejudice. But the Court allows Alexenko to proceed on his substantive due process claim for deprivation of personal property against Hoffman, though not against the City, where Alexenko sufficiently pleads Hoffman's personal involvement in that deprivation. The Court also allows the equal protection claim to proceed, finding the City waived its arguments for dismissal by raising them in an undeveloped footnote. Similarly, Alexenko's failure to respond to Hoffman and the City's arguments for dismissal of the IIED claim leads to the dismissal of that claim with prejudice.


         Alexenko and Genevieve Hines lived together in Naperville, Illinois with their minor child, A.A. On October 10, 2015, Alexenko and Hines got into a dispute in A.A.'s presence, causing Alexenko to call the Naperville police. Hoffman, a police social worker and sworn police officer, was among the Naperville police officers who responded to Alexenko's call. Alexenko related to the police that he feared Hines might harm herself or A.A. But, over Alexenko's objection, the Naperville police facilitated Hines' removal of A.A. from the residence. Hoffman used Naperville funds to place Hines and A.A. in a hotel or similar accommodations in a program typically serving victims of domestic violence. Hines, however, did not qualify for the program because no evidence of domestic violence or abuse existed at that time. Shortly thereafter, Hoffman, who is more than twice Hines' age, began a sexual relationship with Hines.

         Between October 10 and October 19, Alexenko had only limited contact with Hines by cell phone, and Hines did not allow Alexenko to have contact with A.A. Hines also did not disclose her or A.A.'s location. Alexenko asked Hines to return A.A. to their residence and allow Alexenko to contact A.A., but Hines stated that she did not have to do so and that Hoffman had told her this was the case. Hines threatened to take A.A. from Illinois and that Alexenko may never see A.A. again. When Alexenko indicated that taking A.A. would be illegal, Hines responded that Naperville police, including Hoffman, Sergeant Brad Marsh, and Detective John Reed had told her she could do what she wanted.

         Having heard this, Alexenko went to the Naperville police station on October 19 to report that Hines took A.A. from their house on October 10, that he had not been able to contact A.A. since, and that Hines had threatened to take A.A. from Illinois and keep Alexenko from seeing his child again. The front desk officer told Alexenko that Hines was in contact with Hoffman, that Hines and A.A. were “O.K., ” and that he could not provide any additional information to Alexenko. Doc. 37 ¶ 36. Alexenko asked to make a formal police report, but the desk officer did not allow him to do so and told Alexenko that only Hoffman could speak with him regarding the matter. Alexenko left Hoffman several messages, but Hoffman did not call him back.

         On October 20, Alexenko obtained an emergency order of protection against Hines from the DuPage County Circuit Court, which provided that Hines was to stay away from him and return A.A. to his custody. Alexenko then returned to the Naperville police station and requested that the order of protection be given to Hoffman and that he be put in contact with Hoffman to determine A.A.'s location. The desk officers refused to accept the order of protection or call Hoffman to the desk. After he could not reach Hoffman by phone, Alexenko called and spoke with Naperville's police chief, Robert Marshall, who arranged a meeting between Alexenko and Hoffman for October 21 at the Naperville police department. At that meeting, Alexenko gave Hoffman and his supervisor, Sergeant Brad Marsh, the order of protection. Hoffman and Marsh questioned the order of protection's authenticity and legitimacy. Marsh also threatened that, if Alexenko did not back down from his attempts to have the order enforced and be reunited with A.A., Alexenko may be arrested. Specifically, Marsh implied that, in contrast to Alexenko's prior reports of having had his car vandalized, the police would accuse Alexenko of having vandalized his own car and of making a false report. In the end, Hoffman and Marsh did not accept the emergency order of protection, leaving Alexenko feeling intimidated and emotionally traumatized by the meeting.

         After the meeting, Alexenko again spoke with Marshall, relaying what had occurred during the meeting. Marshall put Alexenko in touch with Naperville deputy chief Brian Cunningham, telling Alexenko that Cunningham would straighten out the situation. Alexenko spoke with Cunningham on October 22 and provided Cunningham with a copy of the emergency order of protection on October 23. That afternoon, Marsh called Alexenko and told him that Hines had learned of the emergency order of protection and would bring A.A. to the Naperville police station. Marsh told Alexenko to come to the police station to collect A.A. Alexenko got to the police station around 4:15 p.m. and found Hoffman, who told Alexenko that A.A. would be there any minute. After an hour passed, Alexenko asked the desk officer to inquire about A.A.'s whereabouts. The desk officer told him that “they” would be down any minute, id. ¶ 52, but shortly thereafter, only Hoffman appeared, who attempted to negotiate terms on Hines' behalf that differed from the emergency order of protection. Alexenko declined and Hoffman returned to a private area of the police station. Around 6:30 p.m., Alexenko again asked the desk officer for a status, at which point Hoffman and Marsh appeared and told Alexenko he could not collect A.A. that day. Although Hoffman represented that Hines and A.A. were not at the police station that day, they in fact had been there with Hoffman that evening, with Hines encouraged by Hoffman to ignore the emergency order of protection. Alexenko then spoke to Marshall and Cunningham, and Cunningham told him that Marsh was going to try to get into court as soon as possible.

         Having failed to hear anything further from the Naperville police despite additional inquiries, on October 26, Alexenko filed a child custody case in DuPage County Circuit Court. A guardian ad litem was appointed for A.A. on November 9. The guardian ad litem began an investigation. On November 15, the court entered an order returning A.A. to Alexenko's custody. Alexenko eventually had contact with A.A. on November 26.

         In connection with the child custody case, the court ordered that Hines be allowed to return to the residence she had shared with Alexenko to retrieve her property. On December 14, Hines, accompanied by Hoffman, went to the residence, where Hoffman facilitated and allowed Hines to take property that belonged to Alexenko.

         At some point, the guardian ad litem began complaining to the Naperville police department about Hoffman's inappropriate behavior. As a result, the City terminated Hoffman's employment in 2016. But Alexenko continued to experience harassing behavior. For example, the Naperville police department has stationed police cars outside his residence and officers have followed him as he drives in Naperville. Shortly after he filed his first amended complaint in this case, the City towed Alexenko's car. Although Alexenko admits that the car was parked in a tow zone overnight, among the many cars similarly parked, the City towed only his car. Only after Alexenko mentioned the towing in his response to the motion to dismiss the first amended complaint in this case did the City ticket other cars. Additionally, around August 9, 2017, Detective John Reed called Alexenko's counsel and requested an interview with Alexenko concerning his 2015 report that his car had been vandalized, explaining he needed to speak with Alexenko before closing the file. Reed also told counsel he believed Alexenko had mental issues. Although Reed claimed he had cleared his call through the City's legal department, defense counsel in this case told Alexenko's counsel they had no knowledge of Reed's call. A day after the call, Alexenko's neighbors reported that Naperville police officers were at Alexenko's door when he was not at home.


         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A ...

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