United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L.ELLIS UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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
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.
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.
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.
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 ...