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Lavitee v. Dunstan

United States District Court, S.D. Illinois

March 29, 2018


          MEMORANDUM and ORDER

          Herndon United States District Judge.

         I. Introduction

         Before the Court are two motions to dismiss plaintiff Bradley Lavite's (“plaintiff” or “Lavite”) First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 56).

         First, defendants John D. Lakin and the Madison County Sheriff's Department seek dismissal on the grounds that (1) the suit is duplicative, (2) the suit is barred by the prohibition against claim splitting, (3) the Madison County Sheriff's Department is an improper party, (4) the suit fails to state a Section 1983 claim, and (5) the suit fails to plead plausible First Amendment retaliation claims (Counts I and II) or Due Process violations (Counts VI and VII). (Doc. 61).

         Second, defendants Alan J. Dunstan, Joseph D. Parente, Thomas D. Gibbons, and Madison County, Illinois seek dismissal on numerous grounds, including that (1) the suit is duplicative, (2) the suit is barred by the prohibition against claim splitting, (3) the suit is barred by the Rooker-Feldman doctrine, (4) the suit fails to plead plausible First Amendment claims (Counts I, II, VI, and VII) or Due Process violations (Count III) and fails to give the defendants fair notice of the allegedly wrongful acts committed by each defendant, (5) the Court should decline to exercise supplemental jurisdiction over the plaintiff's sole state law claim (Count VIII), and (6) the suit fails to plead Monell liability against defendants Gibbons, Parente, and Dunstan in their official and individual capacities. (Doc. 62).

         Plaintiff filed a response opposing defendants' motions to dismiss (Doc. 65) and defendants Lakin and the Madison County Sheriff's Department filed a Reply (Doc. 69). For the reasons explained below, the Court GRANTS IN PART and DENIES IN PART defendants Lakin and the Madison County Sheriff Department's motion to dismiss (Doc. 61) and DENIES defendants Dunstan, Parente, Gibbons, and Madison County's motion to dismiss (Doc. 62). The Court also DENIES plaintiff's motion to strike (Doc. 66).

         II. Background

         Plaintiff Bradley A. Lavite is a decorated U.S. military veteran who has served as superintendent of the Veterans' Assistance Commission of Madison County, Illinois (“VAC”) since 2009 (Doc. 56, ¶¶ 17-18). Prior to 2009, Lavite was deployed abroad where he was “exposed to multiple detonations of improvised explosive devices (IEDs) and engagements with enemy forces, and suffered serious injuries in combat” (Id. at ¶ 18). Since his release from active duty in 2004, Lavite has been under the care of the OEF/OIF PTSD Clinical Team at the St. Louis Veterans Administration Medical Center at Jefferson Barracks (“VA Medical Center”) and has been “compliant” and “actively involved in all recommended treatments” (Id. at ¶¶ 18, 25).

         In 2010, Lavite helped create the first veterans' alternative treatment court (“alternative treatment court”) in the state of Illinois and in August of the same year, Lavite joined the board of the Friends of McAtac Foundation (the “McAtac Foundation”), a non-profit formed “with the stated purpose of raising money for” the alternative treatment court (Id. at ¶¶ 20, 23). Between 2010 and 2013, Lavite and the McAtac Foundation participated in fundraising initiatives that raised approximately $30, 000 (Id. at ¶¶ 19-20).

         From the inception of the alternative treatment court in 2009 through mid-2010, the VAC was solely responsible for developing and implementing screening procedures to determine eligibility for the program (Id. at ¶ 21). In June 2010, Illinois enacted the Veterans and Servicemembers Court Treatment Act which Lavite claims excluded the VAC (Id.). In response, Lavite began to withdraw VAC support for the alternative treatment court, which shifted the burden of performing eligibility screenings from the VAC to Madison County (Id.).

         In 2012, amidst ongoing budget cuts, defendant Joseph Parente, the Administrator of Madison County, along with an employee from the Madison County Probation Department, approached Lavite in his capacity as VAC superintendent and requested that funds from the VAC's budget be used to pay the salary of a probation department employee whose position was at risk of elimination (Id. at ¶ 22). Lavite declined Parente's request (Id.).

         In early 2013, the board of the McAtac Foundation met, at Lavite's request, to discuss the expenditure of the funds raised by the foundation. (Id. at ¶ 23). At this meeting, one or more unspecified individuals proposed that a portion of the $30, 000 raised by the foundation be used to send several Madison County judges and probation department employees to an alternative treatment court conference in California (Id.). Lavite opposed this proposal and suggested instead that each Madison County department should pay for its own personnel to attend the conference (Id.).

         At this meeting, Lavite also stated that, under his interpretation of the Illinois Veterans and Servicemembers Court Treatment Act, the Madison County VAC was not required to participate in the alternative treatment court (Id. at ¶ 24). Lavite claims that the Madison County Public Defender[1] “vehemently opposed” Lavite's statements and interpretation of the statute and “snatched” the copy of the statute that Lavite was holding (Id.). The board postponed the vote on the issue of fund expenditure until a later meeting, at which all board members would have an opportunity to weigh in and discuss the issue (Id.). Lavite then drafted and circulated to the board his own proposal recommending the best use of the money, but he received no response (Id.). Subsequent McAtac Foundation annual filings no longer listed Lavite as a board member, although he was never notified of his removal from the board (Id.). Lavite was not notified of any other McAtac Foundation board meetings and does not know whether the board ever decided how to use the funds raised by the McAtac Foundation (Id. at ¶¶ 23-24).[2]

         In March 2014, Lavite suffered a “PTSD incident, ” which he describes as a “manic episode or highly agitated state, ” triggered by a broken and infected tooth (Id. at ¶ 25). After some confusion and delay in his treatment, [3] Lavite had oral surgery to remove the infected tooth and thereafter resumed his “normal working duties and family life” (Id.) This was Lavite's first such incident since his release from active military service in 2004 (Id.). Lavite claims that, during his absence from the VAC office in 2014, a social worker from the VA Medical Center discussed Lavite's medical condition with a VAC employee without Lavite's consent (Id. at ¶ 26).

         On or about March 5, 2015, Lavite experienced another PTSD incident at his residence in Wood River, Illinois, when his family recognized that he was in a “highly agitated state” and called the police (Id. at ¶ 29). Lavite's family asked the first responders to transport him via ambulance to the VA Medical Center, but they instead placed Lavite in a police car and took him to a holding cell (Id.). After continuing to exhibit PTSD-related symptoms, Lavite was placed in the back of a police car bound for the local mental health facility where he had been involuntarily admitted for several days the year before (Id.). While in the police car, Lavite “screamed at the driver and eventually kicked out the rear windows” of the car (Id.). He was subsequently transported to a nearby emergency room and then to the VA Medical Center (Id.). Lavite's psychiatrist at the VA Medical Center eventually cleared Lavite to return to work without limitations on March 23, 2015 (Id. at ¶ 31, Ex. B).

         On March 6, 2015, County Administrator Parente sent a letter to the President of the VAC Executive Board that referenced, “[w]ithout specifics, ” complaints Parente and other county personnel had received from VAC employees related to Lavite's conduct in the VAC office (Id. at ¶ 30). In the letter, Parente “attempted to convince” the VAC Executive Board that it was subject to, and required to follow, Madison County Personnel Policies (Id.).

         On March 20, 2015, Parente issued a “standing order” that Lavite was prohibited from entering his VAC office in the Madison County Administration Building, and that he would be arrested for trespassing if he defied the order (Id. at ¶ 32). On or about March 20, 2015, Parente telephoned the VAC Board President and “demanded that Lavite be fired from his position.” On May 4, 2015, Lavite's attorney spoke with Lt. Darin Trent, a member of the courthouse security division of the Madison County Sheriff's Department (Id. at ¶ 36). Lavite's attorney stated that Lavite would be returning to his office in the county building later that day (Id.). Lt. Trent responded that because Parente's “standing order” was still in effect, Lavite would be asked to leave if he tried to enter the building, and thereafter arrested for trespassing if he refused to leave (Id.). Lavite was forced to work remotely during the time he was denied access to his office (Id. at ¶ 32).

         On June 12, 2016, Lavite filed a complaint for mandamus in Illinois state court against defendants Dunstan, Parente, Madison County Board, and Lakin, seeking to reverse Parente's “standing order” prohibiting Lavite from accessing his office on Madison County property, compel the Madison County Board to pay his salary, and compel the Board to pay the VAC's attorneys' fees associated with the lawsuit (Doc 62-1).

         On August 5, 2016, Lavite initiated this federal action, and on May 8, 2017, he filed the operative First Amended Complaint, alleging that the defendants violated his First Amendment right to peaceably assemble on Madison County property (Count I), violated his First Amendment right to free speech by retaliating against him (Count II), and violated his Fourteenth Amendment due process rights by failing to refer an investigation of Lavite's conduct to law enforcement (Count III). Lavite also claims that Sheriff Lakin violated his Fourteenth Amendment due process rights either by failing to assure the existence of adequate rules and procedures to conduct an investigation (Count IV), or, alternatively, by failing to implement or follow such rules and procedures that the Sheriff's Department had in place (Count V). Lavite further alleges that Madison County State's Attorney Thomas Gibbons violated his Fourteenth Amendment due process rights when Gibbons, with reckless disregard for Lavite's constitutional rights, advised defendants Dunstan and Parente that it was legal to ban Lavite from Madison County property (Count VI), or, alternatively, that Gibbons violated his Fourteenth Amendment due process rights when Gibbons, with knowledge of the “standing order” banning Lavite from county property, failed to advise Dunstan and Parente that the ban was illegal and would violate Lavite's constitutional rights (Count VII). Finally, Lavite seeks accounting and recovery on the grounds that Dunstan, Parente, or another Madison County agent wrongfully assumed control over and withdrew funds from a VAC “special fund” without the knowledge or consent of the VAC (Count VIII).

         III. Motion to Dismiss

         Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court explained in Bell Atlantic Corp. v. Twombly that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. 544, 570 (2007). Although federal pleading standards were retooled by Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), notice pleading remains all that is required in a complaint. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (“A plaintiff still must provide only ‘enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.'”). In determining whether the allegations in the plaintiff's complaint are sufficient “to raise a right to relief above a speculative level, ” Twombly, 550 U.S. at 555, the Court assumes the truth of all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011); Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009).

         With these principles in mind, the Court now turns to address merits of the ...

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