United States District Court, S.D. Illinois
BRADLEY A. LAVITE, Plaintiff,
ALAN J. DUNSTAN, JOSEPH D. PARENTE, JOHN D. LAKIN, THE MADISON COUNTY SHERIFF'S DEPARTMENT, THOMAS GIBBONS, AND MADISON COUNTY, ILLINOIS, Defendants.
MEMORANDUM and ORDER
Herndon United States District Judge.
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).
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).
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).
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).
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 ¶¶
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).
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.).
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.).
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
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 “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).
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,  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).
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).
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.).
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).
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).
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).
Motion to Dismiss
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).
these principles in mind, the Court now turns to address
merits of the ...