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Tobey v. Chibucos

United States Court of Appeals, Seventh Circuit

May 15, 2018

Edward Tobey, Plaintiff-Appellant/Cross-Appellee,
Brenda Chibucos and Mary Stanton, Defendants-Appellees/Cross-Appellants.

          Argued November 28, 2017

          Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16-cv-03962 -Samuel Der-Yeghiayan, Judge.

          Before Bauer, Rovner, and Sykes, Circuit Judges.

          Rovner, Circuit Judge.

         One man's extradition is another man's "kidnapping." Edward Tobey, the plaintiff here, has three state-court convictions (one in Illinois and two in Florida) for possession of child pornography. Tobey also has a penchant for resisting the conditions of probation placed upon him by courts and by his probation officer. In 2013, his tussles with those in authority led to an uncomfortable prison transport ride from Illinois to Florida, followed by more than 106 days in a Florida jail. In 2016, he brought federal and state claims against his probation officer and an assistant state's attorney for this purportedly unwarranted "kidnapping." The defendants responded with a motion to dismiss and a request for sanctions. The district court dismissed Tobey's claims but denied the sanctions. Both sides appealed. We affirm the judgments in both appeals.


         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, (2007)). Although we must accept as true the well-pleaded factual allegations in the complaint, see Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008), we do not credit legal conclusions, or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. Sometimes, a litigant "makes our task of suspending credibility determinations difficult by lodging some fairly outrageous accusations."Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003). As will be apparent shortly, this is one of those cases. Much of Tobey's version of the facts is belied by certified court records. Because the appeal comes to us from the grant of a motion to dismiss for failure to state a claim, we must "be true to our task" and draw our recitation of the facts from the well-pleaded allegations of the complaint, however improbable they may seem. Payne, 337 F.3d at 771.

         In 2009, Tobey placed an order for two videos from an internet site advertising "videos of young girls." R. 1-1, at 3. When the videos arrived at Tobey's Florida home, he signed for them and was immediately arrested by U.S. Postal Inspectors as part of a sting operation. Tobey's arrest for receipt of the videos led to searches of his computers in his homes in Florida and Lake Bluff, Illinois. Those searches led to the discovery of "downloads" on both computers that eventually led to charges in both states.[1] Tobey pled guilty to Florida charges for possession of child pornography related to the videos on April 1, 2010. He was sentenced to four months' imprisonment and four years of probation. He was subsequently charged with possession of child pornography related to the images downloaded to his Florida computer. He pled guilty to those charges on September 1, 2011, and received a sentence of eight months' imprisonment and a period of probation extending to 2020.[2] In March 2012, when Tobey finished serving his Florida prison sentences, he returned to Illinois where he again pled guilty to possession of child pornography, this time for images discovered on his Illinois computer. Defendant Mary Stanton, an Assistant State's Attorney, served as the prosecutor on Tobey's Illinois case. A Lake County, Illinois judge sentenced Tobey to two and a half years of probation.

         At Tobey's request, supervision of his Florida probation was transferred to Illinois through the Interstate Compact on Adult Offender Supervision.[3] Defendant Brenda Chibucos, a Lake County probation officer, was assigned to supervise Tobey for both his Florida and Illinois probation periods. One condition of probation required Tobey to attend psychological group sessions. Probationers were expected to continue to attend these sessions until they successfully completed polygraph tests administered by the probation office. Failing to pass a polygraph resulted in the imposition of additional conditions of probation. This turned out to be a problem for Tobey.

         Tobey attached to his complaint a June 22, 2014 report from the therapist who provided to him sex offender specific services, including individual and group therapy. According to the therapist, in four attempts (July 2012; September 2012; January 2013; and February 2014) to pass a sexual history polygraph, Tobey had failed or provided "inconclusive" answers every time. Tobey had successfully passed a "maintenance" polygraph, demonstrating that he was capable of passing a polygraph despite his claims of anxiety. The therapist noted that Tobey admitted extensive use of pornography but denied "intentional use of child pornography, " even though he pled guilty three times to possession of child pornography. The therapist also observed that Tobey explained his failures by claiming "a lack of clarity in his memory" on specific issues "including certainty about the age of prostitutes in the Philippines and the age of models in his extensive history of pornography use." R. 1-2, at 2. Tobey completed five therapy sessions to work on clarifying his sexual history and was poised to "make one last attempt" to pass the sexual history polygraph at the time of the report. Because of these issues, the therapist recommended a six month extension of sex offender specific services.

         In early 2013 (around the time of Tobey's third polygraph failure), Chibucos demanded that Tobey sign a "behavioral agreement." In a March 21, 2013 meeting with Chibucos and two therapists, Tobey refused to sign the proposed agreement until his attorney reviewed it. According to the complaint, the behavioral agreement required Tobey to acknowledge that he "had repeatedly failed the sexual history polygraph, had with [sic] minor children, and that he had to pass rules and regulations on 'minor contact' and pornography use." R. 1-1, at 6-7. A review of the proposed agreement, which Tobey attached to his complaint, shows that Tobey mischaracterized the document, and we credit the document over Tobey's characterization of it. The agreement was not with Chibucos but rather with Blain and Associates, the therapy office providing Tobey with sex offender services. The agreement states that it was proposed due to continued failure of the sexual history polygraph, concerns about not following the rules of probation (including rules related to contact with minors), and overall lack of progress in the program. It required Tobey to pass the sexual history polygraph; involve his significant others in the process as deemed appropriate by his treatment team (by honestly disclosing his offense to them); follow all the rules of probation including restrictions on computer use and contact with minors; and attend an additional five therapy sessions. It warned that failure to meet the terms of the agreement by June 20, 2013 could result in suspension or discharge from the program and the filing of a petition to revoke probation. As we will discuss infra, these requirements were perfectly consistent with the conditions of probation imposed by courts in two states.

         Tobey also asserted in the complaint that, during this same time period, Chibucos wrote two memoranda to Stanton requesting that she file petitions to revoke Tobey's probation. Both memoranda, which are attached to the complaint, are dated March 18, 2013, but one was filed with the Lake County Court on March 22, 2013 and the second was filed with the same court on April 12, 2013. We will refer to them hereafter by their respective filing dates for clarity. The March 22 memorandum stated that an investigator had discovered that Tobey had internet access on his cell phone in violation of his Illinois and Florida probation conditions, that he was directed to remove that access by March 18, and that he told Chibucos that he was advised by his attorney that he did not have to disconnect internet service. The April 12 memorandum stated that Tobey had failed to cooperate with sex offender treatment and was suspended from treatment due to problems with cooperation. The April 12 memorandum also repeated the allegations regarding internet access on Tobey's cell phone. Tobey denied in the complaint that he was ever informed that he was suspended from treatment. His complaint is silent on whether he had access to the internet on his cell phone and whether he refused to remove that access in violation of his probation conditions.

         We pause for a moment to note that, at this point, the allegations of the complaint depart substantially from the version of events documented in all available public court records. Tobey asserts that the public record is false and that his sworn version of events is true, and so we must credit Tobey's version because his case was dismissed under Rule 12(b)(6). We mention this for two reasons. First, in light of certified court documents, parts of Tobey's version appear highly improbable, and yet because of the posture of the case, we must credit his sworn statements anyway. To the extent that his personal observations differ from the public record, we must resolve those conflicts in his favor on a motion to dismiss. Sobitan v. Glud, 589 F.3d 379, 380 n.2 (7th Cir. 2009) (when defendants dispute facts on a motion to dismiss, the facts as alleged by the plaintiff are presumed to be true). Cf. Watkins v. United States, 854 F.3d 947, 950 (7th Cir. 2017) (in the absence of a plausible, good-faith basis to challenge the legitimacy of a pleading, the court is entitled to take judicial notice of a complaint and its contents). Granted, the conflict between Tobey's allegations and the certified court record poses a thorny issue. Court records are not invariably accurate and may at least contain typographical errors if not outright falsehoods. But the issue is not one that we need to resolve because, as we discuss below, Tobey's claims fail on other grounds even if we credit his improbable allegations. Second, we must address the version supported by the public record when we attend to the arguments for sanctions in the district court and on appeal. We return for now to Tobey's version of events.

         According to Tobey, on April 15, 2013, he was scheduled for an appointment at the Adult Probation Office to meet with Chibucos regarding his failure to sign the behavioral agreement. He first went to his lawyer's office, but the lawyer was unavailable so he proceeded to the Probation Office. While in the waiting room, he was arrested by two Lake County Sheriff's Deputies and taken to the Lake County jail. Chibucos and Stanton had an agreement, approved by their supervisors, to have Tobey taken into custody and the Sheriff obliged. Four days later, Tobey spoke to his son-in-law, who had spoken to Tobey's criminal defense lawyer. That lawyer told his son-in-law that the Illinois judge who presided over Tobey's criminal case said that Tobey would not be transported to Florida but would be released from custody on April 22.

         On April 21, despite what Tobey claims was an order barring his removal from Illinois, and allegedly without any legal process, Tobey was purportedly "kidnapped" from the Lake County jail, shackled and placed in a van, where he remained shackled for three and a half days as he was transported to the Manatee County, Florida jail. During this "rough" ride, Tobey's recent hernia repair began to fail, resulting in a second surgery when he eventually returned to Illinois. Tobey further alleged that, in order to provide legal cover for Chibucos and in furtherance of an agreement to force Tobey to sign the behavioral agreement, Stanton sent Tobey's attorney an unstamped notice of arraignment dated April 18, 2013, on a Petition to Revoke Probation, for a hearing to be held May 2, 2013. He alleged that Stanton knew that he would be out of the jurisdiction on May 2, having arranged his purportedly involuntary departure. He also alleged that Stanton then sent a file-stamped copy of the notice and the petition to Tobey's lawyer, knowing counsel would not receive the notice until after Tobey was removed from the state, all in furtherance of an agreement between Stanton and Chibucos to provide cover for their illegal coercion of Tobey.[4]

         According to Tobey, Stanton remained silent in the face of Tobey's "kidnapping." On May 16, 2013, Stanton and Tobey's criminal defense attorney appeared before the Illinois judge who oversaw Tobey's prosecution and entered an agreed order to return Tobey to Illinois, supposedly pursuant to a previously-issued bench warrant for Tobey's return, although Tobey denied that a bench warrant appeared in the court's file. A June 13, 2013 order attached to the complaint also directed that Tobey be returned to Illinois to appear before that same judge on June 27, 2013. But Stanton allegedly ignored those orders and made no attempts to secure Tobey's return to Illinois.

         Instead, two months later, in August 2013, Stanton and Chibucos sent to Manatee County, Florida, a modified behavioral agreement containing many of the same terms as the agreement Tobey previously declined to sign, and doubling to ten the number of psychological counseling sessions that Tobey would be required to attend at a cost of $40 per session. After consulting with Florida counsel, and believing that he would not be released from the Manatee County jail unless he signed the behavioral agreement, Tobey asserted that he signed the agreement under duress. After signing the agreement, a Florida judge entered an order on a motion of the Manatee County state's attorney dismissing the "violation of probation warrant" against Tobey. Yet according to Tobey:

There was no violation of probation warrant or any other process justifying [Tobey's] kidnaping and transportation from Illinois to Florida nor for his 106-plus days in custody in Florida.

R. 1-1, at 12. The Florida court ordered Tobey returned to Illinois and he did subsequently return to Illinois after serving more than 106 days in jail purportedly without any legal process authorizing his incarceration. When he returned to Lake County, he claimed he was compelled by the defendants to sign another behavioral agreement, identical to the one he signed in Florida.

         His troubles with Chibucos and Stanton continued after his return. Chibucos would sometimes approve his travel out of state and sometimes not. When an Illinois judge approved a visit to Tobey's home from his adult daughter and her minor child, Chibucos allegedly threatened Tobey with an additional "kidnapping" if she ever obtained evidence that his minor granddaughter visited his Lake Bluff house. Tobey forwent visits with his daughter and granddaughter in fear of another "kidnapping." In June 2014, Stanton again filed a notice and petition to revoke, this time on the grounds that Tobey failed to successfully complete sex offender treatment, wilfully failed to pay court costs and failed to complete 200 hours of public service. Tobey claimed that the court took no action on this purportedly frivolous petition to revoke.

         On September 4, 2014, approximately three months after the therapist's report recommending a six-month extension to Tobey's therapy, the court granted Stanton's motion to extend Tobey's Illinois probation six months. The next month, Tobey passed a series of polygraph exams and was then no longer restricted from visiting his daughter.[5] Yet when he asked Chibucos to visit his daughter in Oregon over the 2014 Christmas holiday, she declined to grant permission unless his therapist designated his daughter as his granddaughter's babysitter during the visit. Although Tobey secured the designation from his therapist, Chibucos never granted permission for the visit.

         Tobey's Illinois probation terminated in March 2015 but he remained under Chibucos's supervision for his Florida probation. In May of that year, she granted him permission to travel to Texas and Louisiana to visit adult friends. Three months later, he requested permission to visit his daughter in Oregon but Chibucos claimed that she lacked authority to approve the visit and directed him to contact the probation office in Florida. Tobey was not aware that any of the actions taken against him by Chibucos and Stanton were allegedly unlawful until his attorney reviewed his file in March 2016. From March 2012 through the filing of his complaint, he claimed that he remained under threat of incarceration without due process.

         On April 1, 2016, Tobey filed a six-count complaint against Chibucos, Stanton and their unnamed supervisors. Count I alleged illegal arrest and detention in violation of the Fourth, Fifth, Eighth and Fourteenth Amendments. In particular, he alleged that he was taken into custody, involuntarily transported to Florida and detained in a Florida jail for 106 days without any legal justification and without any pre-incarceration hearing. Count II alleged that, in violation of due process and his rights under those same Amendments, Chibucos continues to threaten to have Tobey kidnapped and incarcerated again if he visits his granddaughter; wrongfully refuses to approve visits to his granddaughter; and repeatedly files frivolous petitions to revoke his probation. He asserted that Stanton provides legal cover for Chibucos's actions. Count III asserted ...

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