Victor Brooks v. Mark Ross ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4286
V ICTOR B ROOKS,
Plaintiff-Appellant,
v.
M ARK R OSS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 2417—James B. Zagel, Judge.
A RGUED JUNE 4, 2009—D ECIDED A UGUST 20, 2009
Before F LAUM, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. This is the second time this court
has been asked to review the fall-out from Ronald
Matrisciano’s testimony before the Illinois Prison
Review Board (“PRB”) in support of inmate Harry
Aleman’s petition for parole. See Matrisciano v. Randle,
569 F.3d 723 (7th Cir. 2009). Normally, employees of the
Illinois Department of Corrections (“IDOC”) do not serve
as advocates for inmates. But this is what happened in
2 No. 08-4286
December 2002 when Matrisciano, an IDOC employee,
appeared before the PRB on behalf of Aleman. The
PRB voted overwhelmingly against Aleman, with PRB
member Victor Brooks providing the sole vote in his
favor. Because of Aleman’s notoriety, however, the
media took an interest in the hearing and in Matrisciano’s
role in it. See People v. Aleman, 729 N.E.2d 20 (Ill. App. Ct.
2000). In the wake of that publicity, the director of the
IDOC, Donald N. Snyder, demoted Matrisciano and
initiated an investigation into the parole incident. About
three years later, Matrisciano and Brooks were indicted
for official misconduct and wire fraud in connection
with the Aleman hearing. Both were acquitted.
Brooks became convinced that he was the victim of a
conspiracy to prosecute him. He filed the present
lawsuit in state court against Mark Ross, who had pre-
pared a report for the Illinois State Police on the
incident, and against Joseph Ponsetto, Edward Carter,
Jorge L. Montes, Norman M. Sula, and Kenneth D. Tupy,
all of whom played a role in the actions against Brooks.
Invoking 42 U.S.C. § 1983, Brooks raised a number
of constitutional and state-law claims against the defen-
dants. Defendants removed the suit to federal court, and
then filed an all-encompassing motion to dismiss, on
grounds of lack of subject-matter jurisdiction, sovereign
immunity, absolute immunity, public-official immunity,
absolute prosecutorial immunity, testimonial immunity,
failure to state a claim, and the statute of limitations.
The district court dismissed for failure to state a claim,
and the case has now reached this court. We affirm.
No. 08-4286 3
I
Brooks joined the IDOC in 1977, and in 1980, he be-
friended Matrisciano, a fellow employee. In 1995,
Governor Jim Edgar appointed Brooks to the PRB, and he
was reappointed by Governor George Ryan in 2001. One
of the PRB’s functions is to make parole decisions for
certain classes of IDOC inmates. At one such hearing in
December 2002, Matrisciano appeared and presented a
statement in favor of inmate Harry Aleman’s parole.
Matrisciano’s views, however, did not carry the day; only
Brooks, out of the eleven PRB members present, voted in
favor of Aleman.
Matrisciano’s testimony before the PRB caused some
controversy. Six days later, George de Tella, Associate
Director at the IDOC, demoted Matrisciano. (Our earlier
case arose out of this action: Matrisciano filed a lawsuit
asserting that his demotion violated his First Amendment
rights, but this court affirmed the grant of summary
judgment to the defendants in that case. Matrisciano,
supra.) Some time around January 2003, the IDOC referred
its investigation of wrongdoing to the State Police, with
defendant Mark Ross serving as the case agent. Over the
course of his investigation, Ross interviewed various
people, including Aleman, IDOC employee Nancy L.
Miller, and PRB members Jorge L. Montes and Norman M.
Sula. Assistant Attorneys General Joseph Ponsetto
and Edward C. Carter III were present at the Miller
interviews and assisted Ross at one of them. Ross re-
leased several investigative reports about his case, noting
in a 2003 report that “Matrisciano and an unknown
4 No. 08-4286
member of the parole board, had accepted payment to
speak favorably on behalf of inmate Harry Aleman at a
parole hearing for Aleman.” A January 2005 report specifi-
cally named Brooks as that PRB member, but
Ross’s investigation concluded with a report issued in
November 2005 that refrained from identifying the PRB
member who had accepted bribes. On December 9, 2005,
Brooks and Matrisciano were indicted by a grand jury and
charged with official misconduct and wire fraud in con-
nection with the Aleman hearing. They were both acquit-
ted on March 19, 2007, after a bench trial.
Brooks then filed this lawsuit on March 18, 2008, in the
Circuit Court of Cook County, alleging violations under
42 U.S.C. § 1983 as well as state law. Brooks named as
defendants Ross, Ponsetto, Carter, Montes, Sula, and Tupy
(PRB counsel), as well as Illinois Attorney General Lisa
Madigan and other unnamed or unknown state officials.
Citing the federal claims, defendants removed the case
to federal court. See 28 U.S.C. § 1441. (Sula was not part of
the initial notice to remove, because it was unclear at
the time whether he had properly been served.) Defen-
dants then filed a motion to dismiss, which was granted
in part, and Attorney General Lisa Madigan was dis-
missed from the case. Brooks parried with an amended
complaint, which alleged that the defendants had
deprived Brooks of due process and had conspired to
do so, and also raised state-law theories of malicious
prosecution, civil conspiracy, and intentional infliction
of emotional distress (“IIED”). Defendants again filed a
motion to dismiss based on untimeliness, sovereign
immunity, absolute immunity, public official immunity,
No. 08-4286 5
prosecutorial immunity, and failure to state a claim. The
district court granted the motion, relying on the last of
these grounds. It either declined to rule on or rejected
defendants’ other arguments. Plaintiff has now appealed,
and defendants both defend the district court’s ruling
and offer a number of other reasons why its judgment
should be affirmed.
II
This court reviews a dismissal under Rule 12(b)(6) for
failure to state a claim de novo. Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008). In analyzing the case, we
may affirm on any ground contained in the record. Bennett
v. Spear, 520 U.S. 154, 166 (2002). We elect to examine
the issues of timeliness, sovereign immunity, and proper
pleading in this opinion. Because we find these issues
sufficient to resolve the case, we need not reach defen-
dants’ arguments about absolute immunity, public
official immunity, or prosecutorial immunity.
A
The district court did not explicitly address the defen-
dants’ statute of limitations argument, but because we
find it potentially dispositive of at least some parts of
the case, we consider it first. A plaintiff in Illinois must
pursue a personal injury action within 2 years from the
accrual of the claim. 735 ILCS 5/13-202. Brooks’s § 1983
claims follow suit. See Wallace v. Kato, 549 U.S. 384, 387
(2007) (“Section 1983 provides a federal cause of action, but
6 No. 08-4286
in several respects relevant here federal law looks to the
law of the State in which the cause of action arose. This is
so for the length of the statute of limitations: It is that
which the State provides for personal-injury torts.”). As
noted above, Brooks was indicted on December 9, 2005,
and acquitted on March 19, 2007. He filed his initial
complaint on March 18, 2008. If his claims run from
the time of indictment, they are untimely. If they run
from the time of acquittal, the opposite is true.
Defendants claim that Brooks’s federal § 1983 conspiracy
and his state-law civil conspiracy and IIED claims are
barred by the statute of limitations because they accrued
at the time of the indictment. They concede, however,
that the state-law malicious prosecution and § 1983 due
process claims are not time-barred. This is so because
the former has as one of its elements the termination of a
prosecution in the defendant’s favor. Brooks’s § 1983
due process claim essentially contests the fairness of his
prosecution. It is thus similar to his malicious prosecu-
tion claim, and “claims resembling malicious prosecu-
tion do not accrue until the prosecution has terminated
in the plaintiff’s favor.” Snodderly v. R.U.F.F. Drug En-
forcement Task Force, 239 F.3d 892, 896 (7th Cir. 2001).
Therefore, that claim is not time-barred either.
Plaintiff has two responses to defendants’ timeliness
arguments. First, he contends that the court should not
rule on a statute of limitations defense in response to a
motion to dismiss. Second, he appeals to Illinois’s con-
tinuing tort rule, which holds that when “a tort involves
a continuing or repeated injury, the limitations period
No. 08-4286 7
does not begin to run until the date of the last injury or
the date the tortious acts cease.” Belleville Toyota v. Toyota
Motor Sales, U.S.A., 770 N.E.2d 177, 190 (Ill. 2002). Brooks
believes that his entire prosecution constitutes a con-
tinuing tort.
While complaints typically do not address affirmative
defenses, the statute of limitations may be raised in a
motion to dismiss if “the allegations of the complaint
itself set forth everything necessary to satisfy the affirma-
tive defense.” United States v. Lewis, 411 F.3d 838, 842
(7th Cir. 2005). (Technically, one might see this as a
motion for judgment on the pleadings under Rule 12(c)
rather than a motion under Rule 12(b)(6), but the
practical effect is the same.) We find it appropriate here
to consider the statute of limitations because the
relevant dates are set forth unambiguously in the com-
plaint. It is also clear that the continuing tort rule
does not apply in this case. The Supreme Court of Illinois
has stated that “where there is a single overt act from
which subsequent damages may flow, the statute begins
to run on the date the defendant invaded the plaintiff’s
interest and inflicted injury, and this is so despite the
continuing nature of the injury.” Feltmeier v. Feltmeier, 798
N.E.2d 75, 85 (Ill. 2003). The single overt act here is
Brooks’s indictment, even if the damages that Brooks
suffered may have continued throughout his trial. We
therefore find Brooks’s § 1983 conspiracy claims and
his state-law civil conspiracy and IIED claims time-barred.
8 No. 08-4286
B
While defendants concede that Brooks’s state-law
malicious prosecution was not time-barred, they argue
that it is barred by sovereign immunity. The Illinois
State Lawsuit Immunity Act stipulates that tort suits
against the State must be pursued in the Illinois Court of
Claims. 705 ILCS 505/8(d). This statute constitutes a
partial waiver of sovereign immunity, providing Brooks
with a court in which to pursue his state-law claim. It
does, however, leave intact sovereign immunity for state-
law claims pursued in federal court.
In this case, Brooks has chosen to sue employees of
the State of Illinois rather than the State itself. An em-
ployee’s conduct can be imputed to the State if “it is
alleged that the State’s agent acted in violation of
statutory or constitutional law or in excess of his author-
ity.” Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001).
The district court found that sovereign immunity did not
apply to the state-law claims in this case because Brooks
alleged that the state agents acted in violation of the
Constitution.
Richman actually supports a contrary result. In that
case, the district court held that sovereign immunity did
not apply because it found that the state-law tort claim
at issue was not dependent on the alleged constitutional
violation, but instead on a theory of wilful and wanton
negligence. We reversed and found that the deputies’
actions were within the scope of their authority for pur-
poses of sovereign immunity. Id. at 442. Here, Brooks
has pleaded both state-law and constitutional claims;
No. 08-4286 9
however, the former are not dependent on the latter.
Brooks’s malicious prosecution claim does not fall
under the exception to sovereign immunity for state
officials who have acted in excess of their authority,
because “there are no allegations that the defendant
was acting for a purpose unrelated to his employment.”
Id. As a result, Brooks’s malicious prosecution claim
is barred by sovereign immunity.
C
All that remains is Brooks’s § 1983 due process
claim. The primary ground on which the district court
dismissed this claim was that Brooks had failed ade-
quately to plead personal involvement, as his com-
plaint stated that “one or more of the Defendants” had
engaged in certain acts or deprived him of his constitu-
tional rights. The district court was correct to point out
that Brooks often uses this vague phrasing, which does not
adequately connect specific defendants to illegal acts.
See Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986)
(“An individual cannot be held liable in a § 1983 action
unless he caused or participated in an alleged constitu-
tional deprivation.”) (emphasis in original).
Some parts of Brooks’s complaint, however, do specify
a particular defendant as having engaged in certain acts.
Paragraphs 70-71, 80, 84-85, 87, 88-90, and 92-93 of the
complaint describe defendant Ross as producing various
investigative reports, one of which named Brooks. In
Paragraphs 84 and 85, Montes and Sula are named as
10 No. 08-4286
having participated in interviews conducted by Ross.
Ponsetto and Carter are referenced in Paragraphs 89-91 as
having either been present or having been present and
assisted in interviews of Miller conducted by Ross or
another investigator.
The question before us is whether these factual allega-
tions provide sufficient notice to defendants of Brooks’s
claims. This requires us to analyze the Supreme Court’s
recent decisions in this area, including its most recent
pronouncement in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
We begin with Rule 8, which states in relevant part:
“A pleading that states a claim for relief must contain: . . .
a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. C IV. P. 8(a). The
Rule reflects a liberal notice pleading regime, which is
intended to “focus litigation on the merits of a claim”
rather than on technicalities that might keep plaintiffs
out of court. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514 (2002).
In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the
Court turned its attention to what was required of plain-
tiffs at the pleading stage. It concluded that plaintiffs’
“[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. at 555. The Court
was careful to note that this did not impose a prob-
ability requirement on plaintiffs: “a well-pleaded com-
plaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a re-
covery is very remote and unlikely.” Id. at 556. The Court
did require, however, that the plaintiffs’ claim be “plausi-
No. 08-4286 11
ble.” In other words, “it simply calls for enough facts to
raise a reasonable expectation that discovery will reveal
evidence” supporting the plaintiff’s allegations. Id.
Any doubt that Twombly had repudiated the general
notice-pleading regime of Rule 8 was put to rest two
weeks later, when the Court issued Erickson v. Pardus,
551 U.S. 89, 93 (2007). Erickson reiterated that “[s]pecific
facts are not necessary; the statement need only give
the defendant fair notice of what the . . . claim is and
the grounds upon which it rests” (internal quotation
marks omitted) (omission in original). This court took
Twombly and Erickson together to mean that “at some
point the factual detail in a complaint may be so
sketchy that the complaint does not provide the type
of notice of the claim to which the defendant is entitled
under Rule 8.” Airborne Beepers & Video, Inc. v. AT&T
Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).
This continues to be the case after Iqbal. That case clari-
fied that Twombly’s plausibility requirement applies across
the board, not just to antitrust cases. In addition, Iqbal
gave further guidance to lower courts in evaluating
complaints. It noted that a court need not accept as true
“legal conclusions[, or t]hreadbare recitals of the ele-
ments of a cause of action, supported by mere conclusory
statements.” We understand the Court in Iqbal to be
admonishing those plaintiffs who merely parrot the
statutory language of the claims that they are pleading
(something that anyone could do, regardless of what
may be prompting the lawsuit), rather than providing
some specific facts to ground those legal claims, that
12 No. 08-4286
they must do more. These are the plaintiffs who
have not provided the “showing” required by Rule 8.
So, what do we take away from Twombly, Erickson, and
Iqbal? First, a plaintiff must provide notice to defendants
of her claims. Second, courts must accept a plaintiff’s
factual allegations as true, but some factual allegations
will be so sketchy or implausible that they fail to provide
sufficient notice to defendants of the plaintiff’s claim.
Third, in considering the plaintiff’s factual allegations,
courts should not accept as adequate abstract recitations
of the elements of a cause of action or conclusory legal
statements.
Returning to the case at hand, we note that Brooks has
alleged that the defendants engaged in a variety of activi-
ties: Ross produced investigative reports; Montes and
Sula gave interviews; and Ponsetto and Carter were
present and assisted in interviews. The Court in
Twombly said that plaintiffs’ allegations there of parallel
conduct were “consistent with conspiracy, but just as
much in line with a wide swath of rational and com-
petitive business strategy unilaterally prompted by com-
mon perceptions of the market.” Twombly, 550 U.S. at 554.
The Court found this insufficient to defeat a motion
under Rule 12(b)(6). Id. The same is true here. The
behavior Brooks has alleged that the defendants
engaged in is just as consistent with lawful conduct as
it is with wrongdoing. Without more, Brooks’s allega-
tions are too vague to provide notice to defendants of the
contours of his § 1983 due process claim.
No. 08-4286 13
Paragraph 102, in contrast, does not suffer from the
deficiencies that characterize the rest of Brooks’s com-
plaint. It reads as follows:
Plaintiff is informed, believes and alleges that the
Defendants while acting in concert with other State of
Illinois officials and employees of the Attorney Gen-
eral’s Office, Department of Corrections and Prisoner
Review Board did knowingly, intentionally and mali-
ciously prosecute Plaintiff and Ronald Matrisciano
in retaliation for Plaintiff and the said Ronald
Matrisciano exercising rights and privileges under
the Constitutions and laws of the United States and
State of Illinois.
In this paragraph, Brooks adequately pleads personal
involvement, because he specifies that he is directing this
allegation at all of the defendants. He also describes
unlawful conduct, because it is not lawful to prosecute
someone maliciously in retaliation for that person’s
exercising her constitutional rights. Nonetheless, this
paragraph fails under Iqbal, because it is merely a
formulaic recitation of the cause of action and nothing
more. It therefore does not put the defendants on notice
of what exactly they might have done to violate
Brooks’s rights under the Constitution, federal law, or
state law.
Because Brooks has failed to ground his legal conclu-
sions in a sufficiently plausible factual basis, we conclude
that the district court was correct to grant summary
judgment on this claim as well.
* * *
14 No. 08-4286
For these reasons, we A FFIRM the judgment of the
district court.
8-20-09