Danyus v. Slama DeRosa

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

TRICIA DANYUS and JUSTIN DANYUS, )

)

Plaintiffs, )

)

v. ) Case No. 19-1258

)

KENDRA SLAMA DEROSA, RICK )

BLEICHNER, THERESA CIARDINI, )

TRACY WOLF, and TOWN OF NORMAL, )

ILLINOIS, )

)

Defendants. )

ORDER AND OPINION

This matter is now before the Court on Defendants DeRosa, Bleichner, and Town of

Normal’s (collectively “Normal Defendants”) Motion to Dismiss Plaintiffs’ Complaint under Fed.

R. Civ. P. 12(b)(6) (ECF No. 18) and Defendants Ciardini and Wolf’s Motion to Dismiss Plaintiffs’

Complaint under Fed. R. Civ. P. 8(a) and 12(b)(6) (ECF No. 23). For the reasons stated below, the

Normal Defendants’ Motions to Dismiss Plaintiffs’ Complaint is GRANTED IN PART and

DENIED IN PART. Defendants Ciardini and Wolf’s Motion to Dismiss Plaintiffs’ Complaint is

DENIED.

BACKGROUND

Plaintiffs Tricia Danyus (“Tricia”) and Justin Danyus (“Justin”) (collectively “Plaintiffs”)

are foster parents to J.H., who is now sixteen years old, and the adoptive parents of I.D., who is

now four years old, and J.D., who is now three years old.1 I.D. and J.D. are biological siblings and

J.H. is their half-sister. On or about August 18, 2017, Plaintiffs began taking I.D. and J.D. to A

1 The alleged facts in the Background section are derived from Plaintiffs’ Complaint (ECF No. 1).

Shining Star Learning Center in Normal, Illinois for daycare because they were having difficulty

affording the previous daycare the children had attended. Justin had concerns about the new

daycare after dropping off I.D. and J.D., because the teachers were cold and unwelcoming, and he

was told I.D. would be spending time in a gym with older children. He contacted the adoption

worker to express his reservations. On or about August 21, 2017, Justin secured spots for I.D. and

J.D. at their previous daycare; however, because they were not scheduled to start until September

5, 2017, the children continued to attend A Shining Star Learning Center. On August 22, 2017,

when Tricia picked up the children, she was given an accident report related to a visible bump on

J.D.’s head, but nobody explained to her what had occurred. When she got home, she also noticed

a hand-shaped mark on J.D.’s buttock while changing his diaper. A few days prior, I.D. had come

home with two fingerprint-shaped bruises on her arm. Tricia feared that the daycare employees

caused the injuries on both children. Tricia photographed the injuries, and after sharing the pictures

with Justin, they decided to remove the children from A Shining Star Learning Center.

On August 27, 2017, Tricia posted the pictures of the marks on I.D. and J.D. to Facebook

and indicated that she believed the employees of A Shining Star Learning Center caused them.

The Facebook post was initially private and visible only to friends and family, but Tricia made it

public after a friend requested that she do so. The post was subsequently shared and commented

on by hundreds of people. The next day, someone called the police to anonymously report the

allegations in Tricia’s post. Shortly thereafter, Defendant Kendra Slama DeRosa (“DeRosa”), a

police officer/detective from Normal, Illinois, contacted Tricia and asked her to come to the police

station to give a recorded statement. DeRosa also contacted A Shining Star Learning Center and

asked for the names of the employees who had access to I.D. and J.D.

On August 28, 2017, DeRosa went to A Shining Star Learning Center and interviewed the

employees for approximately fifteen to twenty minutes each, as well as the director and owner of

the daycare for thirty minutes. DeRosa also watched a video of I.D. bumping his head. Supposedly,

she did not ask to watch videos of J.D.’s diaper changes, or of I.D. in the classroom, to determine

if the marks had been caused by any of the employees.

Later that day, Tricia went to the station where DeRosa interrogated her for approximately

one hour. Initially, DeRosa did not issue any Miranda warnings and was looking at Tricia’s cell

phone pictures. At some point during the interrogation, DeRosa did mirandize her. Tricia informed

DeRosa that I.D.’s and J.D’s physical therapist told her that she had previously heard of similar

instances happening at A Shining Star Learning Center, and that another mother had contacted her

to say that she was worried about marks on her child. DeRosa allegedly did not take down the

names of the physical therapist or the other mother in order to investigate further. Tricia believed

that DeRosa was attempting to pin the bruises on her instead. During the interrogation, DeRosa

stated that she had talked to the daycare workers who told her that arm bruises were not out of the

ordinary and that they did not cause them. Tricia alleges that DeRosa wanted her to say she was

not suspicious of the arm bruises, and admit the daycare employees caused them, so that DeRosa

could end her investigation. DeRosa told Tricia that if she returned to the daycare and watched all

the videos, and it did not show the handprint being caused by a daycare employee, then the

handprint must have come from someone at home. After the interrogation, DeRosa contacted the

Department of Children and Family Services (“DCFS”) who then put DeRosa in touch with

Defendant Theresa Ciardini (“Ciardini”), an assigned investigator to the matter.

DeRosa allegedly waited until August 31, 2017, to review the video from the day the mark

on J.D.’s buttock occurred. According to Plaintiffs, the video shows the following: daycare

workers abusing and neglecting children, a teacher grabbing I.D. forcefully by the arm and pulling

him around the room, a teacher grabbing I.D. by the shirt, yelling at him, smacking his hand away

from his mouth, teachers shoving children to the floor, a teacher ignoring a crying child after an

adult-sized rocking chair had fallen on him, a teacher changing multiple diapers without changing

gloves or washing her hands in between, and a teacher gripping J.D.’s buttock with a dirty latex

glove for an extended period of time.

On September 1, 2017, DeRosa called Tricia to the police station for a second round of

interrogation. Ciardini was also present and watched DeRosa interrogate Tricia from another room.

DeRosa allegedly told Tricia that she had seen the employees of A Shining Star Learning Center

doing a good job when she reviewed the video. Tricia maintained that neither she nor J.H. caused

the mark; however, DeRosa kept insisting that if Tricia admitted that she had caused the mark they

“could deal with it” and that, if she had, it would normally just be considered “parental discipline.”

(ECF No. 1 at 10). DeRosa also stated that everything pointed to Tricia having done it and that the

marks did not come from the daycare. DeRosa then left Tricia alone in the interrogation room for

over an hour while she interrogated J.H.

During J.H.’s interrogation, she told DeRosa that she did not hear a smack or a cry around

the time Tricia discovered the mark on J.D.’s buttock. J.H. further told DeRosa that Tricia had

been alone with J.D. for a matter of seconds before Tricia called for J.H. to bring her a phone to

photograph the mark. DeRosa then returned to Tricia and told her that J.H. stated that J.D. is

difficult to change, so Tricia must have used force on J.D. to try to get him to sit still, causing the

mark. Tricia began to cry and said she did not think of that possibility and she would never hurt

J.D. DeRosa continued to assert that the bruises did not occur at the daycare. DeRosa stated that

the only person who could have left the mark on J.D. was Tricia. She purportedly asked whether

Tricia was sorry for blaming the daycare, given that it had lost multiple customers as a result.

Shortly thereafter, Ciardini went into the room to interrogate Tricia. Ciardini said she agreed with

DeRosa that it was Tricia who had caused the mark. Ciardini also allegedly stated that spanking a

kid is not abuse or neglect. Tricia was still insisting that she did not smack J.D. and that another

mother told her that her child had been spanked and forced to pee his pants at the daycare. Ciardini

then allegedly said “honey, you just need to admit that you did that at some point, you really do, I

mean nobody is going to take your license, nobody is going to take your kids, nothing that bad is

going to happen . . . you smacked him on the butt, that’s it . . . you can’t get charged for that.” Id.

at 12. Ciardini further stated “the fact that you smacked him on the butt . . . does not make you a

child abuser.” Id. Ciardini eventually left Tricia crying in the room alone to wait for DeRosa to

return. DeRosa returned about seven minutes later and continued to interrogate Tricia. DeRosa

asked Tricia if she had smacked J.D. on the bottom with the intent not to hurt him and Tricia falsely

admitted that she had done so. DeRosa then told Tricia that she had spoken with the state’s attorney

and that Tricia would be arrested and criminally charged for her actions.

On or about September 5, 2017, Tricia was arrested for filing a false police report and

obstruction of justice, both of which are felonies. She spent the night in jail and was released the

next day on bond. The following day, Defendant Rick Bleichner (“Bleichner”), the chief of police

for Normal, Illinois, issued a press release stating that Tricia had falsely reported that employees

of A Shining Star Learning Center had abused her children, and that she had been charged with

obstruction of justice and filing a false report. The press release further stated that Tricia knew the

allegations were patently false, and A Shining Star Learning Center had fully and immediately

cooperated with detectives. The daycare had been cleared of any wrongdoing.

On or about September 6, 2017, Ciardini went to I.D. and J.D.’s new daycare and examined

them. She reported that I.D. had bruises on his body; however, Plaintiffs contend that he only had

one bruise on his buttocks that was not caused by abuse, and the other marks on his body were

from his eczema. Ciardini transported I.D. and J.D. to a hospital and the doctor told Ciardini that

there were no bruises on I.D.’s body and he just had eczema. The doctor did not suspect abuse.

On the same day, Tricia recanted her confession and told Ciardini that DeRosa had

pressured her into falsely admitting to having caused the mark on J.D.’s buttock. Around the same

time, the Pantagraph, a daily newspaper that serves the Bloomington-Normal, Illinois area,

published an article with a mugshot of Tricia indicating that she had confessed to having caused

the mark on J.D.

Ciardini and Defendant Tracy Wolf (“Wolf”), a Public Service Administrator for DCFS,

took protective custody of I.D. and J.D. When Ciardini learned that they were adopted, she placed

them with a relative instead. DCFS also removed J.H. from Plaintiffs’ custody and placed her with

a relative. I.D. and J.D. remained in the custody of relatives for approximately three months.

On or about September 7, 2017, DeRosa completed her police report, which stated that she

had watched the entire video from the daycare and that there was no misconduct captured. DeRosa

concluded daycare employees did not cause the mark.

On or about September 13, 2017, Tricia was indicted by a grand jury on two felony charges:

false report of an offense and obstruction of justice. On September 15, 2017, Tricia was formally

arraigned. On or about October 16, 2017, DCFS indicated Tricia for child abuse. On October 18,

2017, the state’s attorney filed an additional domestic battery charge against Tricia. On or about

October 19, 2017, DCFS indicated Justin for child neglect because he was unwilling to consider

that his wife caused the mark to J.D.

Plaintiffs’ criminal attorney obtained the video from the daycare where he discovered the

abuse and neglect by employees. Their attorney reported this to DCFS and requested that DCFS

investigate the daycare. On November 27, 2017, I.D. and J.D. were returned to Plaintiffs, but the

adjudication proceedings continued for another six months. On or about December 13, 2017,

DCFS opened a complaint against A Shining Star Learning Center. On or about January 12, 2018,

DCFS cited the daycare for multiple licensing violations based on the video footage. By February

2018, Plaintiffs’ custody of I.D. and J.D. was fully restored, and in May 2018, the petition for

adjudication was dismissed.

On June 22, 2018, the trial court suppressed Tricia’s confession because it was involuntary

and had been obtained by improper inducements. On July 27, 2018, after the suppression of the

confession, Tricia agreed with the prosecution to plead guilty to disorderly conduct, a

misdemeanor offense, in exchange for dropping the felony charge of filing a false report. The

felony charge of obstruction of justice was dismissed via nolle prosequi. On July 31, 2018, the

domestic battery charge was dismissed. Tricia was sentenced to six months of court supervision

and four days in jail. On or about January 3, 2019, the DCFS indications against Plaintiffs were

voluntarily unfounded. The Office of the Inspector General launched an investigation into

Ciardini’s misconduct, but the results of that investigation are confidential.

On July 26, 2019, Plaintiffs filed a Complaint (ECF No. 1) against Defendants and alleged:

(1) unreasonable post-arrest seizure and/or pre-trial due process violations of Tricia against

DeRosa and Ciardini; (2) knowing compulsion of an involuntary and false confession of Tricia

against DeRosa and Ciardini; (3) retaliation in violation of Tricia’s right to freedom of speech

against DeRosa, Ciardini, Wolf, and Bleichner; (4) equal protection violations of Tricia against

DeRosa, Bleichner, Ciardini, and Wolf, and of Justin against Ciardini and Wolf; (5) procedural

due process violations of Tricia against Ciardini and Wolf; (6) substantive due process violations

of Tricia and Justin against Ciardini and Wolf; (7) 42 U.S.C. § 1983 conspiracy of Tricia against

Ciardini; (8) state law malicious prosecution (criminal) of Tricia against DeRosa, Ciardini, and the

Town of Normal, Illinois; (9) civil conspiracy of Tricia against Ciardini; (10) state law malicious

prosecution (administrative and adjudicatory) of Tricia and Justin against Ciardini and Wolf; (11)

intentional infliction of emotional distress of Tricia and Justin against Ciardini and Wolf; and (12)

indemnification against the Town of Normal, Illinois. On October 28, 2019, the Normal

Defendants filed a Motion to Dismiss (ECF No. 18) under Fed. R. Civ. P 12(b)(6) for the claims

against them. On December 12, 2019, Defendants Ciardini and Wolf filed a Motion to Dismiss

(ECF No. 23) under Fed. R. Civ. P. 8(a) and 12(b)(6) for the claims against them. This Opinion

follows.

STANDARD OF REVIEW

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper if a complaint fails to

state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). To survive a motion to

dismiss, a complaint must contain sufficient factual matter, which when accepted as true, states a

claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility

means alleging factual content that allows a court to reasonably infer that the defendant is liable

for the alleged misconduct. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plaintiff’s

claim must “give enough details about the subject matter of the case to present a story that holds

together” to be plausible. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). A court

must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat’l Bank of

Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

When evaluating a motion to dismiss, courts must accept as true all factual allegations in

the complaint. Ashcroft, 556 U.S. at 678. However, the court need not accept as true the

complaint’s legal conclusions; “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic Corp., 550 U.S. at 555).

Conclusory allegations are “not entitled to be assumed true.” Id.

ANALYSIS

I. Count I – Unreasonable Post-Arrest Seizure and Pre-Trial Due Process

Violation

a. Heck v. Humphrey

Count I has been brought by Tricia against Defendants DeRosa and Ciardini. Plaintiffs

allege that Tricia was subjected to an unreasonable seizure by DeRosa and Ciardini when they

violated her Fourth Amendment rights by knowingly extracting a false confession from Tricia.

According to Plaintiffs, Tricia’s false confession was used to secure her prosecution for the felony

charges of filing a false police report and obstruction of justice, as well as a domestic battery

charge. Plaintiffs claim there was no probable cause to believe that Tricia committed any of the

offenses; therefore, Defendants are liable under 42 U.S.C. § 1983. The Normal Defendants argue

that Heck v. Humphrey, 512 U.S. 477 (1994) precludes Plaintiffs’ cause of action because Tricia

entered a guilty plea as a result of the investigation and prosecution at issue in this case. Plaintiffs

state that Tricia’s action is not barred by Heck, because she does not imply that her guilty plea was

invalid, and her plea was not based on the false confession. Instead, Plaintiffs contend that Tricia

pleaded guilty to the misdemeanor based on the Facebook post where she indicated that she

believed daycare employees had abused her children. Plaintiffs do not dispute that Tricia published

the post, or that in doing so, she “acted in such unreasonable manner as to alarm or disturb another

and to provoke a breach of the peace.” (ECF No. 1 at 18).

In Heck, the Supreme Court held that a plaintiff who has been convicted of a crime cannot

maintain a § 1983 claim where “a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Heck, 512

U.S. at 487. The Heck rule “is intended to prevent collateral attack on a criminal conviction through

the vehicle of a civil suit.” McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006). Where a claim

is theoretically compatible with the underlying conviction, it may nevertheless be Heck-barred “if

specific factual allegations in the complaint are necessarily inconsistent with the validity of the

conviction.” Id. at 621. Furthermore, “[i]t is irrelevant that [plaintiff] disclaims any intention of

challenging [her] conviction; if [s]he makes allegations that are inconsistent with the conviction’s

having been valid, Heck kicks in and bars his civil suit.” Okoro v. Callaghan, 324 F.3d 488, 490

(7th Cir. 2003).

A plaintiff need not prove that any conviction stemming from an incident with the police

has been invalidated, only a conviction that could not be reconciled with the claims of his civil

action. VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006). Plaintiffs have not alleged that

Tricia’s conviction has been reversed, expunged, invalidated or called into question. However,

“[o]nly a claim that ‘necessarily’ implies the invalidity of a conviction … comes within the scope

of Heck.” Gilbert v. Cook, 512 F.3d 899, 902 (7th Cir. 2008). The Supreme Court has emphasized

the need for a clear nexus between a plaintiff’s conviction and the alleged wrongful government

action before the Heck bar applies. In Nelson v. Campbell, 541 U.S. 637 (2004), the Court stated,

[W]e were careful in Heck to stress the importance of the term “necessarily.” For

instance, we acknowledged that an inmate could bring a challenge to the lawfulness

of a search pursuant to § 1983 in the first instance, even if the search revealed

evidence used to convict the inmate at trial, because success on the merits would

not “necessarily imply that the plaintiff's conviction was unlawful.” Heck, 512 U.S.

at 487 (noting doctrines such as inevitable discovery, independent source, and

harmless error). To hold otherwise would have cut off potentially valid damages

actions as to which a plaintiff might never obtain favorable termination . . .

Id. at 647. Thus, whether this suit is barred by Heck hinges on whether an action against Defendants

for unlawfully seizing Tricia after her false confession necessarily implies the invalidity of Tricia’s

guilty plea for disturbing the peace.

The Court finds that Plaintiffs’ claim does not invalidate Tricia’s guilty plea. Tricia’s

criminal conviction is not based on her false confession of injuring her children. That confession

was used to charge her with filing a false police report, obstruction of justice, and domestic battery.

Instead, her guilty plea was based solely on her Facebook post. Plaintiffs’ Fourth Amendment

claim also does not challenge the validity of that plea. Thus, an invalid seizure would not

necessarily imply that her conviction was unlawful. See Wallace v. Kato, 549 U.S. 384, 393-94

(2007); Brown v. Racine County, 775 Fed. Appx. 256, 257 (7th Cir. 2019); Rollins v. Willett, 770

F.3d 575, 576 (7th Cir. 2014) (reasoning that since there was no trial, “[a] finding that the

defendant was illegally seized—the finding he seeks in this suit—would therefore have no

relevance to the validity of his guilty plea and ensuing conviction”).

Even if Plaintiffs were to prevail on Tricia’s unreasonable seizure arguments, her guilty

plea would still stand. If the false confession unfolded as Plaintiffs allege in their civil suit, Tricia

could still be guilty of disturbing the peace, because she created a post on Facebook that led to

multiple individuals sharing it and inquiries into the daycare. In fact, the Normal Defendants state

that “the confession could not have caused the guilty disposition.” (ECF No. 18 at 5). Moreover,

Tricia’s original charges were not based on her Facebook post, but rather what she falsely

confessed to during her interrogation – injuring her children. In the Complaint, Plaintiffs do not

collaterally attack Tricia’s conviction, deny that she posted on Facebook, or that it led to a

disturbance of the peace. While the initial Facebook post is what led to the investigation, DeRosa’s

and Ciardini’s alleged extraction of Tricia’s false confession ultimately does not invalidate her

guilty plea of disturbing the peace.

Accordingly, the Court declines to dismiss Plaintiffs’ unreasonable seizure claim under the

Fourth Amendment claim.

b. Due Process Clause

Count I also alleges that Tricia was subjected to pre-trial deprivations of liberty without

probable cause by Defendants DeRosa and Ciardini in violation of the Due Process Clause. The

Normal Defendants argue that Plaintiffs’ claim is not viable because the Supreme Court has made

it clear that a claim for an arrest or seizure without probable cause sounds in the Fourth

Amendment and not the Due Process Clause. Plaintiffs state Tricia’s due process claim should not

be precluded, because DeRosa and Ciardini unlawfully deprived her of liberty interests by

knowingly using a false and involuntary confession to secure her pretrial conditions of release.

During this time, Tricia contends that she spent months facing the prospect of significant prison

time, was forced to defend herself against two felonies and a domestic battery charge, and was

forced to attend numerous court dates.

The Normal Defendants are correct that Plaintiffs cannot bring a due process claim for

unlawful pretrial detention or deprivations. In Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017)

(“Manuel I”), the Supreme Court held that pretrial detention after the legal process started did not

give rise to a Fourth Amendment claim but could constitute a due process claim if state law failed

to provide an adequate remedy. However, after Manuel I was decided, the Seventh Circuit

explained that all § 1983 claims for wrongful pretrial detention sound in the Fourth Amendment.

Manuel v. City of Joliet, 903 F.3d 667, 669-70 (7th Cir. 2018) (“Manuel II”). The court opined

that the constitutional right in question is the “right not to be held in custody without probable

cause,” the violation of which gives rise to a “plain-vanilla Fourth Amendment” claim under §

1983 because the essential constitutional wrong is the “absence of probable cause that would

justify the detention.” Id. at 670 (citing Manuel I, 137 S.Ct. at 917–20). “In other words, the Fourth

Amendment, not the Due Process Clause, is the source of the right in a § 1983 claim for unlawful

pretrial detention, whether before or after the initiation of formal legal process.” Lewis v. City of

Chicago, 914 F.3d 472, 479 (7th Cir. 2019).

As it can be seen, the Fourth Amendment is the source of right Plaintiffs seeks for Tricia’s

§ 1983 claim for unlawful pretrial deprivations. Therefore, the Court dismisses Plaintiffs’ due

process claim and considers the remaining allegations in Count I under the Fourth Amendment.

II. Count II – Knowing Compulsion of an Involuntary and False Confession

Count II has been brought by Tricia against Defendants DeRosa and Ciardini. Plaintiffs

claim that the Defendants violated her Fifth Amendment rights by using improper inducements

and lies to knowingly compel an involuntary and false confession from Tricia. Plaintiffs further

allege that the false confession was used as the sole basis to charge, indict, and prosecute Tricia

for two felonies and a domestic battery charge. The Normal Defendants claim that because Tricia’s

alleged false confession was never utilized against her at trial, Count II must be dismissed.

Plaintiffs argue that Count II must remain because Tricia’s false confession was used against her

in a criminal proceeding, specifically the September 13, 2017 grand jury hearing, which resulted

in her indictment.

The Fifth Amendment guarantees that no person “shall be compelled in any criminal case

to be a witness against himself.” U.S. CONST. amend. V. Regarding statements compelled by police

interrogations, the Supreme Court has said that “it is not until their use in a criminal case that a

violation of the Self–Incrimination Clause occurs.” Chavez v. Martinez, 538 U.S. 760, 767 (2003).

The Seventh Circuit has held that a “criminal case” has begun when a criminal prosecution is not

only initiated, but is commenced because of a confession, and that a defendant is compelled to be

witness against himself in violation of the Fifth Amendment when his unlawful confession is

introduced at a pretrial proceeding. Sornberger v. City of Knoxville, 434 F.3d 1006, 1026–27 (7th

Cir. 2006). In other words, a plaintiff’s self-incrimination rights are violated the first time his or

her confessions are introduced in a courtroom proceeding. Saunders v. City of Chicago, No. 12-

CV-09158, 2013 WL 6009933, at 4 (N.D. Ill. Nov. 13, 2013), on reconsideration in part, No. 12-

CV-09158, 2014 WL 3535723 (N.D. Ill. July 11, 2014).

The Normal Defendants contend that Chavez is the controlling case in this matter because

the Supreme Court opined that a plaintiff could only bring forth a Fifth Amendment claim alleging

a constitutionally invalid confession if the statement was used as evidence against them in a

criminal proceeding. The Normal Defendants attempt to state that a criminal proceeding is meant

to be solely indicative of a trial; however, that is incorrect. A probable cause hearing, a bail hearing,

and arraignment have all previously been considered criminal proceedings. See Sornberger, 434

F.3d at 1027. Any courtroom proceeding that is commenced because of a confession would

qualify. Saunders, 2013 WL 6009933, at 4. Here, Tricia was formally arraigned and indicted

following a grand jury hearing. Therefore, Tricia’s arraignment and grand jury hearing would

suffice for Fifth Amendment claim purposes. Moreover, Plaintiffs’ cause of action is

distinguishable from Chavez, because the plaintiff in that case was never charged with a crime and

his incriminating statements were never used against him in any criminal prosecution. Here,

Tricia’s statements were used against her during her arraignment and grand jury hearing where she

was evidently criminally charged.

Accordingly, the Court declines to dismiss Count II.

III. Count III – Retaliation in Violation of Tricia’s Right to Freedom of Speech

Count III has been brought by Tricia against Defendants DeRosa, Ciardini, Wolf, and

Bleichner. Plaintiffs allege that Tricia engaged in speech protected by the First Amendment when

she publicly posted her concerns about the daycare on Facebook. They claim that Defendants

DeRosa and Ciardini retaliated against Tricia by using improper inducements to compel a false

confession, causing her to be prosecuted for two felonies and a domestic battery charge. Plaintiffs

further claim that Defendants DeRosa and Bleichner retaliated against Tricia by issuing a press

release that publicly declared she falsely reported the alleged incident at the daycare, and that

Defendants Ciardini and Wolf retaliated against her by indicating her for child abuse. The Normal

Defendants argue that Plaintiffs have failed to allege that Tricia’s speech was protected, that a

deprivation occurred that would deter the alleged First Amendment activity, and that the activity

was a motivating factor in the Defendants’ decision to allegedly take retaliatory acts. Plaintiffs

contend that Tricia’s Facebook post was protected speech because she publicly posted a matter of

public concern, that her post was a motivating factor for Defendants’ actions against her and

subsequent criminal charges, and the actions taken against her are likely to deter an individual

from posting protected speech online if there were a risk that police would falsely charge them and

then publicly humiliate them - as what Tricia claims happened to her.

To state a claim for First Amendment retaliation, a plaintiff must plausibly allege three

elements: (1) the plaintiff engaged in an activity protected by the First Amendment; (2) the plaintiff

suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the

protected activity or speech was at least a motivating factor for the deprivation. Woodruff v. Mason,

542 F.3d 545, 551 (7th Cir. 2008).

While the Court has not been presented with the contents of the public Facebook post

verbatim, Plaintiffs allege enough facts for the Court to understand what the post entailed. The

Complaint states that “Tricia Danyus posted the pictures of the marks on I.D. and J.D. to Facebook

and indicated, in the same post, that she believed that employees of A Shining Star Learning Center

had caused them.” (ECF No. 1 at 5). The Court finds that the post contained speech on a matter of

public concern, specifically, a local daycare that may have been injuring or neglecting children.

Certainly, the community would want to know if their children were in some sort of danger.

Indeed, Plaintiffs state that the Facebook post was shared and commented on by “hundreds of

people.” Id. Therefore, the first element for a First Amendment retaliation claim has been satisfied.

In order to meet the second element, Plaintiffs must sufficiently allege that the adverse

action was enough to deter an ordinary person from engaging in that First Amendment activity in

the future. If the allegations in the Complaint are taken as true, then an individual may be deterred

from posting any concerns publicly on Facebook if there was a risk the police would investigate

them and subsequently charge them for crimes that they alleged someone else may have

committed. See generally Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (holding that

constitutionally protected speech may be deterred when there is a threat of prosecution “because

most people are frightened of violating criminal statutes.”) Here, Plaintiffs claim that due to

Tricia’s Facebook post, Defendants DeRosa and Ciardini pursued an investigation against her

instead of the daycare, which subsequently caused Tricia to be prosecuted for two felonies and a

domestic battery charge, be publicly humiliated, and indicated for child abuse by DCFS. The Court

concludes that the risk of being investigated and subsequently criminally charged would deter an

ordinary person from engaging in First Amendment activity. Upon taking the allegations as true,

Plaintiffs have met the second element.

As for whether the First Amendment activity was a motivating factor in DeRosa’s and

Ciardini’s alleged retaliation against Tricia, the Court finds that Plaintiffs have not plausibly

alleged sufficient facts. Plaintiffs state that Tricia’s Facebook post was a motivating factor for

Defendants’ conduct. However, Plaintiffs’ Complaint infers that the underlying investigation may

have been careless because DeRosa did not watch videos of the daycare in their entirety, conducted

short interviews of employees, and was trying to “come up with another person to pin it on, ideally

Tricia . . . so that she could falsely justify ending her ‘investigation’ into it.” (ECF No. 1 at 7).

These allegations do not suggest that the Facebook post motivated Defendants to criminally charge

and publicly humiliate her, rather, they indicate that Defendants wanted to get the investigation

over with swiftly, and in doing so, may have charged the wrong individual. Therefore, Plaintiffs

have not met the third element.

Accordingly, the Court dismisses Count III without prejudice and grants Plaintiffs leave to

file an amended complaint to re-plead this count within twenty-one (21) days, if they can do so in

good faith.

IV. Count IV – Equal Protection Violations

Count IV has been brought by Tricia against Defendants DeRosa, Bleichner, Ciardini, and

Wolf, as well as by Justin against Ciardini and Wolf. Plaintiffs claim that the way the Defendants

treated the daycare and its employees, compared to them, demonstrates that the Defendants had an

illegitimate animus against Plaintiffs. The Normal Defendants argue that Plaintiffs have failed to

advance a “class of one” equal protection claim, because the daycare is not a sufficiently similarly

situated comparator, Plaintiffs have failed to allege that there was no rational basis for any

difference in treatment, and investigating Plaintiffs does not establish a pattern of harassment or

other tort. Plaintiffs claim that Defendants have misinterpreted their argument, because they are

alleging they were treated differently from the employees of the daycare during the investigation,

not the business entity of the daycare itself. Plaintiffs state that due to this different treatment,

Defendants lacked a rational basis. Additionally, Plaintiffs contend that DeRosa and Bleichner

wanted to protect the daycare.

The Fourteenth Amendment’s Equal Protection Clause is typically “understood as

protecting members of vulnerable groups from unequal treatment attributable to the state,” but the

clause “also proscribes state action that irrationally singles out and targets an individual for

discriminatory treatment as a so-called ‘class-of-one.’ ” LaBella Winnetka, Inc. v. Vill. of

Winnetka, 628 F.3d 937, 941 (7th Cir. 2010) (quoting Reget v. City of La Crosse, 595 F.3d 691,

695 (7th Cir. 2010)). “[A]t a minimum,” the claim “would require proof that the defendants

intentionally treated [a plaintiff] differently from others situated similarly to [him or] her for no

rational reason,” Williamson v. Curran, 714 F.3d 432, 449 (7th Cir. 2013) (citing Thayer v.

Chiczewski, 705 F.3d 237, 254 (7th Cir. 2012)), and it is unclear whether plaintiffs must also show

improper motive, or “illegitimate animus,” to successfully prove the claim, see Thayer, 705 F.3d

at 254.

In any event, the bar for a class-of-one equal protection claim is high. If there is a

“conceivable rational basis for the difference in treatment” suffered by the class member, then the

claim fails. D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013); see Heller v. Doe by

Doe, 509 U.S. 312, 320 (1993) (explaining that under rational basis review in an equal protection

challenge, “a classification ‘must be upheld against equal protection challenge if there is any

reasonably conceivable state of facts that could provide a rational basis for the classification.’ ”)

(quoting F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)). The burden lies with the

plaintiff to “overcome the presumption of rationality attached to government action.” Flying J Inc.

v. City of New Haven, 549 F.3d 538, 545 (7th Cir. 2008). It is for this reason that animus, improper

motive, and other factors that cast doubt on a possible rational basis are frequently pleaded. See

Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 913 (7th Cir. 2012) (Wood, J., dissenting)

(“[these factors are] illustrative of the kind of facts on which a plaintiff might rely in a complaint

to show that the lack of a rational basis is not merely possible, but plausible”). In this case, there

are conceivable rational bases for the actions of each of the Defendants, and Plaintiffs do not offer

any allegations to diminish the plausibility of these bases.

Plaintiffs allege that DeRosa and Ciardini violated Tricia’s equal protection rights when

they used improper inducements to compel her to falsely confess and subsequently be charged for

two felonies and a domestic battery charge. Plaintiffs state this is because DeRosa and Ciardini

wanted to protect the daycare from losing business. It is well known that the manner in which

police conduct their investigations is within their discretion. See Hilton City of Wheeling, 209 F.3d

1005, 1007 (7th Cir. 2000) (stating that police have broad discretion in routine law enforcement

matters.) Taking the allegations in the Complaint in the light most favorable to the Plaintiffs, the

Court will interpret Plaintiffs’ argument that daycare employees were similarly situated to them,

as opposed to the business entity. Here, the employees and Tricia were investigated for potential

child abuse. Plaintiffs assert that the employees were treated differently than them; however, the

Court finds that the allegations do not reflect that to be the case. According to the Complaint, the

daycare employees were interviewed for approximately fifteen to twenty minutes each, and the

daycare owner and director for thirty minutes. (ECF No. 1 at 6) (emphasis added). This does not

include the time DeRosa reviewed the video tape of the daycare along with any other investigative

duties she performed. Tricia’s first interrogation lasted for one hour and her second was over two

hours. (ECF No. 1 at 8, 14). Therefore, her interrogations lasted approximately three hours. This

includes the instances where Tricia was left alone in the room during her second interrogation -

one hour on one occasion and seven minutes for another. Id. at 12. The Court does not find that

there was a significant disparity in the length of time spent between speaking with the employees

and Tricia, especially since Tricia’s second interrogation purportedly includes at least an hour

where she was not questioned. As it can be seen, the allegations in the Complaint demonstrate that

the employees and Tricia were both investigated in similar fashions. Moreover, Plaintiffs allege

that after the first interrogation, DeRosa contacted DCFS and was told the case would be assigned

to an investigator. Id. at 8. That investigator became Ciardini. There is nothing in the Complaint

that would suggest that Ciardini was not chosen at random by DCFS to be assigned to the

investigation. In other words, the Complaint lacks any allegation that would suggest Ciardini

targeted Tricia specifically. Whichever manner Ciardini chose to interrogate Tricia was up to her

discretion. Accordingly, the Court finds that DeRosa and Ciardini did not intentionally treat Tricia

differently from the daycare employees during the investigation and Plaintiffs have not overcome

the presumption of rationality as to DeRosa’s and Ciardini’s actions in this regard.

Plaintiffs allege that DeRosa and Bleichner violated Tricia’s equal protections rights by

issuing a press release that stated she had falsely reported daycare employees had abused her

children. Bleichner was the chief of police of Normal, Illinois at the time of the incident and,

according to the Complaint, never interrogated Tricia. There are no allegations to rebut the

inference that Bleichner was simply following protocol. In other words, it is typical procedure for

police stations to issue press releases, or similar announcements, when someone is charged. See

generally Doe v. Ziemer, No. 18-CV-3234, 2019 WL 1916194, at *2 (C.D. Ill. Apr. 30, 2019)

(stating that plaintiff’s name was part of the public record once she was indicted.) Plaintiffs also

claim that DeRosa conspired and worked with Bleichner on the press release, but there are no

allegations in the Complaint that support this assertion. Therefore, Plaintiffs have not overcome

the presumption of rationality as to DeRosa’s and Bleichner’s actions in regard to issuing the press

release.

Furthermore, Plaintiffs allege that Ciardini and Wolf violated their equal protection rights

by indicating Tricia for child abuse and indicating Justin for child neglect. Plaintiffs contend that

this caused them to lose their foster home license, custody of I.D., J.D., and J.H. for months, and

to lose the ability to adopt J.H. and I.D. and J.D.’s biological sibling. Plaintiffs claim Ciardini and

Wolf did this to protect the daycare. The Complaint is completely devoid of any allegations that

would propose Ciardini and Wolf would have acted differently after Tricia was charged with the

felonies and domestic battery. There is nothing to suggest that both Defendants were not following

standard protocol after an investigation resulted in the criminal charges Tricia received.

Furthermore, the Court fails to see how Plaintiffs were treated differently from the daycare

employees in this regard since the employees were not criminally charged at the time Plaintiffs

were indicated. It is nonsensical to assume the daycare and its employees should have endured the

same consequences when, at the time, the daycare was not charged with any crime. Accordingly,

Plaintiffs have not overcome the presumption of rationality as to Ciardini and Wolf in regard to

the indications Plaintiffs received following Tricia’s criminal charges.

Accordingly, the Court dismisses Count IV without prejudice and grants Plaintiffs leave to

file an amended complaint to re-plead this count within twenty-one (21) days, if they can do so in

good faith.

V. Count VIII – State Law Malicious Prosecution

Count VIII has been brought by Tricia against Defendants DeRosa, Ciardini, and the Town

of Normal, Illinois. Plaintiffs allege that DeRosa facilitated the malicious prosecution by

compelling a false confession from Tricia, “by providing the information she unlawfully obtained

to a police sergeant who reiterated that information in front of a grand jury, by creating false

and/or misleading criminal complaints and police reports . . . and by giving false and misleading

information to prosecutors.” (ECF No. 1 at 32). Plaintiffs further allege that Ciardini facilitated

the malicious prosecution by unlawfully compelling Tricia to confess. The Normal Defendants

argue that Plaintiffs’ cause of action for malicious prosecution is not viable because Tricia’s

prosecution did not terminate in her favor since she entered a guilty plea. Plaintiffs claim that

deposition testimony and other evidence may show that the prosecution dismissed the charges

because it did not have any evidence to support them after Tricia’s confession had been suppressed.

Therefore, according to Plaintiffs, the Court cannot dismiss the claim at this stage.

Under Illinois law, to state a cause of action for malicious prosecution, a plaintiff must

allege facts showing: (1) the commencement or continuance of an original criminal or civil judicial

proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the

absence of probable cause for such proceedings; (4) the presence of malice; and (5) damages

resulting to the plaintiff. Mut. Med. Plans, Inc. v. County of Peoria, 309 F.Supp.2d 1067, 1080

(C.D. Ill. 2004).

Here, there was certainly a commencement of a criminal judicial proceeding as the

information obtained during Tricia’s interrogation was used during her grand jury proceeding and

subsequently two felony charges and a domestic battery charge. On July 27, 2018, Tricia’s felony

charge for filing a false police report was reduced to a misdemeanor charge for disorderly conduct

as part of a plea deal. On the same date, the felony charge for obstruction of justice was dismissed

via nolle prosequi. On July 31, 2018, Tricia’s domestic battery charge was dismissed. A

termination of criminal proceedings in favor of the accused can only occur when the charges are

abandoned for reasons that indicate the accused is innocent. Washington v. Summerville, 127 F.3d

552, 557–58 (7th Cir.1997); see Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). In

determining whether a disposition constitutes a “favorable termination” of the proceedings, courts

must look at the circumstances under which the disposition was obtained, not the form or title.

Cult Awareness Network v. Church of Scientology Int'l, 685 N.E.2d 1347, 1352–53 (Ill. 1997). In

Swick, the Illinois Supreme Court considered the question of whether a criminal proceeding

terminated by a nolle prosequi had ended favorably for the accused. A nolle prosequi is a formal

entry of record whereby the prosecuting attorney formally declares that he or she is unwilling to

prosecute a case. Ferguson v. City of Chi., 820 N.E.2d 455, 460 (Ill. 2004). The Illinois Supreme

Court stated that “[t]he abandonment of the proceedings is not indicative of the innocence of the

accused when the nolle prosequi is the result of an agreement or compromise with the accused,

misconduct on the part of the accused for the purpose of preventing trial, mercy requested or

accepted by the accused, the institution of new criminal proceedings, or the impossibility or

impracticability of bringing the accused to trial.” Swick, 662 N.E.2d at 1243. A plaintiff bears the

burden of establishing that the underlying criminal proceedings ended favorably for her and this

can occur when a nolle prosequi was entered for reasons consistent with her innocence. Id.

Here, while the grand jury indicted Tricia on two felony charges for obstruction of justice

and filing a false police report, as well as a domestic battery charge, she eventually pled guilty to

a misdemeanor disorderly conduct charge. The Complaint alleges that the plea agreement included

pleading guilty to the disorderly conduct charge in exchange for dropping the felony charge for

filing a false report. Plaintiffs state that the felony charge for obstruction of justice ended by nolle

prosequi, and a few days later, the domestic battery charge was dropped. Plaintiffs claim that the

prosecution did not pursue the remaining charges because they did not have any evidence to

support them after Tricia’s confession had been suppressed. (ECF No. 1 at 18; ECF No. 21 at 15).

Thus, according to Plaintiffs, the abandonment of the original charges resulted from a plea

agreement as well as the impossibility or impracticability of bringing the accused to trial. See

Swick, 662 N.E.2d at 1243. These reasons do not constitute a favorable resolution for Tricia. In

fact, as a result of her guilty plea, Tricia was sentenced to six months of court supervision and four

days in jail. (ECF No. 1 at 18). She was not able to completely walk away without some penalty.

Because Plaintiffs have not established the second element of a malicious prosecution

claim, the Court dismisses Count VIII without prejudice and grants Plaintiffs leave to file an

amended complaint to re-plead this count within twenty-one (21) days, if they can do so in good

faith.

VI. Count XII – Indemnification

Count XII has been brought by Tricia against the Town of Normal. Plaintiffs allege that

under 745 Ill. Comp. Stat. Ann. 10/9-102, the Town of Normal must pay any tort judgment or

settlement for which DeRosa and Bleichner, their employees, committed within the scope of their

employment. The Normal Defendants argue that without finding of liability or judgment on

Plaintiffs’ cause of action, there can be no indemnification by the Town. Plaintiffs claim that since

the Normal Defendants have not shown that all of their claims against DeRosa and Bleichner must

be dismissed, then the indemnification claim must stand.

Section 9/102 states that “[a] local public entity is empowered and directed to pay any tort

judgment or settlement for compensatory damages (and may pay any associated attorney’s fees

and costs) for which it or an employee while acting within the scope of his employment is liable.”

While no claims remain against Bleichner2, there are still remaining claims against

DeRosa. Therefore, the Court declines to dismiss Count XII as the Town of Normal may still be

liable under the statute if Plaintiffs obtain a judgment or settlement against DeRosa.

VII. Federal Rule of Civil Procedure 8(a)

Defendants Ciardini and Wolf claim that Plaintiffs’ Complaint violates Fed. R. Civ. P. 8(a)

because it is too long since it compromises of 298 paragraphs and 39 pages total. Plaintiffs argue

that the paragraphs are brief, coherent, and straightforward. Plaintiffs further argue that the

allegations are directed at specific Defendants, of which there are five, and each cause of action

provides the specific Defendant with notice of how and why their conduct entitles Plaintiffs to

relief.

“Rule 8(a) requires parties to make their pleadings straightforward, so that judges and

adverse parties need not try to fish a gold coin from a bucket of mud.” US. ex rel. Garst v.

Lockheed–Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003). “[W]here the lack of organization and

basic coherence renders a complaint too confusing to determine the facts that constitute the alleged

wrongful conduct, dismissal is an appropriate remedy.” Stanard v. Nygren, 658 F.3d 792, 798 (7th

Cir. 2011). However, “undue length alone ordinarily does not justify the dismissal of an otherwise

valid complaint.” Id. at 797; see Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001)

(stating that dismissal is inappropriate “merely because of the presence of superfluous matter.”).

The purpose of Rule 8(a) is to ensure that the defendants have “fair notice of the claims against

them and the grounds supporting those claims.” See Lawrence v. Secretary of State, 467 Fed. Appx.

523, 524 (7th Cir. 2012)

2 The Court has granted Plaintiffs leave to re-file an amended complaint if they can do so in good faith. As of the

date of this Order, there are no claims remaining against Bleichner; however, if Plaintiffs choose to file an amended

complaint, his status as a party to this case may change.

The Court finds that Plaintiffs’ Complaint satisfies Fed. R. Civ. P. 8(a). The Complaint is

organized in a manner that gives notice to which Defendant each cause of action applies to.

Plaintiffs assert a series of factual allegations that support each claim or conclusion. Although the

complaint is repetitive at times, a “district court is not authorized to dismiss a complaint merely

because it contains repetitious and irrelevant matter.” Garst, 328 F.3d at 378 (internal quotation

marks omitted). The Complaint is long because Plaintiffs have sued a number of Defendants and

have brought forth several claims. Accordingly, the Court finds that Plaintiffs’ Complaint is not

unnecessarily long or confusing and declines to dismiss the Complaint.

CONCLUSION

For the reasons stated above, the Normal Defendants’ Motion to Dismiss [18] is

GRANTED IN PART and DENIED IN PART. Defendants Ciardini and Wolf’s Motion to Dismiss

[23] is DENIED. Regarding Count I, Plaintiffs may proceed on their claim for unreasonable

seizure under the Fourth Amendment, but not their due process claim. In addition, Counts II and

XII remain, Counts III, IV, and VIII are dismissed without prejudice and the Court GRANTS

Plaintiffs leave to file an amended complaint to re-plead these counts within twenty-one (21) days

of this Order, if they can do so in good faith.

ENTERED this 10th day of March, 2020.

/s/ Michael M. Mihm

Michael M. Mihm

United States District Judge