Lee v. State of Illinois, Illinois Attorney General

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FLINT J. LEE, )

)

Plaintiff, )

) Case No. 19-cv-30

v. )

) Judge Robert M. Dow, Jr.

NATALIE HOWSE, KIM FOXX, LEO )

P. SCHMITZ, EDDIE JOHNSON, LISA )

MADIGAN, and ARTHUR WILLIS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Flint Lee (“Plaintiff”) brings this Section 1983 suit against Assistant Cook County

State’s Attorney Natalie Howse (“Howse”); Cook County State’s Attorney Kim Foxx (“Foxx”);

former Director of the Illinois State Police Leo Schmitz (“Schmitz”); former Superintendent of the

Chicago Police Department (“CPD”) Eddie Johnson (“Johnson”); former Illinois Attorney General

Lisa Madigan (“Madigan”); and former public defender Arthur Willis (“Willis”) for alleged

constitutional violations arising out of Plaintiff being required to register as a sex offender under

Illinois’ Sex Offender Registration Act, 730 ILCS 150/1 et seq. (“SORA”). All Defendants have

filed motions to dismiss Plaintiff’s governing amended complaint [51]. See [58], [59], [62], [89],

and [91]. Plaintiff has also filed various motions. See [105], [110], [114]. For the reasons that

follow, all of Defendants’ motions to dismiss, [58], [59], [62], [89], and [91], are granted and

Plaintiff’s amended complaint is dismissed in its entirety. Plaintiff’s request to amend complaint

[105] and request for permission to start discovery [110] are both denied and Plaintiff’s request

for Defendants to admit [114] is stricken. However, Plaintiff is given until June 26, 2020 to file a

motion for leave to file a second amended complaint, to the extent he can do so consistent with

this opinion and Rule 11. See Fed. R. Civ. P. 11. Plaintiff must attach to his motion the second

amended complaint that he seeks to file. All documents must be served on Defendants in

compliance with Federal Rule of Civil Procedure 4.

I. Background1

Plaintiff filed his governing first amended complaint (“Complaint”) [51] pro se. The

Complaint is lacking in factual detail and difficult to follow. As best the Court can tell based on

the Complaint, public records of which the Court may take judicial notice,2 Plaintiff’s response

brief [65], and Plaintiff’s original complaint [1], Plaintiff complains about the following: In 1989,

Plaintiff “was convicted by a jury of attempted murder, armed robbery, attempted aggravated

criminal sexual assault, and aggravated battery” for attacking a real estate agent in a model home.

People v. Lee, 584 N.E.2d 185, 186 (Ill. App. 1991). At trial, a witness for the state read a

statement from Plaintiff in which he allegedly “confessed to being on cocaine during the incident,

planned to take [the victim’s] purse or camera, entered the model home, changed the light bulbs,

choked her, intended to knock her out by striking her with a lamp, pulled her pants down to fulfill

a sexual fantasy of rape, but stopped when he saw she had her period, took her keys, and removed

[the victim’s] purse from the drawer in the office.” Id. at 187. Plaintiff was “sentenced to 30 years

on the attempted murder conviction, 15 years on the sexual assault conviction, and 30 years on the

armed robbery conviction, all to be served concurrently.” Id. at 186. The conviction and sentence

1 For purposes of Defendants’ motions to dismiss, the Court assumes as true all well-pled allegations set

forth in Plaintiff’s Complaint [51]. See Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th Cir. 2017).

2 See Orgone Capital III, LLC v. Daubenspeck, 912 F.3d 1039, 1044 (7th Cir. 2019) (on motion to dismiss

court may “take judicial notice of matters of public record”); Collins v. Village of Palatine, 875 F.3d 839,

842 (7th Cir. 2017) (“judicial notice of public court documents is appropriate when ruling on a Rule 12(b)(6)

motion to dismiss”).

for the attempted murder charge were reversed due to an error in instructing the jury. See id. at

187-88. On remand, the prosecutor dismissed the attempted murder charge.

After serving his prison sentence, Plaintiff was required to complete three years of

mandatory supervised release. Upon completing supervised release, Plaintiff was required by

SORA, 730 ILCS 150/3(c)(4), to register as a sex offender. See [65] at 3. He also must report to

the CPD every ninety days for life. See [51] at 7.

In March 2012, Plaintiff was arrested and charged with failure to register as a sex offender

as required by SORA. See [65] at 3. At the time of the offense, 730 ILCS 150/3(a) required that

“[a] sex offender . . . within the time period prescribed in subsections (b) and (c), register in person

and provide accurate information as required by the Department of State Police.” Plaintiff was

convicted of the charge. See [1] at 8. Plaintiff emphasizes that when he was convicted, the

presiding judge “stated numerous times” that the charge was “based upon … Plaintiff’s 1989

conviction for attempt[ed] aggravated criminal sexual assault.” Id. at 7-8.

Plaintiff alleges that being required to register as a sex offender has caused him to be

publicly labeled a sexual predator and fails to afford him the presumption of innocence or

reasonable doubt in violation of the Due Process, Double Jeopardy, Ex Post Facto, and Equal

Protection Clauses and the Fourth and Fifth Amendments of the United States Constitution.

Plaintiff alleges that all of the Defendants have enforced state laws requiring Plaintiff to register

as a sex offender with “willful, malicious, deliberate indifference towards” Plaintiff, which has

“caused adverse and damaging effects upon [his] liberty and freedom.” [51] at 12. In particular,

Plaintiff alleges that Howse, an Assistant Cook County States’ Attorney, “intentionally

misrepresented the law and possible prison time the Plaintiff could face to induce the Plaintiff to

accept the two year offered by the Court.” Id. (it is not clear what “two year offer” or proceeding

Plaintiff is referring to). Foxx (who is currently Cook County State’s Attorney but was not in

office when Plaintiff was convicted of failure to register in 2012) allegedly “has created an

unconstitutional custom, policy and practice” by “allowing her subordinates to lie, make false

arguments and misrepresent the facts in the prosecution of the Plaintiff by failing, refusing and

insuring due process, fairness and truthfulness is being constitutionally enforced.” Id. at 13.

Johnson, CPD’s former Superintendent, allegedly “allowed threats, abuse and threats of

punishment, to deprive the plaintiff of his procedural due process rights by his subordinates” at the

“35th Street Station Registry Department” in Chicago. Id. at 14. Madigan, the former Illinois

Attorney General, allegedly “knew the Plaintiff was suffering abusive unconstitutional practice at

the direct hands of the Illinois State Police.” Id. at 15. Schmitz, the former Director of the Illinois

State Police, allegedly “created or allowed a custom, policy and practice that forced the Plaintiff

to abide the registry requirements out of abuse.” Id. Finally, Willis—who was Plaintiff’s public

defender and is now a Cook County Circuit Judge—allegedly “conspire[ed] to deprive[] Plaintiff

of his constitutional right to a trial and impartial trial or hearing.” Id. at 16. Plaintiff brings all of

his claims against all Defendants in both their official and individual capacities. Plaintiff seeks

“removal from the sex offenders attachments and requirements” and a total of “$1.230 billion

dollars” in monetary damages. Id. at 17-19.

II. Motions to Dismiss

A. Legal Standard

Defendants’ motions to dismiss are brought pursuant to Rules 12(b)(5) and 12(b)(6) of the

Federal Rules of Civil Procedure. Rule 12(b)(5) is used to enforce rules governing service of

process. The plaintiff has the burden to prove that the defendant was properly served such that the

court obtained personal jurisdiction. Luxottica Group S.p.A. v. Partnerships & Unincorporated

Associations Identified on Schedule “A”, 391 F. Supp. 3d 816, 821 (N.D. Ill. 2019); see also

Paulsen v. Abbott Labs., 368 F. Supp. 3d 1152, 1163 (N.D. Ill. 2019). “If the Court determines

that the plaintiff has not met that burden and lacks good cause for not perfecting service, the Court

must either dismiss the suit or specify a time within which the plaintiff must serve the defendant.”

Id. (citing Fed. R. Civ. P. 4(m)). This decision is “inherently discretionary” and can be made based

on affidavits and other documentary evidence. Id.

A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. For purposes of

a motion to dismiss under Rule 12(b)(6), the Court “‘accept[s] as true all of the well-pleaded facts

in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.’” Calderon-

Ramirez, 877 F.3d at 275 (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir.

2016)). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must allege

facts which, when taken as true, “‘plausibly suggest that the plaintiff has a right to relief, raising

that possibility above a speculative level.’” Cochran v. Illinois State Toll Highway Auth., 828 F.3d

597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir.

2007)). The Court reads the Complaint and assesses its plausibility as a whole. See Atkins v. City

of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). It is also proper for the Court to “consider, in

addition to the allegations set forth in the complaint itself, documents that are attached to the

complaint, documents that are central to the complaint and are referred to in it, and information

that is properly subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir.

2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir.2012)); see also Fed. R.

Civ. P. 10(c).

Plaintiff is proceeding pro se. The Seventh Circuit has explained that a district court has

“‘a special responsibility to construe pro se complaints liberally and to allow ample opportunity

for amending the complaint when it appears that by so doing the pro se litigant would be able to

state a meritorious claim.’” Kiebala v. Boris, 928 F.3d 680, 684 (7th Cir. 2019) (quoting Donald

v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996)). “In addition to viewing a ‘pro

se complaint with an understanding eye,’ a district court may point a pro se litigant toward the

correct procedure or ‘take appropriate measures to permit the adjudication of pro se claims on the

merits.’” Id. That said, the “court is not to become an advocate” and is “not charged with seeking

out legal ‘issues lurking within the confines’ of the pro se litigant’s pleadings.” Id. at 684-85

(quoting Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir. 1982)).

B. Analysis

1. Former Police Superintendent Johnson [58]

Former Police Superintendent Johnson moves to dismiss the Complaint based on Plaintiff’s

failure to serve him with summons in the manner required by Federal Rule of Civil Procedure 4,

as well as based on Plaintiff’s failure to state a claim.

“Every defendant must be served with a copy of the complaint and summons in accordance

with Rule 4.” Luxottica, 391 F. Supp. 3d at 821 (citing Fed. R. Civ. P. 4(b), 4(c)(1)). Only proper

service vests a district court with personal jurisdiction over a defendant. Cardenas v. City of

Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). Thus, “actual knowledge of the existence of a

lawsuit is insufficient to confer personal jurisdiction over a defendant in the absence of valid

service of process.” Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991).

In his response to Defendants’ motions to dismiss [65], Plaintiff does not address the issue

of sufficiency of service. Plaintiff filed a “proof of service” verifying that a copy of the Complaint

was sent to Johnson by U.S. mail, addressed to “c/o Michele Marie McGee 30 North LaSalle, Suite

900, Chicago IL 60602.” [56] at 1-2. As best the Court can tell from this filing, Plaintiff did not

properly serve the Complaint and summons on Johnson and therefore cannot meet his burden of

demonstrating that service was proper. The Court comes to the same conclusion whether it

considers the claims against Johnson in his individual capacity or his official capacity as a

representative of the City.

Rule 4(e) provides that an individual within a judicial district of the United States may be

served by: “(1) following state law for serving a summons in an action brought in courts of general

jurisdiction in the state where the district court is located or where service is made; or (2) doing

any of the following: (A) delivering a copy of the summons and of the complaint to the individual

personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with

someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an

agent authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e).

Plaintiff did not use any of the methods specified in Rule 4(e)(2); he did not deliver the summons

and complaint to Johnson personally; he did not leave a copy of the complaint at Johnson’s home;

and he did not deliver a copy to an agent authorized to accept service for Johnson. Instead, he

used U.S. mail to send the complaint to Ms. McGee (whom Plaintiff presumably identified an

appropriate person to accept service on Johnson’s and/or the City’s behalf).

The method used by Plaintiff also was not authorized by Illinois state law, and thus does

not fall under Rule 4(e)(1), either. In Illinois, summons may be served on an individual “(1) by

leaving a copy of the summons with the defendant personally,” or “(2) by leaving a copy at the

defendant’s usual place of abode, with some person of the family or a person residing there, of the

age of 13 years or upwards, and informing that person of the contents of the summons, provided

the officer or other person making service shall also send a copy of the summons in a sealed

envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode.”

735 ILCS 5/2-203(a). Plaintiff has not demonstrated that he served Johnson in accordance with

this provision, as he never contends that he made any attempt to leave a copy of the summons with

Johnson personally or anyone at Johnson’s home. Rather, he used U.S. mail, which is not a method

authorized by Rule 4. See Fed. R. Civ. P. 4(e); see also Sullivan v. Mitchell, 151 F.R.D. 331, 333-

34 (N.D. Ill. 1993) (plaintiff could not show good cause for failing to effect timely service on

defendant where, after attempt to serve defendant by certified mail proved unsuccessful, plaintiff’s

counsel unsuccessfully attempted to serve defendant by regular mail, did not hire process server

until a few days before expiration of time to serve, and did not move for extension of time); Walton

v. Lyons, 962 F. Supp. 126, 128 (C.D. Ill. 1997) (“The Federal Rules of Civil Procedure do not

permit service of the summons and complaint by first class, or even certified, mail.”).3

Plaintiff’s attempt at service fares no better when the Court construes the claims against

Johnson is his official capacity as claims against the City. See Gibson v. City of Chicago, 910

F.2d 1510, 1519 n.14 (7th Cir. 1990) (“An official capacity suit against a municipal official is

merely another way of asserting a claim against the municipality.”). Rule 4(j) provides that any

“state-created governmental organization that is subject to suit must be served by: (A) delivering

a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of

each in the manner prescribed by that state’s law for serving a summons or like process on such a

defendant.” Fed. R. Civ. P. 4(j)(2). Under Illinois law, in “actions against public, municipal,

governmental or quasi-municipal corporations, summons may be served by leaving a copy … with

the mayor or city clerk in the case of a city … and with the president or clerk or other officer

corresponding thereto in the case of any other public, municipal, governmental or quasi-municipal

3 Instead of attempting service by U.S. mail, Plaintiff could have requested that Defendants waive service,

as provided in Rule 4(d). A request for waiver of service must be “sent by first-class mail or other reliable

means.” Fed.R.Civ.P. 4(d)(1)(G); see also https://www.ilnd.uscourts.gov/_assets/_documents/

_forms/_online/ao398.pdf (form to be used to request waiver of service of summons).

corporation or body.” 735 ILCS 5/2-211. Plaintiff has not demonstrated that he served Johnson

in accordance with these provisions. His “proof of service” indicates that he mailed the summons

and complaint to McGee via U.S. mail.

Based on Plaintiff’s unexplained failure to perfect service, the Court must either dismiss

the suit or specify a time within which the plaintiff must serve the defendant. Fed. R. Civ. P. 4(m).

Because Plaintiff’s claims against Johnson are also substantively deficient—for the reasons

explained below—the Court will dismiss the claims and give Plaintiff until June 26, 2020 to file a

motion for leave to file a second amended complaint to the extent he is able to do so consistent

with this opinion and Rule 11. If Plaintiff’s motion for leave is granted, the Court will then provide

Plaintiff adequate time to serve the summons and proposed second amended complaint on Johnson

in accordance with Rule 4 and the explanation provided above.

Johnson argues that he should not have been sued in his official capacity because “there is

no longer a need to bring official-capacity actions against local government officials,” as “local

government units can be sued directly for damages and injunctive or declaratory relief.” [58] at 5

(citing Kentucky v. Graham, 473 U.S. 159, 166 n.14 (1985)). Although courts routinely dismiss

official capacity claims against municipal officials when the claims are duplicative of the

plaintiff’s claims against the municipality, see, e.g., Jungels v. Pierce, 825 F.2d 1127, 1129 (7th

Cir. 1987), Davis v. Village of Hazel Crest, 2018 WL 835224, at *3 (N.D. Ill. Feb. 13, 2018), in

this case Plaintiff does not separately name the City as a defendant. The Court will therefore

construe the official capacity claim against Johnson as a claim against the City.

Regardless of which name should appear in the caption, the claim is subject to dismissal

because Plaintiff does not identify any City or CPD policy that caused his alleged constitutional

injury. Rather, his complaint seems to be that because SORA’s registration requirement is

unconstitutional, the City must also have violated his constitutional rights by enforcing state law.

However, “[a] municipality is subject to § 1983 liability only if one of its policies caused the

constitutional injury.” Vasquez v. Foxx, 895 F.3d 515, 519 (7th Cir. 2018). Thus, “[a]

municipality’s enforcement of a state law does not constitute an actionable official policy.” Id.

(City could not be held liable on convicted child sex offenders’ § 1983 claims for violations of due

process, the Takings Clause, and the Ex Post Facto Clause based on city police officers’

enforcement of state law prohibiting offenders from residing within 500 feet of day-care home,

where police department did not enforce a city ordinance or other municipal policy, and offenders

failed to establish causal connection between city’s monitoring of sex offenders’ compliance with

state law and offenders’ alleged constitutional injury).

Plaintiff’s individual capacity claim against Johnson is deficient, as well. “To succeed on

a claim for supervisory liability” against a supervisory employee like Johnson, “a plaintiff must

show that the supervisor was personally involved in the constitutional violation.” Gill v. City of

Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). “That means the supervisor ‘must know about the

conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he] might

see.’” Id. (quoting Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)); see also

Doe v. Purdue Univ., 928 F.3d 652, 664 (7th Cir. 2019) (“Section 1983 ‘does not allow actions

against individuals merely for their supervisory role of others.’” (quoting Zimmerman v. Tribble,

226 F.3d 568, 574 (7th Cir. 2000))).

The complaint does not provide a coherent explanation of the unconstitutional actions

Johnson’s subordinates allegedly took or how Johnson facilitated, approved, condoned, or turned

a blind eye to his subordinates’ conduct. Plaintiff alleges that Johnson “allowed threats, abuse and

threats of punishment, to deprive the plaintiff of his procedural due process rights by his

subordinates” at the “35th Street Station Registry Department” in Chicago. [51] at 14. But this

does not tell the Court what Johnson’s subordinates actually did: What threats did they make?

What abusive conduct did they engage in? What procedures was he denied? When, where, and

by whom? As far as the Court can tell, Plaintiff’s complaint is that CPD officers required him to

follow SORA and register as a sex offender. Even if Plaintiff could demonstrate that SORA is

unconstitutional, Johnson would nonetheless be entitled to qualified immunity under the facts

alleged here (assuming he does not waive the defense) unless Plaintiff could somehow show that

it was clearly established that it violates one or more constitutional rights to enforce a state sex

offender registration law that has never been declared unconstitutional. See generally Holleman

v. Zatecky, 951 F.3d 873, 877 (7th Cir. 2020) (“Qualified immunity is an affirmative defense, but

once it is raised the burden shifts to the plaintiff to defeat it. To overcome qualified immunity, the

facts viewed in the light most favorable to [the plaintiff] must show that the defendant[s] violated

a constitutional right and that the right was clearly established at [that] time.” (citation and

quotation marks omitted)). Plaintiff could not satisfy this burden on the facts alleged. See Neita

v. City of Chicago, 830 F.3d 494, 499 (7th Cir. 2016) (“An official who reasonably relies on a

facially valid state law may be entitled to qualified immunity if his conduct is later challenged.”).

Johnson, along with the other Defendants, also moves to dismiss the Complaint on statute

of limitations grounds. “A § 1983 claim borrows the statute of limitations for analogous personal-

injury claims in the forum state; in Illinois that period is two years.” Lewis v. City of Chicago, 914

F.3d 472, 478 (7th Cir. 2019). “But federal law determines when the claim accrues.” Id.

Defendants all maintain that Plaintiff’s claims accrued when he was prosecuted for failing to

register under SORA in 2012—seven years before Plaintiff filed his lawsuit. However, other than

a brief citation by Madigan and Schmitz to a case that is currently on appeal,4 the parties do not

discuss whether the continuing violation doctrine or any equitable tolling theories might apply to

Plaintiff’s claims. Given this—along with the general proposition that courts should “refrain[]

from dismissing claims on the basis of an affirmative defense, such as the statute of limitations,”

Bland v. Edward D. Jones & Co., L.P., 375 F. Supp. 3d 962, 985 (N.D. Ill. 2019), as well as the

fact that Plaintiff’s claims are subject to dismissal for multiple other reasons—the Court finds it

inadvisable to opine on the statute of limitations issue at this juncture. Should Plaintiff be given

leave to file a second amended complaint, and should Defendants again move to dismiss, they are

free to assert the statute of limitations argument again.

2. Former Illinois Attorney General Madigan and Former Director of

the Illinois State Police Leo Schmitz [59]

Madigan and Schmitz move to dismiss all of Plaintiff’s claims under Rule 12(b)(6). Their

motion is granted. First, Plaintiff’s claims for monetary damages against Madigan and Schmitz in

their official capacities are barred by the Eleventh Amendment. See Council 31 of the American

Federation of State, County &Municipal Employees, AFL-CIO v. Quinn, 680 F.3d 875, 881–82

(7th Cir. 2012) (“[i]f properly raised, the amendment bars actions in federal court against a state,

state agencies, or state officials acting in their official capacities”).

Second, Plaintiff has not alleged a viable due process claim. He fails to allege any facts

concerning how he was denied due process. Plaintiff’s underlying 1989 conviction for aggravated

criminal sexual assault remains on his record and has never been overturned. See Lee, 584 N.E.2d

4 See [60] at 11-12; Johnson v. Newton, 2019 WL 2357005, at *4 (N.D. Ill. June 4, 2019) (finding that

Plaintiff’s claims under 42 U.S.C. §1983 alleging that he was wrongfully and coercively classified as a sex

offender were barred by the two-year statute of limitations and that the continuing violation doctrine did

not apply because registration requirements were continuing effects not violations), currently on appeal,

Case No. 19-2261 (7th Cir.).

at 186 (appellate court decision showing Plaintiff appealed only his convictions for attempted

murder and armed robbery). Plaintiff also acknowledges that he received a hearing when he was

prosecuted for failing to register as a sex offender in 2012. See [1] at 6-7. Plaintiff was not entitled

to a separate hearing to determine that he was required to register as a sex offender, because his

status as a sex offender “was established after a procedurally safeguarded proceeding”—“the

criminal proceedings” in which a jury found him guilty of aggravated criminal sexual assault. See

Murphy v. Rychlowski, 868 F.3d 561, 566 (7th Cir. 2017) (sex offender whose conviction for rape

by force mandated lifetime registration in California was not entitled as matter of due process to

pre-registration hearing and opportunity to show that Wisconsin Department of Corrections should

not have required him to register as sex offender while residing in Wisconsin, where

offender’s registration status in California was established after procedurally safeguarded criminal

proceedings); Steward v. Folz, 190 Fed. Appx. 476, 479 (7th Cir. 2006) (“the Supreme Court has

instructed that when conviction for a listed sex crime triggers registration in a sex offender registry,

the procedural protections afforded the defendant prior to conviction are sufficient to establish the

defendant’s duty to register” (citing Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003)).

Third, Plaintiff fails to state a claim for violation of the Double Jeopardy Clause or the Ex

Post Facto Clause. To establish a claim for violation of either clause, Plaintiff must establish that

SORA’s registration requirement is punitive. See, e.g., Vasquez v. Foxx, 895 F.3d 515, 520 (7th

Cir. 2018) (“a statute is not an impermissible ex post facto law unless it is both retroactive and

penal”); Smith v. Doe, 538 U.S. 84, 97 (2003) (sex offender registration statutes do not violate

the ex post facto clause if their aims are not punitive); Steward, 190 Fed. Appx. at 479 (“when a

sex offender registry like Indiana’s is enacted as a civil, non-punitive notification scheme,

mandatory registration of convicted sex offenders does not constitute a criminal punishment in

violation of the double jeopardy clause”). Plaintiff cannot do so, however, because “[b]oth the

Illinois and federal courts have routinely upheld registration acts against such constitutional

challenges.” Turner v. County of Cook, 2005 WL 3299822, at *13 (N.D. Ill. Dec. 2, 2005) (citing

Smith v. Doe, 538 U.S. 84 (2003) (retroactive application of Alaska sex offender registration act

does not violate ex post facto clause); Kansas v. Hendricks, 521 U.S. 346 (1997) (involuntary

commitment as sexually violent predator pursuant to Kansas statute not unconstitutional, and does

not constitute criminal punishment or violate Double Jeopardy prohibition or the ex post facto

clause); People v. Cornelius, 821 N.E.2d 288 (Ill. Sup. 2004) (internet dissemination provisions

of SORA do not violate constitutional right to privacy or substantive due process, nor do they

violate equal protection principles or constitute punishment in violation of the ex post facto

clause); People v. Malchow, 739 N.E.2d 433 (Ill. 2000) (rejecting constitutional challenges to

SORA based on the ex post facto clause, cruel and unusual punishment prohibition, right to

privacy, double jeopardy prohibition, and due process and equal protection clauses)).

According to the Illinois Supreme Court, the purpose of SORA’s requirement that a person

convicted of aggravated criminal sexual abuse prior to enactment of SORA register with police as

sex offender is to enhance public safety, not to punish the offenders required to register, and

therefore does not violate federal or state constitutional prohibits on ex post facto laws or double

jeopardy. Malchow, 739 N.E.2d at 438, 442; see also Lesher v. Trent, 944 N.E.2d 479, 483–84

(Ill. App. 2011) (“The [Illinois] supreme court has long held that the requirement of registration

under [SORA] does not constitute punishment.” (citing People v. Adams, 581 N.E.2d 637, 641

(Ill. Sup. 1991)); Johnson v. Rauner, 2016 WL 3917372, at *2–3 (N.D. Ill. July 2, 2016) (holding

that SORA’s registration requirement does not trigger constitutional prohibitions of ex post facto

laws or double jeopardy because “the registration requirement is not punitive”); Doe v. Biang,

494 F. Supp. 2d 880, 887 (N.D. Ill. 2006) (Illinois Sex Offender and Child Murderer Community

Notification Law’s resemblance to early punishment of colonial shaming through provision

permitting distribution of flyers containing sex offender’s picture, conviction, and other identifying

information, while a factor considered in ex post facto analysis, was insufficient to show

notification law violated ex post facto clause, in light of legislative intent of creating a civil law,

and not punishment, and the general presumption of constitutionality afforded state statutes); cf.

Mueller v. Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014) (requirements of Wisconsin’s

monitoring act that Wisconsin sex offenders continually update information supplied to the sex

offender registry were not punitive requirements, and therefore did not trigger the constitutional

prohibition of ex post facto laws); Steward, 190 Fed. Appx. at 479 (mandatory registration of

convicted sex offender under Indiana’s Sex Offender Registration Act, which is a civil and non-

punitive notification scheme, did not constitute a criminal punishment in violation of the double

jeopardy clause).

Fourth, Plaintiff fails to state a claim for violation of the Equal Protection Clause. The

Complaint alleges that the sex offender statute arbitrarily deprives him of freedom and liberty by

“shaming” him, denying him “self esteem,” and “publicly labeling” him a sexual predator. See

[51] at 9-10. However, the Complaint fails to allege any facts plausibly suggesting that Plaintiff

was discriminated against under either rational basis review or a “class of one” theory. See

Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992) (plaintiff must allege “facts

sufficient to overcome the presumption of rationality that applies to government classifications”).

“Under the ‘rational basis’ test, Plaintiff[] must allege that (1) Defendants treated [him] differently

from other similarly situated individuals; (2) because of [his] status as [a] sex offender[]; and (3)

this differential treatment was not rationally related to a legitimate government interest.” Derfus

v. City of Chicago, 42 F. Supp. 3d 888, 896–97 (N.D. Ill. 2014). Similarly, to prevail on a “class

of one” theory, Plaintiff must demonstrate that there he has been “intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in treatment.”

Frederickson v. Landeros, 943 F.3d 1054, 1060 (7th Cir. 2019).

Plaintiff fails to allege any facts suggesting that he “he was treated less favorably than other

similarly situated persons or groups—an essential element of the equal protection analysis.”

Addison v. Newton, 2015 WL 7713540, at *3 (S.D. Ill. Nov. 30, 2015) (dismissing equal protection

challenge to SORA’s registration requirement where plaintiff failed to allege “that the law is being

applied differently to those similarly situated to him”); see also Malchow, 714 N.E.2d at 679

(rejecting undeveloped equal protection challenge to SORA’s registration and notification

requirements); cf. Derfus, 42 F. Supp. 3d at 897 (dismissing equal protection claim brought by

class of plaintiffs who were subject to sex offender registration requirements, where plaintiffs

“failed to allege that the City had no rational basis for treating homeless sex offenders differently

than non-homeless sex offenders so as to overcome the presumption of rationality”).

Further, Plaintiff has not pled any facts suggesting that Defendants enforced the sex

offender registration requirements against him (as they were required to do by law) simply out of

personal animus. If Plaintiff could show that Defendants somehow made it impossible for him to

comply with SORA, exposing him to criminal liability for failing to register, he might have a

claim. Compare Frederickson, 943 F.3d at 1064 (police officer’s alleged conduct in preventing

homeless sex offender from complying with the weekly sex offender registration requirements

under SORA and harassing offender, without a rational basis and because of officer’s alleged

personal dislike of the offender, could support offender’s § 1983 class-of-one equal protection

claim). But that is not what Plaintiff alleges here. His complaint appears to be with the statute on

its face, not its application to him by Defendants.

Plaintiff’s remaining claims are even more clearly deficient, and require little discussion.

Plaintiff has not pled a Fourth Amendment claim, because he has not alleged any facts suggesting

that the application of SORA allows him to suffer unreasonable searches and seizures or that he

has suffered any unreasonable searches or seizures. See generally Graham v. Connor, 490 U.S.

386 (1989). Plaintiff also does not state a Fifth Amendment claim. Although the Complaint asserts

that requiring Plaintiff to comply with SORA “has caused [his] private property to be taken and

used for public use, without approval or compensation,” [51] at 11, it does not allege any facts to

support this legal conclusion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“the tenet that a

court must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions”). Finally, Plaintiff’s individual capacity claims against Madigan and Schultz must

be dismissed because Plaintiff does not plausibly allege that these Defendants were personally

involved in any unconstitutional conduct. See Wilson v. Warren County, 830 F.3d 464, 469 (7th

Cir. 2016) (explaining that a defendant is personally responsible under § 1983 for the deprivation

of the plaintiff’s rights “if the conduct causing the constitutional deprivation occurs at his direction

or with his knowledge and consent”).

3. Cook County State’s Attorney Kim Foxx [62]

State’s Attorney Foxx moves to dismiss based on insufficiency of service and failure to

state a claim. Plaintiff’s service on Foxx was deficient for the same reasons that his service on

Johnson was deficient: he sent the complaint via U.S. mail, rather than in accord with Federal Rule

of Civil Procedure 4. See Fed. R. Civ. P. 4(e), (j); Sullivan, 151 F.R.D. at 333-34; Walton, 962 F.

Supp. at 128. Because Plaintiff’s claims against Foxx are also substantively deficient—for the

reasons explained below—the Court will dismiss the claims and give Plaintiff until June 26, 2020

to file a motion for leave to file a second amended complaint to the extent he is able to do so

consistent with this opinion. As noted above, if that motion is granted, the Court will give Plaintiff

time to serve the summons and proposed second amended complaint on Foxx.

Plaintiff’s individual capacity claims against Foxx are deficient because Plaintiff does not

allege any facts indicating that Foxx was personally involved in any unconstitutional conduct,

either “at h[er] direction or with h[er] knowledge and consent.” Wilson, 830 F.3d at 469. Foxx

was not elected until 2016, long after Plaintiff’s 2012 arrest and prosecution for failure to register

under SORA.

Plaintiff’s official capacity claims against Foxx is also deficient because the Eleventh

Amendment prohibits courts from deciding suits brought by private litigants against states or their

agencies, including state’s attorneys. See Parker v. Lyons, 757 F.3d 701, 706 (7th Cir. 2014)

(plaintiff’s claims for damages against county state’s attorney in his official capacity were barred

by the Eleventh Amendment); Hernandez v. Joliet Police Dep’t, 197 F.3d 256, 265 (7th Cir. 1999)

(former police officer’s § 1983 claim against state’s attorney’s office was barred by Eleventh

Amendment). “Ex parte Young recognized what has become one of several well-established

exceptions to the Eleventh Amendment bar on suing states in federal court, permitting private

citizens to sue state officials in their official capacities to require them to comply with federal law

on an ongoing basis.” McDonough Associates, Inc. v. Grunloh, 722 F.3d 1043, 1049–50 (7th Cir.

2013). However, the Ex parte Young exception does not apply under the facts alleged in the

Complaint because, for the reasons explained above, the allegations do not plausibly suggest that

Defendants’ enforcement of SORA’s registration requirement violates any of Plaintiff’s rights

under the United States Constitution. The Court can discern no other exceptions to the Eleventh

Amendment bar that might apply under the facts alleged, such as consent by the State to be sued,

or abrogation by Congress of the states’ traditional immunity. See de Lima Silva v. Dep’t of

Corrections, 917 F.3d 546, 565 (7th Cir. 2019); Aku v. Chicago Bd. of Ed., 290 F. Supp. 3d 852,

864 (N.D. Ill. 2017).

4. Assistant Cook County State’s Attorney Howse [89]

Howse moves to dismiss Plaintiff’s claims against her in part on the basis on absolute

prosecutorial immunity. “Prosecutors are absolutely immune from federal tort liability for actions

they take as prosecutors carrying out their prosecutorial duties,” including “‘acts undertaken by a

prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the

course of his role as an advocate for the State.’” Serrano v. Guevara, 315 F. Supp. 3d 1026, 1034

(N.D. Ill. 2018) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). Plaintiff’s only

factual allegation against Howse concerns an act she undertook in the course of her role as an

advocate for the state: stating for the record the potential sentence Plaintiff could receive if

convicted (presumably, of failing to register under SORA, although the Complaint is not clear).

See [51] at 12 (alleging that Howse, “in open court” and “for the public record,” “intentionally

misrepresented the law and possible prison time the Plaintiff could face to induce the Plaintiff to

accept the two year offered by the Court”). Therefore, under the facts alleged, Plaintiff’s claims

against Howse are barred by prosecutorial immunity.

Plaintiff’s damages claims against Howse in her official capacity are deficient for the

additional reason that they are barred by the Eleventh Amendment. See Manos v. Caira, 162

F.Supp.2d 979, 987 (N.D. Ill. 2001) (holding that plaintiff’s § 1983 “claim for damages against

the Assistants State’s Attorneys in their official capacity is jurisdictionally barred by the Eleventh

Amendment”).

5. Former Public Defender Willis [91]

Defendant Willis, who is now a Cook County Circuit Court judge, was Plaintiff’s public

defender during the time of the events in question. See [51] at 3. According to the Complaint,

Willis allegedly “conspir[ed] to deprive[] the Plaintiff of his constitutional right to a trial and

impartial trial or hearing.” Id. at 16. The Court agrees with Willis that Plaintiff fails to state any

claim against him because he has made only “conclusory statements untethered to facts,” [91] at

3—critical facts such as who Willis allegedly conspired with, what he allegedly did to further the

conspiracy, and how this deprived Plaintiff of his constitutional rights. Plaintiff’s claims against

Willis also must be dismissed because “a court-appointed public defender is not a state actor, and

thus cannot be sued under 42 U.S.C. § 1983.” McDonald v. White, 465 Fed. Appx. 544, 548 (7th

Cir. 2012).

III. Leave to Amend [105]

Plaintiff seeks leave to amend his complaint to include an “additional constitutional

violation” that he allegedly suffered. Plaintiff alleges that when he went to the CPD registry

department on December 9, 2019 to register under SORA, he was “denied once again to register

because [he] is indigent and unable to pay the $100.00 dollar fee” and “was instructed that the

waiver form given must be completed when [he] return to register.” [105] at 2. Plaintiff further

alleges that on January 8, 2020, he was “stripped of his liberty and freedom due to [his] indigency

status, and unable to pay the fee.” Id.

Although the Court must “freely give leave to amend a complaint ‘when justice so

requires,’” “it may deny leave to amend a complaint if the amendment would be futile.” Dubicz

v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004) (quoting Fed. R. Civ. P. 15(a)(2)).

The Court denies leave to amend in the manner requested by Plaintiff because he has not alleged

any facts that plausibly support the claim that his constitutional rights were violated. Plaintiff

acknowledges that on December 9, 2019, he was told that the fee for registering under SORA

would be waived if he completed a form demonstrating that he was indigent. However, Plaintiff

does not allege that he ever completed the form, or that he was improperly denied indigent status

after completing the form. Without this information, the Court cannot discern what Plaintiff

believes the registry office did wrong on December 9, 2019 or any other date, and whether this

constituted a violation of Plaintiff’s constitutional rights.

Further, to the extent that Plaintiff intends to argue that the $100 fee is a fine triggering the

constitutional prohibition of ex post facto laws, he fails to allege or imply that the fee is not

intended to compensate the state for the cost of maintaining the sex offender registry. The Court

notes that the Seventh Circuit has already determined that Wisconsin’s fee—which is also $100—

is not punitive. See Mueller v. Raemisch, 740 F.3d 1128, 1133-34 (7th Cir. 2014) (Wisconsin’s

$100 annual registration fee for convicted sex offenders was not punitive, and therefore did not

constitute a fine triggering the constitutional prohibition of ex post facto laws; fee was intended to

compensate the state for the expenses of maintaining the sex offender registry, and since the

offenders were responsible for the expense, there was nothing “punitive” about making them pay

for it).

IV. Miscellaneous Motions

Plaintiff’s motion for permission to start discovery [110] is denied. Plaintiff does not

indicate that there is any urgency to beginning discovery, Plaintiff does not currently have a viable

complaint on the docket, and several of the Defendants were never properly served. If Plaintiff is

able to identify a viable claim, then discovery will be allowed to proceed.

Plaintiff’s request to admit [114] is stricken. Discovery remains stayed. To the extent the

stay is lifted, Plaintiff must serve the discovery on Defendants directly, rather than file it with the

Court.

V. Conclusion

For these reasons, all of Defendants’ motions to dismiss, [58], [59], [62], [89], and [91],

are granted and Plaintiff's Complaint is dismissed in its entirety. Plaintiff's request to amend

complaint [105] and request for permission to start discovery [110] are both denied and Plaintiff's

request for Defendants to admit [114] is stricken. Plaintiff is given until June 26, 2020 to file a

motion for leave to file a second amended complaint, to the extent he can do so consistent with

this opinion and Rule 11. See Fed. R. Civ. P. 11. Plaintiff must attach to his motion the second

amended complaint that he seeks to file, and all documents must be served on Defendants in

compliance with Federal Rule of Civil Procedure 4.

Dated: May 13, 2020

Robert M. Dow, Jr.

United States District Judge

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