Westbrooks v. Inv. Ansted 119

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOCK WESTBROOKS,

Plaintiff,

v.

No. 20-cv-04865

INV. ANSTED #119, INV. McCARTER

#963, INV. WASHINGTON #774, INV. Judge John F. Kness

DEVOGELVEAR #738, COOK

COUNTY, and SHERIFF THOMAS J.

DART, in his official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

This case concerns a traffic stop by law enforcement during which certain

investigators are alleged to have planted evidence again Plaintiff. In an amended

complaint, Plaintiff asserts that Defendants’ conduct violated Section 1983 and

various state tort law doctrines. Now before the Court is Defendants’ Motion to

Dismiss Count VII (per se libel and slander) and Count IX (respondeat superior) of

Plaintiff’s Second Amended Complaint. For the reasons that follow, Defendants’

motion to dismiss is granted in part and denied in part.

Defendants’ motion to dismiss Count VII is denied to the extent it asserts that

the words of the amended complaint fail to set forth a viable claim; it is granted as to

any statements Defendants made to law enforcement for the purpose of conducting

legal proceedings because those statements were absolutely privileged under state

law. Count VII is also dismissed as to Defendants McCarter, Washington, and

Devogelvear, who are protected by qualified immunity. Count VII may, however,

proceed against Defendant Ansted to the extent Plaintiff relies on Defendant Ansted’s

allegedly defamatory statements. Finally, the motion to dismiss Count IX is denied

because it appropriately relates back to Plaintiff’s original complaint.

I. BACKGROUND

On November 5, 2019, Plaintiff Jock Westbrooks was driving a vehicle in Ford

Heights, Illinois. (Dkt. 25 ¶ 11.) As set forth in the Second Amended Complaint,

Defendant Investigator Ansted (Star #119), Defendant Investigator McCarter (Star

#963), Defendant Investigator Washington (Star #774), and Defendant Investigator

Devogelvear1 (Star #738) (together the “Investigator Defendants”), all of whom were

employed as investigators by the Cook County Sheriff’s Office, “stopped, detained,

and searched” Plaintiff. (Id. ¶¶ 4–7; 12.) Plaintiff asserts that, because he was not

violating any local, state, or federal law at the time, the stop was effected “without

probable cause or any reasonable belief that criminal activity was afoot” and as the

consequence of the Investigator Defendants “acting in concert” with one another. (Id.

¶¶ 12, 13.)

Plaintiff alleges that, as his vehicle was being searched, Defendant Ansted

dropped a small packet of a controlled substance onto the floor of Plaintiff’s vehicle.

(Id. ¶ 14.) Defendant Ansted then announced to the other Investigator Defendants

1 The pleadings inconsistently spell this Defendant’s name either as “Devogelvear” or

“Devogelear.” For consistency across this Memorandum Opinion and Order, the Court will

use the first spelling of “Devogelvear,” which appears to be more commonly used in the

parties’ pleadings and briefings.

that he had found unlawful controlled substances in Plaintiff’s vehicle. (Id.) Plaintiff

states that Defendant Ansted’s actions were recorded on his body cam. (Id.)

At that point, the Investigator Defendants arrested Plaintiff on a charge of

possessing a controlled substance. (Id. ¶ 15.) Plaintiff alleges that he was “treated

roughly” by the Investigator Defendants and “sustained physical injury” as a result.

(Id.) Plaintiff was held in custody for twenty-one hours before being released. (Id.

¶ 16.) Plaintiff states that he went to court to defend himself from this charge, where

he demanded production of the body cam recording. (Id. ¶¶ 17, 18.) Plaintiff alleges

that the attorney prosecuting the case refused to produce the footage and instead

dismissed all charges against Plaintiff. (Id. ¶ 19.)

Plaintiff now brings this Section 1983 lawsuit against the Investigator

Defendants in their individual capacities; Defendant Cook County, specifically its

Cook County Sheriff’s Office department; and Thomas J. Dart, Sheriff of Cook

County, in his official capacity. (See Dkt. 25 (Second Amended Complaint).) In a joint

motion, the Investigator Defendants and Defendant Dart move to dismiss Counts VII

and IX of the Second Amended Complaint. (Dkt. 27.) Count VII alleges a state law

claim of per se slander and libel against the Investigator Defendants. (Dkt. 25 ¶¶ 40–

48.) Count IX alleges a state law respondeat superior claim against Defendant Dart.

(Id. ¶¶ 52–54.) Defendants argue that Count VII fails to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure and that the Investigator Defendants

are entitled to immunity. (Dkt. 27 at 3–10.) Defendants argue that Count IX must be

dismissed because it is barred by the statute of limitations. (Id. at 10–13.)

II. STANDARD OF REVIEW

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to

state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Each complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put another

way, the complaint must present a “short, plain, and plausible factual narrative that

conveys a story that holds together.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774,

777 (7th Cir. 2022) (cleaned up). As the Seventh Circuit has emphasized, a plaintiff

need not “lay out every element or ingredient” of a claim to survive a Rule 12(b)(6)

motion. Thomas v. JBS Green Bay, Inc., 120 F.4th 1335, 1336 (7th Cir. 2024). Such

“details and proof” come later, and all a plaintiff must do is “state a grievance.” Id. at

1338. In evaluating a motion to dismiss, the Court must accept as true the complaint’s

factual allegations and draw reasonable inferences in the plaintiff’s favor. Iqbal, 556

U.S. at 678. But even though factual allegations are entitled to the assumption of

truth, mere legal conclusions are not. Id. at 678–79.

III. DISCUSSION

A. Count VII—Failure to State a Claim

In Count VII, Plaintiff alleges per se slander and libel against the Investigator

Defendants. (Dkt. 25 ¶¶ 40–48.) Defendants move to dismiss this Count and first

argue that Plaintiff has not sufficiently alleged a claim for per se libel and slander.

Under Illinois law, a statement is considered per se defamatory if its “defamatory

character is obvious and apparent on its face.” DeNicolo v. Hubbard Radio Chi., LLC,

No. 21-cv-6292, 2022 WL 17251278, at *3 (N.D. Ill. Nov. 28, 2022) (quoting Bd. of

Forensic Document Examiners, Inc. v. Am. Bar Ass’n, 922 F.3d 827, 831–32 (7th Cir.

2019)). A plaintiff making a claim for per se defamation must allege facts “showing

that the defendant made a false statement about the plaintiff, that the defendant

made an unprivileged publication of that statement to a third party, and that this

publication caused damages.” Osumdairo v. Glandian, 591 F. Supp. 3d 353, 357 (N.D.

Ill. 2022) (quoting Green v. Rogers, 917 N.E.2d 450, 459 (Ill. 2009)). Any act by which

“defamatory matter is communicated to someone other than the person defamed is a

publication.” Doctor’s Data, Inc. v. Barrett, 170 F. Supp. 3d 1087, 1137 (N.D. Ill. 2016)

(quoting Missner v. Clifford, 914 N.E.2d 540, 552 (Ill. 2009)). One of the five categories

of statements recognized by Illinois to be per se defamatory is, as alleged here, words

“that impute a person has committed a crime.” Green, 917 N.E.2d at 459.

Defendants contend that a per se defamation claim must be pleaded with a

“heightened level of precision and particularity.” (Dkt. 27 at 4 (quoting Keen v.

Bluestar Energy Servs., Inc., No. 11 C 7754, 2012 WL 1118215, at *4 (N.D. Ill. Mar.

30, 2012)).) Under this heightened standard, Defendants argue that Plaintiff has not

alleged detailed facts that plausibly show the Investigator Defendants made false

statements about Plaintiff and published those statements to a third party. (Id.

(quoting Osundairo v. Geragos, 447 F. Supp. 3d 727, 737 (N.D. Ill. 2020)).)

In support of their argument that they neither made false statements nor

published them, Defendants rely, inversely, on Adams v. Adkins, a 1998 defamation

action where the court in fact denied the defendants’ motion to dismiss a defamation

claim. (Dkt. 27 at 5–6.) Adams v. Adkins, No. 97 C 5981, 1998 WL 111632 (N.D. Ill.

Mar. 6, 1998). Defendants distinguish Adams and contend that, unlike the Adams

plaintiff, Plaintiff here did not “assert facts concerning the content of the false

allegations and the act of publishing the false allegations.” (Dkt. 27 at 6.)

But, as Plaintiff points out, Adams also held that the plaintiff’s allegations

about verbal statements and statements in police reports were sufficient to assert

plausible defamation claims. (Dkt. 31 at 3.) See Adams, 1998 WL 111632 at *6. Under

this standard, Plaintiff has sufficiently pleaded per se libel and slander. It is true that

Plaintiff has not specified exactly what defamatory words were said, but this

information is not accessible to Plaintiff without discovery. See id. Plaintiff’s

remaining allegations are sufficient at the motion to dismiss stage for this Court to

infer that (1) Defendants made a false statement about Plaintiff (see Dkt. 25 ¶ 14

(Defendant Ansted falsely announced that he found unlawful controlled substances

in Plaintiff’s vehicle)); (2) Defendants published that statement to a third party (see

Dkt. 25 ¶¶ 14, 42, 43 (Defendant Ansted made the statement verbally, Defendants

shared the accusation with prosecutors, and Defendant Cook County made the

accusation available in the public record)), and (3) the accusation caused Plaintiff

damages (Dkt. 25 ¶¶ 17, 45, 46 (Plaintiff suffered humiliation, lower self-esteem, and

a worsened reputation)). Defendant Ansted’s allegedly defamatory statement, along

with the accusation listed on police reports, fall squarely into the category of “words

that impute a person has committed a crime” recognized by Illinois as a per se

defamatory statement. Accordingly, Plaintiff has adequately pleaded per se slander

and libel.

B. Count VII—Immunity

Defendants next assert that, if this Court finds that Plaintiff plausibly stated

a per se libel and slander claim, it must still dismiss the claim because the

Investigator Defendants are protected by absolute privilege, qualified privilege, and

tort immunity under an Illinois tort immunity act. These arguments are addressed

in turn.

1. Absolute Privilege

Defendants contend that, because the purportedly defamatory statements

made by the Investigator Defendants to Defendant Cook County’s prosecutors were

for the purpose of instituting legal proceedings, they are protected by an absolute

privilege. (Dkt. 27 at 7.) Plaintiff counters that the absolute privilege cannot attach

to these statements because absolute privilege is meant to permit a publisher to

speak “fully and fearlessly” about a matter of social importance and in the public

interest. (Dkt. 31 at 7 (quoting Weber v. Cueto, 568 N.E.2d 513, 516 (Ill. App. Ct.

1991)).) Plaintiff maintains that there is no social importance or public interest in

permitting false police reports to be made and shared with prosecutors. (Id. at 8.)

Plaintiff is correct that the class of absolutely privileged communications is

“narrow,” limited mostly to “communications made in the discharge of a duty under

express authority of law.” Weber, 568 N.E.2d at 517. But Illinois law is clear that

statements made to law enforcement officials for the purpose of instituting legal

proceedings fall into this “narrow” class, thus making such statements absolutely

privileged. See Shea v. Winnebago Cnty. Sheriff’s Dep’t, 746 F. App’x 541, 547 (7th

Cir. 2018) (quoting Morris v. Harvey Cycle & Camper, Inc., 911 N.E.2d 1049, 1055

(Ill. App. Ct. 2009)); see also Vincent v. Williams, 664 N.E.2d 650, 655 (Ill. App. Ct.

1996) (“It has long been held that statements made to law enforcement officials, for

the purpose of instituting legal proceedings, are granted absolute privilege.”).

Plaintiff’s own allegations show that the relevant statements made by the

Investigator Defendants to Cook County prosecutors were for the purpose of

prosecuting Plaintiff. (See Dkt. 27 at 7; Dkt. 32 at 8.) Because they were made to law

enforcement officials for the purpose of instituting a legal proceeding against

Plaintiff, these statements are protected by absolute privilege. See Patterson v. Burge,

328 F. Supp. 2d 878, 902 (N.D. Ill. 2004) (the Cook County State’s Attorney’s office is

the leader of law enforcement). Accordingly, Plaintiff’s claim for per se slander and

libel is dismissed to the extent it relies on the absolutely privileged statements the

Investigator Defendants made to Cook County prosecutors for the purpose of

instituting legal proceedings.

2. Qualified Privilege

Further at issue is whether the Investigator Defendants are protected by a

qualified privilege relating to alleged defamatory statements. As the parties agree, a

qualified privilege exists when a defendant can show: (1) the statement was made in

good faith; (2) the defendant had an interest or duty to uphold; (3) the statement was

limited in its scope to that interest; (4) the statement was made at a proper occasion;

and (5) publication was in a proper manner and only to proper parties. (Dkt. 27 at 7;

Dkt. 31 at 5.) Kuwik v. Starmark Mktg. & Admin., Inc., 619 N.E.2d 129, 133 (Ill.

1993). Once a qualified privilege applies, a communication is actionable only if a

plaintiff “can show actual malice.” Davis v. John Crane, Inc., 633 N.E.2d 929, 937–38

(Ill. App. 1994). That term “looks as if it might mean ‘ill will’ but in fact means

knowledge the statement is false or reckless disregard of whether it is false.” Pippen

v. NBCUniversal Media, LLC, 734 F.3d 610, 612 (7th Cir. 2013).

Defendants argue that, because any statements they made “concerned

[Plaintiff’s] arrest and the surrounding circumstances,” the Investigator Defendants

are entitled to the application of a qualified privilege. (Dkt. 27 at 8.) Plaintiff responds

that, even if Defendants can establish all five elements, he has sufficiently pleaded

that Investigator Defendants intentionally published false statements knowing they

were false. (Dkt. 31 at 5.) Defendants first disagree with Plaintiff’s contentions to the

extent they include any Investigator Defendant other than Defendant Ansted,

arguing that Plaintiff only alleged that Defendant Ansted planted a controlled

substance. (Dkt. 32 at 4.) Defendants also argue that Plaintiff has not carried his

burden to show knowledge or a reckless disregard of falsity because Plaintiff has only

put forth “bare allegations that [Defendant] Ansted acted maliciously.” (Id. at 5.)

Defendants are correct that Plaintiff’s per se slander and libel claims cannot

proceed against Investigator Defendants McCarter, Washington, and Devogelvear

because Plaintiff has not alleged any facts supporting that those Defendants made

any statement about Plaintiff, much less an intentionally false statement or one made

with actual malice. But even if Defendants could successfully establish all five

elements of qualified immunity as to Defendants McCarter, Washington, and

Devogelvear, Plaintiff has met his burden to show that Defendant Ansted made a

statement to the other Investigator Defendants with knowledge or reckless disregard

that the statement was false. For example, Plaintiff alleges that Defendant Ansted

“dropped a small packet containing controlled substances” in Plaintiff’s vehicle,

announced “to his fellow officers that he found unlawful controlled substances,”

“fabricated evidence in order to arrest Plaintiff and procure Plaintiff’s prosecution,”

and “intended to subject Plaintiff to public humiliation.” (Dkt. 25 ¶¶ 41, 45.) These

pleaded facts preclude a finding of qualified privilege for Defendant Ansted at this

stage.

3. Local Governmental and Governmental Employees Tort Immunity

Act

Defendants argue at the last that the Investigator Defendants are immune

from liability under Illinois’s Local Governmental and Governmental Employees Tort

Immunity Act (the “Act”). Immunity under the Act is an affirmative defense. Doe I v.

Bd. of Educ. of City of Chi., 264 F. Supp. 849, 862 (N.D. Ill. 2019) (citing Van Meter

v. Darien Park Dist., 799 N.E.2d 273, 280 (Ill. 2003)). Although a plaintiff generally

need not overcome an affirmative defense in a complaint, plaintiffs can “effectively

plead themselves out of court by alleging facts sufficient to establish the affirmative

defense in the complaint itself, and, in such cases, dismissal is appropriate.” Id. at

863 (citing Sidney Hillman Health Ctr. of Rochester v. Abbot Labs, Inc., 782 F.3d 922,

928 (7th Cir. 2015)). A defendant “bears the burden of proving [the defendant] is

entitled to immunity under any provision of the Act.” Id. (citing Van Meter, 799

N.E.2d at 280).

Under the Act, a “public employee is not liable for his act or omission in the

execution or enforcement of any law unless such act or omission constitutes willful

and wanton conduct.” 745 Ill. Comp. Stat. 10/2-202. “Willful and wanton conduct”

under the Act is “a course of action [that] shows an actual or deliberate intention to

cause harm” or an “utter indifference to or conscious disregard for the safety or others

or their property.” Id. at § 10/1-210. In addition, the Act protects public employees for

an “injury caused by the act or omission of another person” when the employee is

acting “within the scope of his employment.” Id. at § 10/2-204.

Defendants argue that the Act protects the Investigator Defendants because

they “were engaged in law enforcement functions at the time any alleged defamatory

statements were made.” (Dkt. 27 at 10.) Because this Court has already held that any

statements made to Cook County prosecutors or for police reports are protected by

absolute immunity, the only remaining statement Plaintiff alleges to be defamatory

is the verbal statement made by Defendant Ansted that he found a controlled

substance in Plaintiff’s vehicle. Plaintiff alleges that Defendant Ansted planted a

packet of controlled substances in Plaintiff’s vehicle during the arrest and

subsequently announced his discovery of the packet; those assertions are sufficient

to plead that Defendant Ansted acted with willful and wanton conduct in conducting

Plaintiff’s arrest. Plaintiff thus did not “plead [himself] out of court.” See Doe I, 364

F. Supp. 3d at 862–63.

For these reasons, the Court grants in part and denies in part Defendants’

motion to dismiss Count VII. Defendants’ motion to dismiss Count VII for failure to

state a claim under Rule 12(b)(6) under the Federal Rules of Civil Procedure is denied.

Count VII will proceed against Defendant Ansted to the extent Plaintiff relies on

Defendant Ansted’s allegedly defamatory statements. But Count VII is dismissed to

the extent Plaintiff relies on any statements the Investigator Defendants made to law

enforcement for the purpose of conducting legal proceedings because those

statements are absolutely privileged. Moreover, Count VII is dismissed as to the

remaining Investigator Defendants (Defendants McCarter, Washington, and

Devogelvear) on the basis of the qualified and tort immunities analyzed above.

C. Count IX

In Count IX, Plaintiff alleges a respondeat superior claim against Defendant

Dart in his official capacity. (Dkt. 25 ¶¶ 52–54.) Defendants argue that Count IX must

be dismissed because Plaintiff did not assert this claim within the required one-year

statute of limitations under the Act. (Dkt. 27 at 10.) Under the Act, no civil action

“may be commenced in any court against a local entity or any of its employees for any

injury unless it is commenced within one year from the date that the injury was

received or the cause of action accrued.” 745 Ill. Comp. Stat. 10/8-101(a).

Defendants argue that Plaintiff’s arrest occurred on November 5, 2019, but

Plaintiff did not assert a respondeat superior claim against Defendant Dart until

Plaintiff filed his second amended complaint on April 13, 2021: more than one year

after the injury occurred. (Dkt. 27 at 10–11.) Plaintiff does not dispute that he raised

Count IX after the one-year statute of limitations expired. (See Dkt. 31 at 8–11.)

Plaintiff argues instead that, because Count IX relates back to Plaintiff’s original

complaint under Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure, it is not

barred by the statute of limitations. (Id. at 8.)

Rule 15 permits an amendment to relate back to the date of the original

pleading when

(C) the amendment changes the party . . . against whom a claim is

asserted . . . if . . . the party to be brought in by amendment: (i) received

such notice of the action that it will not be prejudiced in defending on

the merits; and (ii) knew or should have known that the action would

have been brought against it, but for a mistake concerning the proper

party’s identity.

Fed. R. Civ. P. 15(c)(1)(C). Plaintiff explains that he sent notice to the Cook County

Sheriff’s Office, of which Defendant Dart is the Sheriff, on February 24, 2020 advising

it of the facts of Plaintiff’s claim. (Dkt. 31 at 8.) Plaintiff filed the original complaint

and served the named Defendants several months later. (Id. at 8–9.) Plaintiff states

that, in February 2021, he was informed that the Cook County Sheriff’s Office was

an incorrect entity, after which Plaintiff filed a second amended complaint naming

Defendant Dart as a party. (Id. at 9.) Plaintiff argues that the amendment naming

Defendant Dart as a corrected party thus relates back to the original pleading under

Rule 15(c)(1)(C). Defendants counter that the amendment cannot relate back because

Plaintiff cannot show that Defendant Dart “knew or should have known of Plaintiff’s

desire to name him as a defendant.” (Dkt. 32 at 9.)

Plaintiff’s original complaint unambiguously named the Cook County Sheriff’s

Office as a defendant and asserted a respondeat superior claim against it. (Dkt. 1 at

1, 9–10.) Defendants do not dispute Plaintiff’s assertion that the Cook County

Sheriff’s Office received notice of this claim, nor do Defendants argue that Defendant

Dart would be prejudiced in defending this action. Construing the facts and

allegations in Plaintiff’s favor, the Court finds that with such a notice, Defendant

Dart, the Sheriff of Cook County, would have known or should have known that an

action may have been brought against him. It is also likely that Plaintiff mistakenly

sued the wrong party and only corrected the mistake upon learning of the correct

party’s identity, a circumstance contemplated by Rule 15(c)(1)(C) that allows relation

back. Accordingly, Count IX alleging respondeat superior claims against Defendant

Dart relates back to the date of the original pleading and thus is not barred by the

Act’s one-year statute of limitations. Defendants’ motion to dismiss Count IX is

denied.

IV. CONCLUSION

Defendants’ motion to dismiss Count VII and Count IX is granted in part and

denied in part. Defendants’ motion to dismiss Count VII for failure to state a claim is

denied. Count VII may proceed against Defendant Ansted to the extent Plaintiff relies

on Defendant Ansted’s statements. Count VII is dismissed to the extent Plaintiff

relies on any statements the Investigator Defendants made to law enforcement for

the purpose of conducting legal proceedings. Count VII is also dismissed as to

Investigator Defendants McCarter, Washington, and Devogelvear. Defendants’

motion to dismiss Count IX is denied.

SO ORDERED in No. 20-cv-04865.

Date: March 25, 2025 _ LBD Keune

JOHN F. KNESS

United States District Judge

15