Doe 8 v. Musselman

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JANE DOE 1, JANE DOE 2, JANE

DOE 3, JANE DOE 4, JANE DOE 5,

JANE DOE 6, and JANE DOE 7,

Plaintiffs, Case No. 1:23-cv-01035-JEH

v.

JASON R. MUSSELMAN, STEVEN

V. SLOAN, individually or as

SHERIFF OF STARK COUNTY,

ILLINOIS, COUNTY OF STARK,

ILLINOIS, GARY D. BENT,

individually or as CHIEF OF

POLICE OF TOULON, ILLINOIS,

and CITY OF TOULON, ILLINOIS,

Defendants.

JANE DOE 8,

Plaintiff,

Case No. 1:23-cv-01036-JEH

v.

JASON R. MUSSELMAN, STEVEN

V. SLOAN, individually or as

SHERIFF OF STARK COUNTY,

ILLINOIS, COUNTY OF STARK,

ILLINOIS, GARY D. BENT,

individually or as CHIEF OF

POLICE OF TOULON, ILLINOIS,

and CITY OF TOULON, ILLINOIS,

Defendants.

JANE DOE 9,

Plaintiffs,

v. Case No. 1:23-cv-01037-JEH

JASON R. MUSSELMAN, STEVEN

V. SLOAN, individually or as

SHERIFF OF STARK COUNTY,

ILLINOIS, COUNTY OF STARK,

ILLINOIS, GARY D. BENT,

individually or as CHIEF OF

POLICE OF TOULON, ILLINOIS,

and CITY OF TOULON, ILLINOIS,

Defendants.

Order

Now before the Court is the Plaintiffs Jane Does 1-7, 8, and 9’s Combined

Motion for Reconsideration or Final Judgment Pursuant to Fed. R. Civ. P. 54(b) (D.

89, D. 82, D. 82).1 For the reasons set forth, infra, the Motion is DENIED IN PART

and GRANTED IN PART.

I

On March 5, 2025, the Court entered an Order (D. 86, D. 79, D. 79)2 granting

Defendants Stark County and Sheriff Steven Sloan’s Motion to Dismiss the Second

Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (D. 77, D. 70, D. 70) and

granting in part and denying in part Defendants Gary Bent and the City of Toulon,

Illinois’ Motion to Dismiss Plaintiffs’ Second Amended Complaints Pursuant to

Federal Rule of Civil Procedure 12(b)(6) (D. 80, D. 73, D. 73). In their Second

Amended Complaints, the Plaintiffs had added claims pursuant to 42 U.S.C. § 1983

1 Citations to the electronic docket are abbreviated as “D. ___ at ECF p. ___.”

2 The Plaintiffs’ three civil lawsuits – Case Nos. 1:23-cv-01035, 1:23-cv-01036, 1:23-cv-01037 – were

consolidated for purposes of discovery in August 2023.

against Defendant Sloan in his official capacity as Sheriff of Stark County, Sloan in

his individual capacity, Stark County, Illinois, Defendant Bent in his official

capacity as Deputy Sheriff of Stark County, Illinois, Bent in his official capacity as

Chief of Police of the City of Toulon, Illinois, Bent in his individual capacity, and

the City of Toulon, Illinois. The Plaintiffs also added Illinois state law claims for

intrusion upon seclusion against Defendant Sloan as Sheriff of Stark County,

Defendant Stark County, Defendant Bent as Chief of Police of the City of Toulon,

and the City of Toulon.

In its Order on the Defendants’ Motions to Dismiss, the Court determined

the constitutional right to privacy the Plaintiffs alleged – “to the privacy of sexual

highly personal matters” and “to avoid the nonconsensual dissemination of access

to [their] private sexual images within the Blue Breeze CSAM Images” – was

defined too broadly and was lacking in specificity. 3/5/2025 Order (D. 86 at ECF

p. 7)3. The Court instead explained the right at issue was more precisely defined

as: the right to be free from one’s nude photos that are the subject of an ongoing

criminal investigation being disclosed in furtherance of the investigation to

individuals without actual authority to access them. Id. at ECF pp. 7-8. The Court

found the precisely defined right was not recognized by the cases the Plaintiffs

cited, including York v. Story, 324 F.2d 450 (9th Cir. 1963), and the Court could find

no case which recognized the constitutional right the Plaintiffs alleged. Thus, all

of the Plaintiffs’ Section 1983 claims failed.4

3 The Court hereafter cites only the docket in Case No. 1:23-cv-01035.

4 In addition to their claims against Defendants Sloan and Bent in their individual and official capacities,

the Plaintiffs sought to hold Defendants Stark County and the City of Toulon liable pursuant to Monell v.

Department of Social Services of City of New York, 436 U.S. 658 (1978). Also, the Plaintiffs do not challenge the

Court’s finding that they failed to state a claim under Illinois law for intrusion upon seclusion against

Defendants Sloan, Bent, and Stark County. See 3/5/2025 Order (D. 86 at ECF pp. 15-16).

In their instant Motion to reconsider, the Plaintiffs mainly argue the Court

misapprehended York and incorrectly dismissed the Plaintiffs’ Section 1983 claims

accordingly. They ask the Court to reconsider and reverse its March 5th Order, or,

in the alternative, find there is no just reason for delay and direct the entry of final

judgment on the Plaintiffs’ Section 1983 claims so that they may appeal.

II

Federal Rule of Civil Procedure 54(b) governs motion to reconsider filed

before the entry of final judgment. See Galvan v. Norberg, 678 F.3d 581, 587 n.3 (7th

Cir. 2012) (“Rule 54(b) governs non-final orders and permits revision at any time

prior to the entry of judgment . . . .”). Rule 54(b) provides in relevant part:

[A]ny order or other decision . . . that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties does

not end the action as to any of the claims or parties and may be revised

at any time before the entry of a judgment adjudicating all the claims

and all the parties’ rights and liabilities.

FED. R. CIV. P. 54(b). “[M]otions to reconsider an order under Rule 54(b) are judged

by largely the same standards as motions to alter or amend a judgment under Rule

59(e): to correct manifest errors of law or fact or to present newly discovered

evidence.” Woods v. Resnick, 725 F. Supp. 2d 809, 827-28 (E.D. Wis. 2010) (citing

Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)). An order

shall be altered or amended where the court: 1) patently misunderstood a party;

2) made a decision outside the adversarial issues presented; or 3) made an error

not of reasoning but of apprehension. Hutcherson v. Krispy Kreme Doughnut Corp.,

803 F. Supp. 2d 952, 956 (S.D. Ind. 2011).

Per the Plaintiffs, the constitutional right as framed by the Court in its March

5th Order is the exact right clearly established in York “in the distribution prong of

the section 1983 case.” Plfs’ Mot. to Recons. (D. 89-1 at ECF p. 3). In York, as the

Court previously summarized: a male police officer unnecessarily photographed

the nude body of a female citizen who made a complaint of an assault upon her,

over her protest and at a time a female officer could have been called in to take the

photographs, and distributed those photographs to other police department

personnel. 324 F.2d at 455. Two other male police officers, using police

photographic equipment located at the police station, made additional prints of

those photographs, and circulated those prints among the personnel of the police

department. Id. at 452.

In their Motion, the Plaintiffs attempt to show how the facts in York align

with those alleged here. Contrary to their arguments, the facts do not so perfectly

align as Defendant Sheriff Sloan here did not create/take the naked pictures under

questionable circumstances. See 3/5/2025 Order (D. 86 at ECF p. 8). The Ninth

Circuit underscored the photos were taken over the plaintiff’s protest that they

would show no injuries, a female officer was present at the station but was not

requested to take the photos, and the distribution of the photographs “could not

have aided in apprehending the person who perpetrated the assault.” York, 324

F.2d at 455. Here, as the Plaintiffs themselves alleged in their Second Amended

Complaint, Sheriff Sloan participated in the investigation into the Blue Breeze

images and directed the matter be assigned to Defendant Bent with the assistance

of Defendant Musselman, and Musselman in turn later told Bent he had reviewed

the link provided to him and identified the females depicted (the inference being

he did so in furtherance of the investigation). Plfs’ 2d Am. Compl. (D. 74 at ECF

pp. 49, 50). Such facts alleged here present an entirely different landscape than

that in York.

In other words, the officers’ further circulation of the plaintiff’s photographs

in York does not mirror Defendant Sloan’s and Bent’s actions as there are no

allegations in the Second Amended Complaint that those two provided Defendant

Musselman access to the Blue Breeze images though doing so could not have aided

in the investigation. As for Musselman’s actions in further disseminating the

naked photos to unauthorized individuals on the internet, those are irrelevant

given the definition of the constitutional right in this case. The constitutional right

as defined by this Court focused upon the disclosure of the images in furtherance

of the investigation, no allegation comes close to suggesting Musselman

purportedly disseminated the photographs to individuals on the internet in

furtherance of the investigation, and the Plaintiffs did not bring their Section 1983

claims against Musselman.5 This Court did not misapprehend the effect and

application of authority to investigate versus or compared to authority to

distribute to strangers; the Court’s focus was on the authority to distribute given

the defined right’s contours. See Smith v. Garland, 103 F.4th 1244, 1256 (7th Cir.

2024) (“Anything less than a careful description is insufficient, because ‘extending

constitutional protection to an asserted right or liberty interest . . . place[s] the

matter outside the arena of public debate and legislative action.’”) (quoting

Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). This Court did not

misapprehend York by finding it distinguishable from the present facts because

the Plaintiffs’ photos were not taken at the police station as they were in York; this

Court did not distinguish that case on those grounds.

The Plaintiffs make much ado about the two-pronged analysis in York, the

second being the “distribution prong” (as the Plaintiffs term it), stating this Court

failed to grasp that the York court found the defendants’ conduct there violated the

“separate and independent constitutional right of privacy protecting against an

individual clothed in and purporting to act with local governmental authority

from distributing photos to unauthorized individuals”. Plfs’ Mot. to Recons. (D.

89-1 at ECF pp. 8-9) (emphasis in original).

5 The York action was brought against the police officers who distributed/circulated the plaintiff’s

photographs. York, 324 F.2d at 451.

True, the factual allegations in support of the York plaintiff’s Due Process

claim included one police officer’s actions in taking nude photographs of the

plaintiff and disseminating those photos and two other officers’ actions in making

additional prints and circulating them. 324 F.2d at 452. But the York court did not

parse its analysis in the manner the Plaintiffs here suggest. The York court made

very clear what it was tasked to decide: “[W]hether the acts of the police, as here

alleged, constitute an arbitrary invasion upon the security of one’s privacy in upon

[sic] Due Process sense.” Id. at 455 (emphasis added). In stating it could not

“conceive of a more basic subject of privacy than the naked body”, the Ninth

Circuit elaborated in the conjunctive that it did “not see how it can be argued that

. . . the photographing of one’s nude body, and the distribution of such photographs

to strangers does not” deprive a person of her privacy. Id. (emphasis added). In

stating it could not “imagine a more arbitrary police intrusion upon the security

of that privacy” than there alleged, the Ninth Circuit considered the plaintiff’s

allegations as a whole, including the distribution of the photographs. Id. The Ninth

Circuit concluded:

[U]nder the allegations of the amended complaint, [the plaintiff] has laid a

foundation for proving, if she can, not only that [the defendants] were

acting under color of local authority at the times in question, but that

such acts constituted an arbitrary intrusion upon the security of her privacy,

as guaranteed to her by the Due Process Clause of the Fourteenth

Amendment.

Id. at 456 (emphasis added).

With regard to the Plaintiffs’ contention that the York court did not find it

dispositive that the photographs were not distributed for purposes of furthering

the criminal investigation, the Plaintiffs are somewhat mistaken. As quoted above,

the Ninth Circuit considered all the alleged facts simultaneously in reaching its

holding. The Plaintiffs are incorrect that the York court specifically rejected the

argument that “[s]ince the photographs were lawfully obtained, it was not

improper for authorized personnel to review or discuss them.” 324 F.2d at 454 n.6.

The Ninth Circuit quoted that statement appearing in the police officers’ brief

when it noted the officers did not contend the amended complaint was deficient

as to the requisite element of “acting under color of local authority” for a Section

1983 claim. Id. The York court did not explicitly consider whether the officers were

authorized or unauthorized in finding the plaintiff sufficiently alleged the police’s

acts constituted a deprivation of her liberty in violation of the Fourteenth

Amendment’s Due Process clause. Id. at 454 (explaining “[i]t hardly need be

added that the question of whether [the plaintiff] can prove that [the defendants]

were clothed with local authority, and were purporting to act pursuant thereto in

doing the things complained of, does not concern us now.”) (emphasis added).

It is worth noting, in light of the Plaintiffs’ arguments as to the Court’s

misapprehension of York, that the Ninth Circuit used the word “arbitrary” seven

times in its opinion to describe the police action/intrusion/invasion into the

plaintiff’s privacy. Here, the allegations and reasonable inferences therefrom as to

Defendants Sloan’s and Bent’s conduct set forth in the Second Amended

Complaint, specifically as to them handing over access to Musselman of the Blue

Breeze images, do not smack of the arbitrariness found in York. Ultimately, the

constitutional right defined by this Court in its March 5th Order does not exactly

align with the facts and holding of York and the present case. See Students v. U.S.

Dep’t of Educ., No. 16-cv-4945, 2016 WL 6134121, at *22 (N.D. Ill. Oct. 18, 2016) (“As

the Seventh Circuit has observed, the definition of a substantive due process right

is ‘constrained by the factual record before [the court], which sets the boundaries

of the liberty interests truly at issue in the case.’”) (emphasis in original) (quoting

Doe v. City of Lafayette, 377 F.3d 757, 769 (7th Cir. 2004)).

Finally, all the foregoing is to say nothing of the fact that the Plaintiffs fully

rely on an out of circuit case from 1963. Out-of-circuit precedent is not binding on

this Court, though it is entitled to “respectful consideration.” OSF Healthcare Sys.

v. Insperity Grp. Health Plan, 82 F. Supp. 3d 860, 865 (C.D. Ill. 2015) (quoting U.S. v.

Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994)). While York was cited in a Seventh Circuit

case as recently as 2022, that case did not involve the constitutional right alleged

here. West v. Radke, 48 F.4th 836, 850 (7th Cir. 2022) (stating “[c]ourts have long

recognized that sex is a trait relevant to inmate privacy” and citing cases

explaining it is a greater invasion of privacy to have one’s naked body viewed by

a member of the opposite sex in case addressing cross-sex strip searches in prison).

The Plaintiffs provide nothing to contradict the Court’s statement that it could find

no case which recognizes the constitutional right they allege here. Neither York

nor the Plaintiffs’ previously cited cases distinguished in the Court’s March 5th

Order do so. See Dep’t of State v. Muñoz, 602 U.S. 899, 910 (2024) (“Identifying

unenumerated rights carries a serious risk of judicial overreach, so this Court

‘exercise[s] the utmost care whenever we are asked to break new ground in this

field.’”) (quoting Glucksberg, 521 U.S. at 720).

The Plaintiffs’ remaining arguments as to color of authority of the officers

in York and York’s clearly established constitutional right as encompassing this

Court’s right amount to a rehashing of their first argument addressed, supra. Their

argument that the Court erred in finding they failed to plead a constitutional right

is a rehashing of their arguments made in opposition to the Defendants’ Motions

to Dismiss and will thus not be entertained. See Vesely v. Armslist LLC, 762 F.3d

661, 666 (7th Cir. 2014) (“[W]e have held that a Rule 59(e) motion is not to be used

to rehash previously rejected arguments . . . .”) (internal quotation and citation

omitted).

III

Because the Court has rejected the Plaintiffs’ request to reconsider its

finding that the Plaintiffs did not allege the violation of any recognized

constitutional right, their remaining arguments - the Court erred in not analyzing

their Monell claims as properly pled and the Court should not have dismissed

based on qualified immunity – fail. See 3/5/2025 Order (D. 86-1 at ECF pp. 11-12)

(finding that without a sufficiently alleged violation of any recognized

constitutional right, the Plaintiffs’ Monell claims failed and qualified immunity

precluded Defendants Sloan’s and Bent’s liability in their individual capacities).

IV

The Plaintiffs alternatively ask the Court to grant their motion for final

judgment and enter an order stating that there is no just reason for delay. “Rule

54(b) permits entry of a partial final judgment only when all of one party’s claims

or rights have been fully adjudicated, or when a distinct claim has been fully

resolved with respect to all parties.” Lottie v. W. Am. Ins. Co., of Ohio Cas. Grp. of

Ins. Cos., 408 F.3d 935, 938 (7th Cir. 2005) (internal citation omitted). Furthermore,

a court may direct entry of such a judgment when the court “expressly determines

that there is no just reason for delay.” Rankins v. Sys. Solutions of Ky., LLC, 40 F.4th

589, 591 (7th Cir. 2022) (quoting FED. R. CIV. P. 54(b)).

Here, the Plaintiffs argue that because their Section 1983 claims were

dismissed with prejudice as to each party against which such a claim was brought,

the dismissals on each claim are a “final judgment”. “[T]o determine whether an

order truly is ‘final,’ we ask whether there is significant factual and legal overlap

between the claim proposed for appeal and the part of the case pending in the

district court.” Rankins, 40 F.4th at 592; see also Lottie, 408 F.3d at 939 (“different

theories of relief or different legal characterizations of the same facts are not

separate claims for Rule 54(b) purposes”). The Plaintiffs contend their remaining

Illinois law intrusion upon seclusion claim against Defendant City of Toulon does

not consider whether or not there is a constitutional right violation, and, therefore,

that remaining claim should not preclude entry of final judgment as to their

Section 1983 claims.

Looking to the Second Amended Complaint’s allegations, there is factual

overlap between the Plaintiffs’ Section 1983 claims and their intrusion upon

seclusion claim: in both, the Plaintiffs allege Defendant Musselman was given

unrestricted access to a Dropbox link with Blue Breeze images though Defendant

Musselman was unauthorized to access and download the images. Nevertheless,

the factual overlap is not significant, and there is no meaningful legal overlap.

Resolution of the Plaintiffs’ intrusion upon seclusion claim against Defendant City

of Toulon would not “undercut” or otherwise alter the “final” claim where a

defined constitutional right does not factor into an intrusion upon seclusion

analysis, and the intrusion upon seclusion claim against the City of Toulon that

remains focuses upon Musselman’s conduct and no one else’s. Rankins, 40 F.4th

at 592. The City of Toulon remains a defendant as to that claim under a respondeat

superior theory of liability. See 3/5/2025 Order (D. 86 at ECF p. 17). Moreover, the

Plaintiffs’ Section 1983 claims were dismissed with prejudice.

In light of all this, there is no just cause for delay. See Toyo Tire Corp. v. Atturo

Tire Corp., No. 14-cv-0206, 2021 WL 1853310, at *2 (N.D. Ill. May 10, 2021) (“The

claim resolved must dispose of a distinct issue; only then will there be ‘no just

reason for delay’ in the appellate process.”) (quoting Domanus v. Locke Lorde LLP,

847 F.3d 469, 477 (7th Cir. 2017)). The parties and claims that remain before this

Court may proceed without causing piecemeal litigation of this action. The counts

that remain are, except for one (the intrusion upon seclusion claim against the

Defendant City based upon a respondeat superior theory of liability), against only

Defendant Musselman and seek relief pursuant to a federal statute allowing

victims of child pornography to recover from perpetrators, 18 U.S.C. § 2255(a), and

damages for intrusion upon seclusion. The Court’s and parties’ interest in

continuing to advance this case as to the remaining claims and the Plaintiffs’

interest in promptly attempting to revive their dismissed distinct Section 1983

claims are furthered by the entry of a Rule 54(b) judgment. See Curtiss-Wright Corp.

v. General Elec. Co., 446 U.S. 1, 8 (1980) (“a district court must take into account

judicial administrative interests as well as the equities involved” when

considering whether there are no just reasons to delay the appeal).

V

For the reasons set forth, supra, Plaintiffs Jane Does 1-7, 8, and 9’s Combined

Motion for Reconsideration or Final Judgment Pursuant to Fed. R. Civ. P. 54(b) (D.

89, D. 82, D. 82) is DENIED IN PART and GRANTED IN PART. The Plaintiffs’

motion to reconsider is DENIED, and their motion for final judgment is

GRANTED. The Clerk is directed to enter final judgment as follows: as to Counts

15-23 of Plaintiff Does 1-7’s Second Amended Complaint (D. 74) in 1:23-cv-01035;

as to Counts 3-11 of Plaintiff Doe 8’s Second Amended Complaint (D. 67) in 1:23-

cv-01036; and as to Counts 3-11 of Plaintiff Doe 9’s Second Amended Complaint

(D. 66) in 1:23-cv-01037.

It is so ordered.

Entered on April 29, 2025

s/Jonathan E. Hawley

U.S. DISTRICT JUDGE