# Roberts v. Hayes

> District Court, C.D. Illinois · May 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11046868

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** May 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11046868

## How later opinions describe it (automated extraction)

- discussing abstention doctrines related to a child custody dispute

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION

BRANDIE M. ROBERTS, )
)
Plaintiff,1 )
)
v. ) Case No. 4:24-cv-04114-SLD-RLH
)
OFFICER JASON HAYES, OFFICER )
EDDIE SHAMBLIN, OFFICER OWENS, )
ILLINOIS STATE POLICE, JUDGE )
ANDREW DOYLE, CITY OF ABINGDON, )
DCFS, LISA ZIMMERMAN, MISTY )
LAMPLEY, BERG’S TOWING AND )
AUTOMOTIVE INC., MARK SHEWRIN, )
MAURICE BARRY, BARBARA )
BOYNTON SHERWIN, and JOHN DOE 1– )
4, )
)
Defendants. )

ORDER
The matter comes before the Court for merit review of Plaintiff Brandie M. Roberts’s
Second Amended Complaint, ECF No. 14.2 Also pending before the Court is Plaintiff’s Motion
to Appoint Counsel, ECF No. 19. For the reasons that follow, the Second Amended Complaint
is DISMISSED IN PART for failure to state a claim and the Motion to Appoint Counsel is
DENIED WITHOUT PREJUDICE.

1 Plaintiff’s pleadings purport to assert claims on behalf of Plaintiff’s minor child, L.S. E.g., Second Am. Compl. 1.
ECF No. 14. A parent may not litigate an action pro se on her child’s behalf. See, e.g., Foster v. Bd. of Educ. of
City of Chi., 611 F. App’x 874, 877 (7th Cir. 2015) (collecting cases). L.S. is DISMISSED WITHOUT
PREJUDICE from this suit. Plaintiff may not attempt to litigate pro se claims properly belonging to L.S.
2 Plaintiff’s document is entitled “Plaintiff’s First Amended Complaint for Violation of Civil Rights under 42 U.S.C.
§§ 1983 and State Law Claims,” but Plaintiff has already filed a First Amended Complaint. See First Am. Compl.,
ECF No. 4. The Court refers to the at-issue pleading as the Second Amended Complaint for the sake of clarity.
BACKGROUND
The Court previously summarized Plaintiff’s allegations and presumes familiarity with
that summary. See Dec. 10, 2024 Order 2–4, ECF No. 11. Plaintiff’s allegations generally
concern two related matters: (1) an August 27, 2022 traffic stop which resulted in a subsequently

vacated conviction for methamphetamine possession; and (2) an ongoing dispute regarding
Plaintiff’s custody of L.S. Id. On August 27, 2022, Officers Jason Hayes and Owens of the
Abingdon Police Department conducted a traffic stop of Plaintiff’s converted bus, which served
as Plaintiff’s home. See Second Am. Compl. 2–3, 5.3 “The stop was initiated under the pretext
of alleged minor traffic violations, including improper use of registration, lack of insurance, and
an unregistered trailer.” Id. at 3. At some point, Officer Eddie Shamblin of the Illinois State
Police (“ISP”) joined the traffic stop. Id. Shamblin stated to Hayes that he was going to “show
[Hayes] a trick,” which Plaintiff asserts referred “to using prior no-insurance tickets to justify
impoundment.” Id. The officers then conducted a pretextual inventory search of Plaintiff’s bus
and found “residue that field-tested positive for methamphetamine, resulting in Plaintiff’s arrest”

and prosecution. Id. at 4. “Plaintiff was unlawfully detained for approximately 5.5 hours during
and after the traffic stop.” Id. Plaintiff’s bus was towed by Berg’s Towing and Automotive Inc.
(“Berg’s”) as part of the traffic stop. Shamblin was employed by Berg’s in addition to his
employment with ISP. Id.
Judge Andrew Doyle denied Plaintiff’s attempt to suppress the residue evidence, leading
to Plaintiff’s conviction for methamphetamine possession, and he issued an order of protection
on behalf of L.S. Id. at 5. Both Plaintiff’s conviction and the order of protection were reversed
on appeal. People v. Roberts, 2024 IL App (4th) 230419-U, ¶¶ 1–2 (conviction); Sherwin v.

3 Citations to the Second Amended Complaint utilize page numbers because the paragraphs are inconsistently
numbered.
Roberts, 2023 IL App (4th) 220904-U, ¶ 1 (order of protection). The criminal charges against
Plaintiff were subsequently dismissed by the State. People v. Roberts, 2022CF419, Knox
County, IL,
https://judici.com/courts/cases/case_history.jsp?court=IL048025J&ocl=IL048025J,2022CF419,I

L048025JL2022CF419D1 (last visited Apr. 29, 2025).
Lisa Zimmerman, an employee of the Illinois Department of Children & Family Services
(“DCFS”) entered and searched Plaintiff’s bus without a warrant or court order while it was
impounded by Berg’s. Second Am. Compl. 4–5. Zimmerman took photos of the bus in its post-
search state and used those photos “to support a neglect allegation against Plaintiff.” Id. Those
photos were not “indicative of Plaintiff’s normal living conditions” and demonstrated that Hayes
and Shamblin “had unnecessarily broken many personal items . . . and had left the bus in
disarray.” Id. at 5. Zimmerman’s allegations against Plaintiff, relying at least in part upon those
photos of Plaintiff’s bus, resulted in Plaintiff being “indicated”4 for abuse or neglect, but that
finding “was later vacated during the adjudication appeal process.” Id. at 5–6. Zimmerman also

threatened to place L.S. in foster care if Plaintiff continued to allege that Zimmerman was a liar.
Zimmerman coerced Plaintiff into taking a drug test in exchange for custody of L.S. Id. at 6.
Zimmerman and her supervisor, Misty Lampley, “altered the results” of that drug test. Id.
At Zimmerman’s direction, Mark Sherwin, L.S.’s father, withheld L.S. from Plaintiff for
two weeks in September 2022 without a valid court order. Id. Sherwin, along with L.S.’s
paternal grandmother, Barbara Boynton-Sherwin, and Sherwin’s attorney, Maurice Barry,
conspired to “misuse legal processes, including filing false allegations of abuse and

4 “Indicated” refers to a preliminary finding by DCFS of abuse or neglect. See, e.g., Sebesta v. Davis, 878 F.3d 226,
230 (7th Cir. 2017) (“DCFS notified [the plaintiff] that she had been ‘indicated’ for a ‘Substantial Risk of Physical
Injury/Environment Injurious to Health and Welfare by Neglect.’ In English, this signaled that DCFS’s
investigation had turned up credible evidence of neglect.”).
environmental neglect, to restrict Plaintiff’s parental rights.” Id. Barry acted unethically by
ignoring a court order to prioritize Plaintiff’s motions, instead prioritizing his own motions “by
scheduling hearings only for his own motions,” thereby depriving Plaintiff “of the opportunity to
prepare and present her case effectively [and] placing her at a severe procedural disadvantage.”

Id. Barry also falsely alleged that L.S. had drugs in his system without any toxicological basis
for such an allegation, leading to the extension of an order of protection limiting Plaintiff’s
contact with L.S. Id. Barry engaged in other deceitful conduct, consistent with his two prior
one-year-long suspensions from the practice of law. Id. at 6–7. Boynton-Sherwin exercised
undue control over supervised visitation between L.S. and Plaintiff, took away from L.S. items
which Plaintiff had given him, and abused the trust inherent in supervised visitation by using
information derived from those visits to create false and defamatory allegations about Plaintiff to
DCFS. Id. at 7.
DCFS is continuing to pursue a wardship petition regarding L.S., relying upon the
previously vacated methamphetamine conviction and 2022 neglect findings. Id. at 8. In July

2024, Plaintiff allowed L.S. to walk by himself to a gas station 200 feet from the bus while
Plaintiff observed from the bus’s window. Id. Plaintiff was “indicated” for inadequate
supervision due to this incident. Id. As part of investigating this issue, an investigator decided to
combine this investigation with executing a warrant for Plaintiff’s boyfriend’s failure to appear
(presumably for a court hearing). Id. The investigator arrived at Plaintiff’s bus accompanied by
at least eight officers, “a clear abuse of power and an example of intimidation.” Id. DCFS’s
actions are a campaign of “harassment and retaliation for standing up for her constitutional
rights, leading to emotional distress and ongoing harm to the parent-child relationship.” Id. at 9.
As a result of the Court’s first merit review, Plaintiff’s First Amended Complaint was
dismissed in part for failure to state a claim. See generally Dec. 10, 2024 Order. She was given
leave to amend to address the deficiencies identified by the Court. Id. at 15. Plaintiff’s Second
Amended Complaint fails to address many of these deficiencies, adds Boynton-Sherwin as a new

Defendant, and asserts thirty additional claims. See generally Second Am. Compl. The Court
previously denied Plaintiff’s request for counsel, see Dec. 10, 2024 Order 12–13, and Plaintiff
renews that request, see generally Mot. Appoint Counsel.
DISCUSSION
I. Motion to Appoint Counsel
A. Legal Standard
Under the federal in forma pauperis statute, “[t]he court may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). However, “parties to
civil litigation have no right to counsel.” Thornhill v. Cox, 113 F. App’x 179, 181 (7th Cir.
2004). When faced with a request to appoint counsel, the court must determine: “(1) has the

indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from
doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to
litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Farmer v. Haas,
990 F.2d 319, 321–22 (7th Cir. 1993)). Litigating a case includes “evidence gathering, preparing
and responding to motions and other court filings, and trial.” Id. at 655. In considering whether
the difficulty of the case exceeds the plaintiff’s capacity to litigate it, the court considers “the
plaintiff’s literacy, communication skills, educational level, and litigation experience” as well as
the plaintiff’s “intellectual capacity and psychological history.” See id. Even if a court grants a
motion to recruit counsel, there is no guarantee it could find one willing to take the
appointment—a court cannot require an attorney to accept this case. See id. at 653.
B. Analysis
The Court denied Plaintiff’s prior request that the Court attempt to recruit counsel on her

behalf, instructing her that future requests must include “documentation of her attempt to obtain
counsel and [must] explain why she is not competent to litigate this case herself.” Dec. 10, 2024
Order 12–13. Plaintiff’s pending request includes an email exchange with one attorney and
screenshots of completed intake forms on four law-firm websites. Mot. Appoint Counsel 3–7.5
She explains that she needs counsel because she is “not legally trained and lack[s] the education,
health, and time needed to meet the legal and procedural demands of this litigation” and posits
that she is “open to limited scope representation” wherein she would handle “basic filings and
communication with the Court” while an attorney would handle “the more complex parts of this
case—like discovery, dispositive motions, and trial.” Id. at 2.
“Almost everyone would benefit from having a lawyer, but there are too many indigent

litigants and too few lawyers willing and able to volunteer for these cases.” Olson v. Morgan,
750 F.3d 708, 711 (7th Cir. 2014). “The question is not whether a lawyer would present the case
more effectively than the pro se plaintiff; if that were the test, district judges would be required
to request counsel for every indigent litigant.” Pruitt, 503 F.3d at 655. As the Court previously
noted, Plaintiff’s level of education—some college—suggests that she can handle this litigation
at this early stage. Dec. 10, 2024 Order 13 (citing Perez v. Fenoglio, 792 F.3d 768, 784 (7th Cir.
2015)). Plaintiff’s filings thus far have been sufficiently cogent and she has been able to clearly
communicate her theories of the case. Moreover, this litigation is still at its earliest stages—no

5 The Motion to Appoint Counsel is unpaginated so the Court uses the page numbers generated by CM/ECF.
Defendant has had to file an answer yet. Given Plaintiff’s abilities as a layperson to
communicate her positions and this litigation’s procedural posture, Plaintiff’s Motion to Appoint
Counsel is DENIED WITHOUT PREJUDICE.
II. Merit Review

A. Legal Standard
A court must dismiss a complaint brought by an individual proceeding IFP if it
determines that the complaint “fails to state a claim on which relief may be granted.” 28 U.S.C.
§ 1915(e)(2)(B)(ii); Tate v. SCR Med. Transp., 809 F.3d 343, 345 (7th Cir. 2015). The Federal
Rule of Civil Procedure 12(b)(6) standard applies when determining whether a complaint fails to
state a claim under § 1915(e)(2)(B)(ii). Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860
F.3d 461, 468 (7th Cir. 2017). Thus, the court takes all well-pleaded allegations as true and
views them in the light most favorable to the plaintiff. Arnett v. Webster, 658 F.3d 742, 751 (7th
Cir. 2011).
If a claim is dismissed, a court may decide whether the plaintiff should be given leave to

amend that claim. Leave to amend should be “freely” given “when justice so requires,” Fed. R.
Civ. P. 15(a)(2), and a plaintiff ordinarily should be given a second chance to properly plead her
claim, see Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,
519–20 (7th Cir. 2015). However, “district courts have broad discretion to deny leave to amend
where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies,
undue prejudice to the defendants, or where the amendment would be futile.” Arreola v.
Godinez, 546 F.3d 788, 796 (7th Cir. 2008).
B. Analysis
As an initial matter, Plaintiff attempts to allege certain claims that the Court previously
dismissed with prejudice—those claims may not be reasserted. In particular, Judge Andrew
Doyle is still entitled to absolute judicial immunity, see Dec. 10, 2024 Order 6–7, such that the

claim asserted against him is again DISMISSED WITH PREJUDICE, see Second Am. Compl.
10–12. DCFS and ISP are still non-suable entities under 42 U.S.C. § 1983, see Dec. 10 2024
Order 7–8, such that the many claims asserted against them under § 1983 are also DISMISSED
WITH PREJUDICE, see Second Am. Compl. 9–25, 50–55. Plaintiff’s other claims can be
broadly grouped into three categories: (1) constitutional claims; (2) state law property and
contract claims; and (3) state law tort claims. The Court takes up each category in turn,
analyzing issues common to each category or particular Defendants before analyzing specific
claims.
1. Constitutional Violations via 42 U.S.C. §§ 1983, 1985
a. State Action

Plaintiff utilizes § 1983 to advance her constitutional claims against various combinations
of Defendants. Second Am. Compl. 9–25, 50–55. Section 1983 is not a freestanding cause of
action for any constitutional violation—it requires that the “person” who committed the violation
have acted “under color of” law. 42 U.S.C. § 1983. While “[p]rivate action can become state
action when private actors conspire or are jointly engaged with state actors to deprive a person of
constitutional rights,” Hallinan v. Fraternal Ord. of Police of Chi. Lodge No. 7, 570 F.3d 811,
815 (7th Cir. 2009), “mere allegations of joint action or a conspiracy” are insufficient, Scott v.
Univ. of Chi. Med. Ctr., 107 F.4th 752, 758 (7th Cir. 2024) (quotation marks omitted). To
plausibly allege that private parties acted under color of state law, a plaintiff must allege that the
private actors and state actors reached an agreement to deny the plaintiff a constitutional right
and that the private actors were “willful participant[s] in joint activity with the State or its
agents.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (alteration in original) (quotation
marks omitted); see id. (“For an individual to act under color of law, there must be evidence of a

concerted effort between a state actor and that individual.”). The Court begins by analyzing
whether Plaintiff has sufficiently alleged that some of the private actors—Berg’s, Sherwin, and
Boynton-Sherwin—engaged in state action.
Starting with Berg’s, the Court previously dismissed a Fourth Amendment claim against
Berg’s for insufficient allegations of state action. See Dec. 10, 2024 Order 10 (“A conclusory
allegation that Berg’s acted in concert with the police officers does not suffice . . . .”). Plaintiff
newly alleges that Shamblin was employed by Berg’s as well as ISP, and that “[t]his dual role
created a conflict of interest and facilitated coordination between law enforcement and Berg’s.”
Second Am. Compl. 4. For her Fourth Amendment claim, Plaintiff again alleges that Berg’s
“acted in concert with state actors by granting Defendant Zimmerman, a DCFS investigator,

unauthorized access to Plaintiff’s impounded bus.” Id. at 9. This dual role might incentivize
Shamblin to steer business to Berg’s but it does not suggest that Berg’s via Shamblin reached
any agreement—explicit or implicit—with a state actor to deny Plaintiff of her constitutional
rights. Again, Plaintiff fails to allege that Berg’s and any state actor “had a meeting of the minds
and thus reached an understanding … to deny” Plaintiff “a constitutional right.” Scott, 107 F.4th
at 758 (alteration in original) (quotation marks omitted). The remainder of Plaintiff’s
constitutional claims against Berg’s all hinge on the act of allowing Zimmerman access to
Plaintiff’s bus. See Second Am. Compl. 10–12, 18–20, 22–23. Because none of these § 1983
claims sufficiently allege the existence of an agreement between Berg’s and a state actor, these
claims as asserted against Berg’s are DISMISSED WITH PREJUDICE. Dismissal with
prejudice is warranted because Plaintiff has already been given a chance to cure this previously
identified deficiency and failed to do so. See Arreola, 546 F.3d at 796.
A similar analysis applies to Plaintiff’s allegations of state action regarding Sherwin. The

Court previously dismissed a constitutional claim asserted against Sherwin because “Plaintiff’s
conclusory allegation that he ‘acted in concert with DCFS agents’ [wa]s insufficient to show that
he was acting under color of law.” Dec. 10, 2024 Order 11–12 (quoting First Am. Compl. 5,6
ECF No. 4). Plaintiff changes this allegation’s wording but not its substance—she now alleges
that Sherwin “acting under the direction of Defendant Zimmerman, withheld custody of [L.S.].”
Second Am. Compl. 6. At most, this allegation would establish that Sherwin and Zimmerman
shared a common goal—prevent Plaintiff from having custody over L.S.—but it does not show
that they reached an understanding to unlawfully deprive Plaintiff of her right to have custody of
L.S. See Scott, 107 F.4th at 758 (“Merely working in parallel toward a common goal is not the
same as conspiring together.” (quotation marks omitted)). Sherwin may have needed

Zimmerman’s instruction to know that he could withhold L.S. from Plaintiff, but Plaintiff fails to
allege that Sherwin and Zimmerman reached an understanding to achieve this result as part of a
scheme to violate Plaintiff’s rights. The constitutional claims asserted via § 1983 against
Sherwin are DISMISSED WITH PREJUDICE because Plaintiff failed to cure the identified
deficiency regarding the absence of state action.
The allegations of state action regarding Boynton-Sherwin are even weaker. Plaintiff
alleges that Boynton-Sherwin fabricated her allegations against Plaintiff and used DCFS to
deprive Plaintiff of custody over L.S., Second Am. Compl. 7, but there are no allegations that

6 Citations to the First Amended Complaint use the page numbers generated by CM/ECF because the document is
not paginated.
Boynton-Sherwin did so as part of an agreed upon scheme to deprive Plaintiff of her rights.
Boynton-Sherwin and Sherwin needed the coercive power wielded by state officials to deprive
Plaintiff of custody of L.S., but allegations that they used DCFS processes are not the same as
allegations that they reached an agreement with state officials to deprive Plaintiff of her rights.

Cf. Dennis v. Sparks, 449 U.S. 24, 28 (1980) (“[M]erely resorting to the courts and being on the
winning side of a lawsuit does not make a party a co–conspirator or a joint actor with the
judge.”); Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019) (“[T]he mere act of furnishing
information to law enforcement officers does not constitute joint activity in an unconstitutional
arrest. . . . [And] the mere act of filing false police reports is not actionable under § 1983.”
(quotation marks omitted)). Boynton-Sherwin did not become a state actor merely by reporting
information to DCFS, even if that information was false or privileged. Although Boynton-was
newly added to the Second Amended Complaint, the Court declines to give Plaintiff an
opportunity to replead any constitutional claims against her because Plaintiff was already on
notice of the requirements for pleading state action by a private actor and failed to submit a

sufficient pleading. Therefore, the constitutional claims asserted via § 1983 against Boynton-
Sherwin are also DISMISSED WITH PREJUDICE.
b. City of Abingdon’s Direct Liability
Across many claims, Plaintiff seeks to assert that the City of Abingdon (“Abingdon”) is
directly liable for certain constitutional violations. E.g., Second Am. Compl. 20–22. As
established in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690
(1978), municipalities may be sued directly under § 1983 where “the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” The Court previously dismissed
Plaintiff’s Monell claim because “she ha[d] not identified the policies, practices, or customs that
resulted in her constitutional injury.” Dec. 10, 2024 Order 9. Plaintiff now alleges that: (1)
Abingdon’s police officers routinely engage in pretextual inventory searches; (2) police officers
“were inadequately trained on conducting lawful inventory searches during traffic stops” and (3)

Abingdon “failed to supervise or discipline its officers for unlawful conduct, fostering an
environment that encouraged or condoned constitutional violations.” Second Am. Compl. 21.
Beginning with Plaintiff’s first theory, Plaintiff’s claim still falls short because it seeks to
expand a single experience into a policy, practice, or custom without detailing any other
instances of misconduct attributable to Abingdon’s officials or employees. See Thomas v. Cook
Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (“[T]here is no clear consensus as to
how frequently such conduct must occur to impose Monell liability, except that it must be more
than one instance . . . .” (quotation marks omitted)); Walker v. City of Chicago, 596 F. Supp. 3d
1064, 1074 (N.D. Ill. 2022). One negative encounter with a municipality’s police force is
insufficient to plausibly allege that the municipality’s policies, practices, or customs were the

cause of a constitutional violation. Plaintiff’s allegations regarding Shamblin—namely that
Shamblin described the pretextual inventory search as “a trick” to be taught—could allow for an
inference that improper impound searches were widespread and enjoyed some official approval.
Second Am. Compl. 3. But the issue is that Shamblin was allegedly employed by Berg’s and
ISP, not Abingdon. Id. at 2, 4. It would be implausible to conclude that Abingdon had a
widespread practice of improper inventory searches based on the statements of an individual that
was neither employed nor supervised by Abingdon. Plaintiff makes no other factual allegations
beyond her own experiences on August 27, 2022 to plausibly support her assertion that
Abingdon failed to supervise or punish its officials for their misconduct.
Turning to Plaintiff’s second and third theories, “[a] municipality will be held liable for
the violation of an individual’s constitutional rights for failure to train adequately its officers
only when the inadequacy in training amounts to deliberate indifference to the rights of the
individuals with whom the officers come into contact.” Jenkins v. Bartlett, 487 F.3d 482, 492–

93 (7th Cir. 2007). “Deliberate indifference exists [only] where the [municipality] (1) failed to
provide adequate training in light of foreseeable consequences; or (2) failed to act in response to
repeated complaints of constitutional violations by its officers.” Miranda v. County of Lake, 900
F.3d 335, 345 (7th Cir. 2018) (quotation marks omitted). There are no allegations of repeated
unlawful inventory searches or any allegations as to why Abingdon would have been on notice
of a need to provide additional training. See id. (“[T]he defendant must have actual or
constructive notice of a problem.”). Likewise, to hold Abingdon liable for failure to supervise or
discipline its officers, Plaintiff would need to plausibly allege that Abingdon was on notice of a
problem and failed to take appropriate action. See Ruiz-Cortez v. City of Chicago, 931 F.3d 592,
599–600 (7th Cir. 2019); see also Spicer v. Geo Grp., No. 1:20-cv-02760-SEB-TAB, 2022 WL

3925098, at *4 (S.D. Ind. Aug. 31, 2022) (“A Monell failure-to-train or failure-to-supervise
theory requires a showing that a corporate defendant had notice that gaps in its training or
supervision would cause constitutional violations; in many cases, notice is shown with proof of a
prior pattern of similar constitutional violations.”). She has not done so.
Therefore, the § 1983 claim against Abingdon for a pattern of pretextual inventory
searches is DISMISSED WITH PREJUDICE because Plaintiff failed to cure the previously
identified deficiency in this Monell theory. For similar reasons, the Court finds that amendment
of her new theories—failure to train or supervise—is futile. These theories were offered in lieu
of factual allegations demonstrating a policy, practice, or custom, i.e., incidents beyond her own
isolated experience. But those allegations are necessary to support those theories as well. As
Plaintiff has not pointed to facts beyond her own August 27, 2022 traffic stop, those theories of
Monell liability are also DISMISSED WITH PREJUDICE.
c. Eighth Amendment

In Count XXIX, Plaintiff alleges that Hayes, Owens, Shamblin, Zimmerman, and
Lampley violated the Eighth Amendment. Second Am. Compl. 54–55. The Eighth Amendment
provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII. Plaintiff faults Hayes, Owens, and
Shamblin for the length of her detention on August 27, 2022, asserting that she was detained “5.5
hours for minor traffic violations, far exceeding any reasonable or justified timeframe.” Id. at
54. Zimmerman and Lampley assertedly ran afoul of the Eighth Amendment via their threats to
place L.S. in foster care and coercing Plaintiff into submitting to drug tests. Id. All five
Defendants collectively violated the Eighth Amendment by “fabricating evidence” and
withholding L.S. from Plaintiff. Id. at 55. These allegations do not plausibly support relief

under the Eighth Amendment because Plaintiff was not a convicted prisoner at the time. See
Ingraham v. Wright, 430 U.S. 651, 664–71 (1977) (holding that the Eight Amendment applies
only to convicted prisoners); Ledford v. Rutledge, NO. 1:17-CV-438-TLS, 2018 WL 4216820, at
*10 (N.D. Ind. Sept. 4, 2018) (“As for the traffic stops, the Eighth Amendment’s cruel and
unusual punishment clause does not apply because it applies only to convicted prisoners.” (citing
Kingsley v. Hendrickson, 576 U.S. 389, 400–01 (2015)). The Eighth Amendment is simply
inapplicable. Plaintiff’s Eighth Amendment claims are DISMISSED WITH PREJUDICE
because any amendment would be futile.
d. Conspiracy to Deprive Civil Rights: 42 U.S.C § 1985(3)
In Count VII, Plaintiff alleges that all Defendants were members of a conspiracy to
deprive her of her civil rights. Second Am. Compl. 18–20. 42 U.S.C. § 1985(3) prohibits two or
more persons from conspiring “for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws.” 42 U.S.C. § 1985(3). A plaintiff must allege “(1) the existence of a
conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of the
laws, (3) an act in furtherance of a conspiracy, and (4) an injury to person or property or a
deprivation of a right or privilege granted to U.S. citizens.” Green v. Benden, 281 F.3d 661, 665
(7th Cir. 2002). The second element requires that the defendants have acted with “racial, or
perhaps otherwise class-based, invidiously discriminatory animus.” Griffin v. Breckenridge, 403
U.S. 88, 102 (1971). The Court previously dismissed this claim for failure to identify any class-
based discriminatory animus. Dec. 10, 2024 Order 5–6.
Plaintiff’s amended version of this claim fails to rectify this deficiency. She identifies

“her perceived lifestyle, socioeconomic status, and personal appearance” as the relevant suspect
classifications. Second Am. Compl. 20. Plaintiff’s allegations regarding her unexplained
appearance or lifestyle, let alone the perceptions thereof, are devoid of sufficient factual
content—lifestyle and appearance are simply too ambiguous of terms to provide fair notice. Cf.
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not necessary; the statement need
only give the defendant fair notice of what the claim is and the grounds upon which it rests.”
(alterations and quotation marks omitted)). Even the more straightforward allegation of
discrimination on the basis of socioeconomic status is a nonstarter because the Supreme Court
has long declined to recognize indigency as the basis of a suspect classification. See Maher v.
Roe, 432 U.S. 464, 471 (1977); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29
(1973); cf. Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (finding that dismissal of
§ 1985(3) claim was appropriate because the plaintiff “failed to sufficiently allege such animus
because status as a parolee is not considered a ‘suspect class’ for equal-protection purposes”).

Moreover, Plaintiff needed to “at a minimum, allege (1) the parties to the conspiracy, (2)
the general purpose of the conspiracy, and (3) the general time at which the conspiracy was
formed.” Maglaya v. Kumiga, No. 14-cv-3619, 2015 WL 4624884, at *12 (N.D. Ill. Aug. 3,
2015). Plaintiff’s conclusory allegations do not identify when the conspiracy was formed nor
when certain Defendants decided to join up. See Second Am. Compl. 20 (“The Defendants acted
in concert with a shared understanding and mutual objective to deprive Plaintiff of her rights.”).
At best, she has alleged that some Defendants spoke with each other at unidentified times, but
working in parallel towards the same goal is not the same as a conspiratorial agreement. See
Scott, 107 F.4th at 758. Plaintiff’s claim for conspiracy to deprive civil rights is DISMISSED
WITH PREJUDICE because she failed to cure a previously identified deficiency.

2. State Law Claims: Property and Contract
a. Count X: Trespass to Chattels
In Count X, Plaintiff alleges that Berg’s, Zimmerman, and Lampley are liable for trespass
to chattels. Second Am. Compl. 23–24. “Trespass to personal property involves an injury to or
interferences with possession of chattel, with or without physical force.” Zissu v. IH2 Prop. Ill.,
L.P., 157 F. Supp. 3d 797, 803 (N.D. Ill. 2016). “A trespass to a chattel may be committed by
intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel
in the possession of another.” Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219, 1229 (N.D.
Ill. 2005) (quoting Restatement (Second) of Torts § 217 (Am. L. Inst. 1965)). Plaintiff alleges
that Berg’s impounded her bus, charged excessive amounts for its recovery in violation of local
regulations, and refused to accept credit or debit card payment in violation of applicable
regulations. Second Am. Compl. 24. She alleges that Zimmerman took photos of her bus and its
contents after Berg’s impounded the bus, but Lampley’s role is unexplained. Id.

The lack of factual allegations relating to Lampley requires that this claim be dismissed
as asserted against her. The allegations related to Zimmerman are also insufficient to state a
claim because taking photographs does not injure or interfere with Plaintiff’s right of possession
in the chattels, i.e., photographing generally does not affect property. See Zissu, 157 F. Supp. 3d
at 803; cf. Fischkoff v. Iovance Biotherapeutics, Inc., 339 F. Supp. 3d 408, 416 (S.D.N.Y. 2018)
(noting that copying files from a hard drive without permission did not state a claim of trespass
to chattels under New York law because “there [wa]s no indication that the condition, quality or
value of the computer, its hard drive, or any of the information on the computer was diminished
as a result of defendants’ duplication of the hard drive” (quotation marks omitted)). Count X is
DISMISSED as against Zimmerman and Lampley.

b. Count XVIII: Conversion
In Count XVIII, Plaintiff alleges that Berg’s, Sherwin, and Boynton-Sherwin are liable
for conversion. Second Am. Compl. 35–36. “The difference between [trespass to chattels and
conversion] is a matter of degree.” Obi v. Chase Home Fin., LLC, No. 10 C 3154, 2010 WL
4810609, at *4 (N.D. Ill. Nov. 19, 2010). Conversion requires a plaintiff to show “that (1) [s]he
has a right to the property; (2) [s]he has an absolute and unconditional right to the immediate
possession of the property; (3) [s]he made a demand for possession; and (4) the defendant
wrongfully and without authorization assumed control, dominion, or ownership over the
property.” Loman v. Freeman, 890 N.E.2d 446, 461 (Ill. 2008) (quotation marks omitted). As
against Berg’s, Plaintiff repeats a condensed version of the allegations she levies in her trespass-
to-chattels claim. Second Am. Compl. 35. Plaintiff alleges that Sherwin and Boyton-Sherwin
took away items from L.S. that Plaintiff had given to him “with the intent of alienating L.S. from
Plaintiff.” Id. at 36.

The issue with Plaintiff’s conversion claim against Boynton-Sherwin and Sherwin is that
she alleges that she gave the at-issue items to L.S., e.g., Second Am. Compl. 7, such that Plaintiff
had no continuing right to possess them. Cf., e.g., In re Marriage of Romano, 968 N.E.2d 115,
129 (Ill. App. Ct. 2012) (defining a “gift” as “a voluntary gratuitous transfer of property from
donor to donee where the donor manifests an intent to make such a gift and absolutely and
irrevocably delivers the property to the done” (quotation marks omitted)); id. at 128 (“[A]
transfer from a parent to a child is presumed to be a gift.”). Plaintiff is thus unable to show that
she had a right to the property and cannot maintain a claim for conversion regarding the same.
Further, because she is proceeding pro se, she is unable to assert L.S.’s rights on his behalf. See,
e.g., Foster v. Bd. of Educ. of City of Chi., 611 F. App’x 874, 877 (7th Cir. 2015) (collecting

cases to demonstrate “that the rule prohibiting a nonlawyer from representing another person
extends to a parent attempting to represent her minor child pro se”). Therefore, Count XVIII is
DISMISSED as against Sherwin and Boynton-Sherwin.
c. Count XXXVI: Breach of Implied Covenant of Good Faith and
Fair Dealing

In Count XXXVI, Plaintiff alleges that Berg’s and Zimmerman are liable for breaching
an implied covenant of good faith and fair dealing. Second Am. Compl. 64–65. She asserts that
Berg’s and Zimmerman breached this covenant in an undescribed contract between Plaintiff and
Berg’s “to tow her bus.” Id. Plaintiff acknowledges that Zimmerman was “not directly a party
to the towing agreement” but asserts that she “acted in concert with Berg’s.” Id. at 65. This
claim fails outright because “Illinois law . . . does not recognize an independent cause of action
for breach of the implied covenant of good faith and fair dealing.” Boone v. MB Fin. Bank, N.A.,
375 F. Supp. 3d 987, 995 (N.D. Ill. 2019) (first citing Voyles v. Sandia Mortg. Corp., 751 N.E.2d
1126 (Ill. 2001); and then citing McArdle v. Peoria Sch. Dist. No. 150, 705 F.3d 751, 755 (7th

Cir. 2013)).
Cognizant that “[a] document filed pro se is to be liberally construed,” Erickson, 551
U.S. at 94 (quotation marks omitted), the Court considers whether Plaintiff can state a breach of
contract claim based on an alleged breach of the covenant of good faith and fair dealing. See,
e.g., Kipnis v. Mandel Metals, Inc., 741 N.E.2d 1033, 1038 (Ill. App. Ct. 2000) (“A covenant of
good faith and fair dealing is implied in every contract absent a provision that specifically states
otherwise.”). “The required elements of a breach of contract claim in Illinois are the standard
ones of common law: (1) offer and acceptance, (2) consideration, (3) definite and certain terms,
(4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages.” Wigod
v. Wells Fargo Bank, N.A., 673 F.3d 547, 560 (7th Cir. 2012) (quotation marks omitted). Far

from alleging definite and certain terms, Plaintiff fails to allege any terms of the contract
between herself and Berg’s. Second Am. Compl. 64–65. The missing essential terms, including
the price paid, of the alleged contract means that the Court cannot ascertain what the parties
purportedly agreed to and therefore could not enforce such an agreement under Illinois law.
Ass’n Benefit Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 850 (7th Cir. 2007). Simply
identifying the subject matter of the contract—“to tow her bus,” Second Am. Compl. 65—is not
sufficient. Finally, Plaintiff’s acknowledgment that Zimmerman was not party to her contract
with Berg’s means that she cannot maintain a claim against Zimmerman for breaching that
contract. Count XXXVI, construed as a breach-of-contract claim, is DISMISSED.
3. State Law Claims: Tort
Beginning with a generally applicable issue, most of Plaintiff’s tort claims asserted
against entities must be dismissed because she fails to allege that those entities acted in their
capacities as entities, as opposed to their agents acting. Plaintiff previously asserted a claim for

intentional infliction of emotional distress (“IIED”) against DCFS, ISP, and Abingdon. First
Am. Compl. 7. The Court dismissed these claims because Plaintiff failed to describe any of their
conduct. Dec. 10, 2024 Order 7–8. Plaintiff’s amended claims again fall short—there is still no
factual content related to the entities’ conduct as entities, as opposed to their employees’
conduct. Moreover, Plaintiff now asserts other claims to hold these entities vicariously liable for
their agents’ conduct, see, e.g., Second Am. Compl. 65–67 (asserting a claim for “Vicarious
Liability” against Berg’s, DCFS, ISP, and Abingdon), such that construing Plaintiff’s direct
claims against the entities as indirect claims is unwarranted.
Because Plaintiff failed to rectify this previously identified deficiency, the following
claims are DISMISSED WITH PREJUDICE: (1) Count XII: IIED as against DCFS, id. at 25–28;

(2) Count XXI: Negligent Infliction of Emotional Distress (“NIED”) as against DCFS, ISP, and
Abingdon, id. at 39–41; (3) Count XXXIV: Reckless Infliction of Emotional Distress, as against
DCFS, id. at 61–62; (4) Count XV: Defamation, as against DCFS, id. at 31–33; (5) Count XXII:
Fraudulent Misrepresentation, as against DCFS, id. at 42–43; (6) Count XIV: False
Imprisonment, as against DCFS, ISP, and Abingdon, id. at 30–31; (7) Count XXIII: Malicious
Prosecution, as against DCFS, id. at 43–46; and (8) Count XXXIII: Invasion of Privacy, as
against DCFS, id. at 59–60. The Court now turns to issues with specific claims.
a. Count XXXII: Intentional Interference with Contractual
Relations

Count XXXII alleges that Sherwin and Boynton-Sherwin are liable for intentional
interference with contractual relations. Second Am. Compl. 58–59. The tort of intentional
interference with contractual relations requires sufficient allegations:
(1) that a valid and enforceable contract existed between the plaintiff and another
party, (2) that the defendant was aware of that contract relation, (3) that the
defendant intentionally and unjustifiably induced a breach of the contract, (4) that
there was a subsequent breach of the contract by the other party that was caused by
the defendant’s wrongful conduct, and (5) that the plaintiff suffered damages.

L. Offs. of Charles Chejfec, LLC v. Franz, 232 N.E.3d 1111, 1122 (Ill. App. Ct. 2023), appeal
denied, 238 N.E.3d 314 (Ill. 2024). Plaintiff alleges that Sherwin and Boynton-Sherwin “were
fully aware of Plaintiff’s legal and contractual rights to custody and visitation with her minor
child, L.S.,” yet they misused legal processes to obstruct those rights and gave false info to
DCFS. Second Am. Compl. 58–59. Moreover, they allegedly withheld L.S. from Plaintiff,
“[r]efus[ed] to comply with lawful agreements or orders, and influenc[ed] others to breach
contractual arrangements related to Plaintiff’s custodial and visitation rights.” Id. at 59.
To start, “Illinois courts generally do not respect private agreements affecting custody.”
Martinez v. Cahue, 826 F.3d 983, 991 (7th Cir. 2016) (citing In re Marriage of Linta, 18 N.E.3d
566, 570 (Ill. App. Ct. 2014)). Such an agreement would need the force of a court order, and that
order could be described as a contract between the mother and father. See In re Guardianship of
J.O., 2025 IL App (4th) 241026-U, ¶ 123 (“The parenting plan is a contract between the mother
and the father . . . .” (citing In re Marriage of Coulter & Trinidad, 976 N.E.2d 337, 341 (Ill.
2012)). Any other agreement would not be a valid and enforceable contract and therefore could
not support a claim for intentional interference with contractual relations.
Accordingly, in an attempt to construe this claim liberally, the Court considers whether
the Second Amended Complaint plausibly states that either Sherwin or Boynton-Sherwin
intentionally induced a breach of a custody order by the only party to the contract other than
Plaintiff, i.e., Sherwin. Sherwin could not have induced himself to breach a custody order, and

Plaintiff does not allege that Boynton-Sherwin was a party to any such order, so it is implausible
that Sherwin intentionally induced Boynton-Sherwin to breach a valid contract with Plaintiff.
As for whether Boynton-Sherwin intentionally induced Sherwin to breach the terms of a
custody agreement regarding L.S., there is simply not enough factual detail to find a plausible
claim. Plaintiff alleges that they “refus[ed] to comply with lawful agreements or orders,” but
fails to provide specifics. Second Am. Compl. 59. The closest Plaintiff gets is her description of
litigation conduct in the summer of 2022—Plaintiff and L.S. had made extensive preparations for
taking the bus to see the ocean, but “[i]n late July 2022, just months after being awarded joint
parental responsibilities, . . . Sherwin filed a petition for an order of protection against Plaintiff.”
Second Am. Compl. 3. She further alleges that “Sherwin had previously threatened to file for

contempt and an order of protection if Plaintiff continued with her vacation plans.” Id. Even
assuming that seeking an order of protection was somehow a breach of an unspecific court-
ordered agreement, the Second Amended Complaint does not speak at all to Boynton-Sherwin’s
role in or knowledge of this conduct, and thereby fails to plausibly allege that Boynton-Sherwin
induced Sherwin to breach a contract with Plaintiff. The Court closes this section by noting that
this business-focused tort is a poor fit for a non-economic custody dispute. Count XXXII:
Intentional Interference with Contractual Relations is DISMISSED.
b. Torts Related to Plaintiff’s Parental Relations
Across Counts XXVII, XVII, XIX, and XXV, Plaintiff seeks to assert multiple state-law
torts related to various Defendants’ interference with her relationship with L.S. Count XXVII
alleges that Sherwin and Boynton-Sherwin are liable for “Parental Alienation,” Second Am.

Compl. 28–30, Count XVII alleges that DCFS, Sherwin, Boynton-Sherwin, Zimmerman, and
Lampley are liable for “Tortious Interference with Parental Rights,” id. at 34–35, Count XIX
alleges that the same Defendants as well as Barry are liable for “Intentional Interference with
Custodial Relations,” id. at 36–37, and finally Count XXV alleges that the same group of
Defendants is liable for “Loss of Consortium,” id. at 47–49. The issue is that none of these are
recognized, standalone causes of action under Illinois law.
“Illinois courts have declined to recognize tortious interference with custodial rights as a
cause of action regardless of the damages claimed.” Hulsh v. Hulsh, 243 N.E.3d 1055, 1059 (Ill.
App. Ct. 2024), appeal allowed, 244 N.E.3d 272 (Ill. 2024). The Illinois Supreme Court has also
declined to recognize a claim for loss of consortium by parents “resulting from nonfatal injuries

to a child.” Vitro v. Mihelcic, 806 N.E.2d 632, 640 (Ill. 2004). The Court declines to break new
ground on these fronts.
Parental alienation is at least a recognized concept in the context of custody
determinations under Illinois law, see, e.g., In re Marriage of Stegeman, 2015 IL App (4th)
150396-U, ¶ 52 (discussing parental alienation in the context of considering modifications to a
custody determination), but the Court has found no example of parental alienation as a
standalone cause of action, let alone one that a federal court would have jurisdiction to entertain,
see generally Ankenbrandt v. Richards, 504 U.S. 689 (1992) (discussing the domestic relations
exception to a federal court’s jurisdiction); J.B. v. Woodard, 997 F.3d 714 (7th Cir. 2021)
(discussing abstention doctrines related to a child custody dispute). The Court finds that these
claims must be DISMISSED WITH PREJUDICE because amendment would be futile, either
because the causes of action are nonexistent or because the Court would lack jurisdiction.
c. Torts Related to Emotional Distress

Count XII alleges that Hayes, Owens, Shamblin, Zimmerman, Lampley, Sherwin,
Boynton-Sherwin, Barry, and Berg’s are liable for IIED, Second Am. Compl. 25–28, Count XXI
alleges that the same Defendants are liable for NIED, id. at 39–41, and Count XXXIV alleges
that Zimmerman, Lampley, Sherwin, Boynton-Sherwin, Barry, and Berg’s are liable for reckless
infliction of emotional distress, id. at 61–62. To assert an IIED claim under Illinois law, a
plaintiff “must [allege] that (1) the defendants’ conduct was extreme and outrageous; (2) the
defendants knew that there was a high probability that their conduct would cause severe
emotional distress; and (3) the conduct in fact caused severe emotional distress.” Swearnigen-El
v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir. 2010). Recklessness can support a
claim of IIED in some circumstances, Lopez Colunga v. Advoc. Health & Hosps. Corp., 232

N.E.3d 72, 78 (Ill. App. Ct. 2023), but the elements are different for allegations of NIED, see
Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 58 (Ill. 2016) (“Generally, to state a claim for
negligent infliction of emotional distress, a plaintiff must allege the traditional elements of
negligence: duty, breach, causation, and damages.”).
The Court previously dismissed an IIED claim asserted against Berg’s. Plaintiff’s
allegation “that it authorized others to enter and search [her] bus while it was in the impound lot”
was not sufficiently extreme and outrageous, necessitating dismissal. Dec. 10, 2024 Order 10–
11. Plaintiff’s amended claim against Berg’s is based on the same allegation: that Berg’s
“allowed unauthorized access to [her] bus by Zimmerman and law enforcement.” Second Am.
Compl. 27. The only additional conduct attributable to Berg’s in the Second Amended
Complaint relates to its pricing and accepted methods of payment. Id. at 24. But questionable
pricing structures and stinginess related to accepted payment methods are not “so extreme as to
go beyond all possible bounds of decency, and to be regarded as intolerable in a civilized

community” either. See Swearnigen-El, 602 F.3d at 864 (quotation marks omitted). The
emotional-distress torts asserted against Berg’s are DISMISSED WITH PREJUDICE because
Plaintiff has failed to rectify this previously identified deficiency.
d. Claims Based Upon False Statements
Plaintiff asserts three different claims related to allegedly false statements: (1) Count XV
alleges that Sherwin, Boynton-Sherwin, Zimmerman, and Barry are liable for defamation,
Second Am. Compl. 31–33; (2) Count XXII alleges that Zimmerman, Lampley, Sherwin,
Boynton-Sherwin, and Barry are liable for fraudulent misrepresentation, id. at 42–43; and (3)
Count XXXV alleges that Sherwin, Boynton-Sherwin, Zimmerman, and Barry are liable for
defamation by implication, id. at 62–64. The overarching issue with these claims is their lack of

factual specificity. For example, both Sherwin and Boynton-Sherwin allegedly made “false and
defamatory statements to law enforcement, DCFS, and third parties, accusing Plaintiff of
criminal behavior, including drug use and theft, and claiming she was unfit as a parent.” Id. at
32. “Although a plaintiff is not required to lay out the allegedly defamatory statements verbatim,
their substance must be pled ‘with sufficient precision and particularity so as to permit initial
judicial review of [their] defamatory context’ and ‘so that the defendant may properly formulate
an answer and identify any potential defenses.’” Osundairo v. Geragos, 447 F. Supp. 3d 727,
737 (N.D. Ill. 2020) (alteration in original) (quoting Green v. Rogers, 917 N.E.2d 450, 459 (Ill.
2009)). Simply setting forth “a summary of the types of statements” that were allegedly made is
insufficient. See Green, 917 N.E.2d at 460. Plaintiff’s allegations are summaries, not assertions
that particular statements were made and that their falsity was damaging to Plaintiff. This lack
of factual detail leads the Court to conclude that Counts XV and XXXV must be DISMISSED.
The non-specific nature of Plaintiff’s allegations is even more problematic for her claim

of fraudulent misrepresentation. See Second Am. Compl. 42–43. Defamation is subject to “the
usual rules for notice pleading established by Rule 8.” Muzikowski v. Paramount Pictures Corp.,
322 F.3d 918, 926 (7th Cir. 2003). But fraudulent misrepresentation is held to a higher standard
because Rule 9(b) provides that “a party who alleges fraud ‘must state with particularity the
circumstances constituting fraud.’” In re Boeing 737 MAX Pilots Litig., 638 F. Supp. 3d 838,
869 (N.D. Ill. 2022) (quoting Fed. R. Civ. P. 9(b)). “Rule 9(b) requires that facts such as the
identity of the person making the misrepresentation, the time, place, and content of the
misrepresentation, and the method by which the misrepresentation was communicated to the
plaintiff be alleged in detail.” Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006) (quotation
marks omitted). Plaintiff needs to be more specific about when, where, and what was said to

maintain her claim that she justifiably relied upon certain statements to her detriment. Count
XXII is also DISMISSED.
e. Count XIV: False Imprisonment
In Count XIV, Plaintiff alleges that Hayes, Shamblin, Owens, Sherwin, and Zimmerman
are liable for false imprisonment. Second Am. Compl. 30–31. “The elements of a cause of
action for false imprisonment are: (1) that the plaintiff was restrained or arrested by the
defendant; and (2) that the defendant acted without reasonable grounds (i.e., without probable
cause) to believe that an offense was committed by the plaintiff.” Grainger v. Harrah’s Casino,
18 N.E.3d 265, 276 (Ill. App. Ct. 2014). Restraint refers to a limitation on “an individual’s
personal liberty or freedom of locomotion.” Lopez v. Winchell’s Donut House, 466 N.E.2d 1309,
1311 (Ill. App. Ct. 1984). Plaintiff alleges that Zimmerman is liable because she “withheld
Plaintiff’s minor child, L.S., from [Plaintiff] for two weeks.” Second Am. Compl. 30. This
claim fails either because Plaintiff is seeking to assert L.S.’s rights (Zimmerman misused her

authority to prevent L.S. from exercising his freedom of locomotion, i.e., physical movement) or
because Plaintiff does not allege that Zimmerman prevented her from exercising her own
freedom of physical movement. Again, Plaintiff cannot assert L.S.’s rights as a pro se party.
Foster, 611 F. App’x at 877. As to Sherwin, she alleges that he “acted in concert with
Zimmerman to withhold L.S. from Plaintiff during this two-week period.” Second Am. Compl.
31. This claim must be dismissed for similar reasons, in that no restraint on Plaintiff’s physical
movement is alleged. Count XIV for false imprisonment as asserted against Sherwin and
Zimmerman is DISMISSED.
f. Count XXIII: Abuse of Process
In Count XVI, Plaintiff alleges that Sherwin, Boynton-Sherwin, and Barry are liable for

abuse of process. Second Am. Compl. 33–34. “Abuse of process requires (1) ‘[e]xistence of an
ulterior purpose or motive’ and (2) ‘[s]ome act in the use of the legal process not proper in the
regular prosecution of the proceedings.’” Leventhal v. Schenberg, 917 F. Supp. 2d 837, 843
(N.D. Ill. 2013) (alterations in original) (quoting Holiday Magic, Inc. v. Scott, 282 N.E.2d 452,
455 (Ill. App. Ct. 1972)). “The ‘mere institution of a suit or proceeding, even with a malicious
intent or motive, does not itself constitute an abuse of process.’” Id. (quoting Holiday Magic,
282 N.E.2d at 456). The plaintiff must allege that the court’s “process was used to accomplish
some result that is beyond the purview of the process,” such as an arrest, seizure of property, or
fraudulent and malicious issuance of summons. Kumar v. Bornstein, 820 N.E.2d 1167, 1172–74
(Ill. App. Ct. 2004). “The elements are strictly construed, as the tort of abuse of process is not
favored under Illinois law.” Id. at 1173.
Plaintiff’s allegations at best describe a malicious intent or motive in instituting
proceedings; she fails to allege that Sherwin, Boynton-Sherwin, and Barry misused civil

proceedings related to custody of L.S. to achieve some result that is not proper in the regular
prosecution of such a custody dispute. That they resorted to the courts, even with the most ill of
will, to try and prevent Plaintiff from enjoying custody over L.S. is not an abuse of this
process—it is an entirely foreseeable and sometimes intended result of a process related to child
custody. To the extent that Defendants’ other alleged conduct—namely lying during these
proceedings—was improper, the Court finds that this cause of action is needlessly duplicative of
Plaintiff’s other claims against these Defendants, such as defamation, see Second Am. Compl.
31–33, considering Illinois courts’ instructions to strictly construe abuse of process, see Kumar,
820 N.E.2d at 1173. Count XVI is DISMISSED WITH PREJUDICE because amendment would
be futile.

g. Count XXIV: Civil Conspiracy
In Count XXIV, Plaintiff alleges that all Defendants have formed a conspiracy to deprive
her of her rights. Second Am. Compl. 46–47. Civil conspiracy under Illinois law requires
sufficient allegations of: “(1) an agreement between two or more persons for the purpose of
accomplishing either an unlawful purpose or a lawful purpose by unlawful means; and (2) at
least one tortious act by one of the co-conspirators in furtherance of the agreement that caused an
injury to the plaintiff.” Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 509 (7th Cir.
2007) (citing McClure v. Owens Corning Fiberglas Corp., 720 N.E.2d 242, 258 (Ill. 1999)). In a
similar vein to the Court’s analysis of Plaintiff’s claims that private actors became state actors
via an unspecified agreement for purposes of § 1983, the Court finds that Plaintiff’s conclusory
allegations of a civil conspiracy are insufficient. Count XXIV is functionally an unnecessary
umbrella claim which attempts to hold each Defendant liable for each other’s allegedly tortious
conduct. This attempt falls short because Plaintiff fails to allege the basic details of any such

agreement, such as when it was formed and when each Defendant joined the conspiracy. See
Borsellino, 477 F.3d at 509. Count XXIV is DISMISSED.
CONCLUSION
Accordingly, Plaintiff Brandie M. Roberts’s Motion to Appoint Counsel, ECF No. 19, is
DENIED WITHOUT PREJUDICE, and her Second Amended Complaint, ECF No. 14, is
DISMISSED IN PART. The following claims are DISMISSED WITH PREJUDICE:
• Count I: Fourth Amendment, as against Berg’s, DCFS, ISP, and Abingdon;
• Count II: Fourteenth Amendment Procedural Due Process, as against Sherwin, Boynton-
Sherwin, Judge Andrew Doyle, and ISP;
• Count III: Fourteenth Amendment Substantive Due Process, as against DCFS, Sherwin,
Boynton-Sherwin;
• Count IV: Fourteenth Amendment Equal Protection, as against DCFS, Sherwin,
Boynton-Sherwin, ISP, and Abingdon;
• Count V: First Amendment, as against DCFS, Sherwin, Boynton-Sherwin;
• Count VI: Unlawful Detention, as against ISP and Abingdon;
• Count VII: Conspiracy to Deprive Civil Rights via 42 U.S.C. § 1985;
• Count VIII: Failure to Train or Supervise via Monell;
• Count IX: Deprivation of Property Without Due Process, as against Berg’s, ISP, and
Abingdon;
• Count XI: False Arrest, as against ISP and Abingdon;
• Count XII: IIED, as against DCFS and Berg’s;
• Count XIV: False Imprisonment, as against DCFS, ISP, and Abingdon;
• Count XVI: Abuse of Process;
• Count XVII: Tortious Interference with Parental Rights;
• Count XIX: Intentional Interference with Custodial Relations;
• Count XXI: NIED, as against Berg’s, DCFS, ISP, and Abingdon;
• Count XXIII: Malicious Prosecution, as against DCFS;
• Count XXV: Loss of Consortium;
• Count XXVII: Parental Alienation;
• Count XXVIII: Failure to Intervene as against Sherwin, Boynton-Sherwin, DCFS, ISP,
Abingdon;
• Count XXIX: Eighth Amendment;
• Count XXXIII: Invasion of Privacy, as against DCFS;
• Count XXXIV: Reckless Infliction of Emotional Distress, as against DCFS and Berg’s;

The following claims are DISMISSED:

• Count X: Trespass to Chattels, as against Zimmerman and Lampley;
• Count XIV: False Imprisonment, as against Sherwin and Zimmerman
• Count XV: Defamation
• Count XVIII: Conversion, as against Sherwin and Boynton-Sherwin
• Count XXII: Fraudulent Misrepresentation
• Count XXIV: Civil Conspiracy
• Count XXXII: Intentional Interference with Contractual Relations
• Count XXXV: Defamation by Implication
• Count XXXVI: construed as Breach of Contract

Only the following claims remain:
Count Defendants Pages
Count I: Violation of Fourth Amendment Rights Hayes, Owens, Shamblin, 9–10
Zimmerman
Count II: Violation of Fourteenth Amendment Hayes, Owens, Shamblin, 10–12
Procedural Due Process Zimmerman, Lampley
Count III: Violation of Fourteenth Amendment Zimmerman, Lampley 13–14
Substantive Due Process
Count IV: Violation of Equal Protection Clause Hayes, Owens, Shamblin, 14–16
Zimmerman, Lampley
Count V: First Amendment Retaliation Zimmerman, Lampley 16–17
Count VI: Unlawful Detention Hayes, Owens, Shamblin 17–18
Count IX: Deprivation of Property Without Due Hayes, Owens, Shamblin 22–23
Process
Count X: Trespass to Chattels Berg’s 23–24
Count XI: False Arrest Hayes, Owens, Shamblin 24–25
Count XII: IIED Zimmerman, Lampley, Sherwin, 25–28
Boynton-Sherwin, Hayes, Owens,
Shamblin
Count XIV: False Imprisonment Hayes, Owens, Shamblin 30–31
Count XVIII: Conversion Berg’s 35–36
Count XX: Negligence Berg’s, Zimmerman, Lampley, 38–39
Sherwin, Boynton-Sherwin,
Barry, Hayes, Owens, Shamblin,
ISP, Abingdon
Count XXI: NIED Zimmerman, Lampley, Sherwin, 39–41
Boynton-Sherwin, Hayes, Owens,
Shamblin
Count XXIII: Malicious Prosecution Zimmerman, Lampley, Sherwin, 43–46
Boynton-Sherwin, Barry
Count XXVI: Breach of Duty of Care Berg’s, DCFS, Zimmerman, 49–50
Lampley
Count XXVII: Violation of the First Amendment Zimmerman, Lampley 50–52
Count XXVIII: Failure to Intervene Hayes, Owens, Shamblin, 52–54
Zimmerman, Lampley
Count XXX: Respondeat Superior DCFS 55–56
Count XXXI: Negligent Supervision Berg’s, DCFS, ISP, Abingdon 56–58
Count XXXIII: Invasion of Privacy Berg’s, Zimmerman, Boynton- 59–60
Sherwin
Count XXXIV: Reckless Infliction of Emotional Zimmerman, Lampley, Sherwin, 61–62
Distress Boynton-Sherwin, Barry
Count XXXVII: Vicarious Liability Berg’s, DCFS, ISP, Abingdon 65–67

If she desires, Plaintiff may, by May 29, 2025, seek the Court’s leave to file another
amended complaint which omits the claims that the Court has dismissed with prejudice and, if
possible, addresses the deficiencies in the state-law claims that were not dismissed with
prejudice. The proposed amended complaint should be attached as an exhibit to the motion for
leave to file. Any motion for leave to file a proposed amended complaint that attempts to
reassert claims that have been dismissed with prejudice will be summarily denied for failure to
follow court orders. The Court will provide further directions regarding service after either the
time for Plaintiff to seek the Court’s leave to file an amended complaint has passed or the Court
has resolved Plaintiff’s request for such leave.

Entered this 8th day of May, 2025.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11046868. Public record. Not legal advice.