Opinion

Deairis Tipler v. Madelyn Daley, Grant Menges, and Calley R. Mize

Court
District Court, S.D. Illinois
Filed
Dec 12, 2025
Cited by
0 cases
Authority
More cited than 37.6%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEAIRIS TIPLER,

Plaintiff,

v. Case No. 25-CV-01712-SPM

MADELYN DALEY, GRANT

MENGES, and CALLEY R. MIZE,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

This matter comes before the Court for consideration of a Motion to Dismiss

for Failure to State a Claim filed by Defendants Madelyn Daley, Grant Menges, and

Calley R. Mize (Doc. 14); and a Motion to Correct Docket filed by Plaintiff Deairis

Tipler (Doc. 21). Having fully considered the issues presented, the Motion to Dismiss

(Doc. 14) is GRANTED and the Motion to Correct Docket (Doc. 21) is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Deairis Tipler initiated the present action against Defendants

Madelyn Daley, Grant Menges, and Calley R. Mize on September 3, 2025. (Doc. 3).

Tipler’s claims appear to arise from a prior attorney-client relationship between

himself and the three named Defendants, who are attorneys at Madelyn Daley &

Associates, a law firm in Belleville, Illinois. (See Doc. 11). Taken from the facts

alleged in Tipler’s original Complaint and his Amended Complaint, it appears that

Tipler previously retained Defendants to represent him in a state court criminal

matter.1 (See Docs. 1, 11).

In his Amended Complaint, Tipler purports to bring claims against

Defendants pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971),

alleging Defendants violated his First and Fourth Amendment rights. (Doc. 11).

Tipler alleges that Defendants violated his First Amendment rights by preventing

him from expressing his view of the case. (Id.). He states that he was yelled at,

belittled, shadow trapped, and called a criminal by his attorney. (Id.). He also

alleges that Defendants violated his Fourth Amendment rights by failing to

investigate his case. (Id.). He contends that his attorneys pressured him to accept

a plea deal rather than pursue trial; that an officer committed perjury and forged

his signature; and that no citation was provided for alleged violations. (Id.). He

alleges that Daley, Menges, and Mize misrepresented other criminal defendants

who hired their services; sat next to the prosecutor and worked for the prosecutor

rather than the defendants; and failed to provide adequate defense, amounting to

what he describes as ongoing “legal malpractice conduct.” (Id.). He claims that he

experienced emotional distress, breach of contract, and negligence; that he was

denied a refund for legal services rendered; and that defendants failed to meet their

professional capacities and comply with their oath requirements. (Id., p. 4). He

seeks $1,000,000 in damages and $15,000 in punitive damages. (Id.).

1 The Seventh Circuit has stated that “in ruling on a 12(b)(6) motion to dismiss, the court generally

considers only those facts alleged within the four corners of the complaint.” Gumm v. Molinaroli, 569

F. Supp. 3d 806, 827 (E.D. Wis. 2021). An amended complaint, whether filed as of right or with leave

of court, supersedes any original or prior complaint and becomes the operative complaint. See

MOORE’S FEDERAL PRACTICE: CIVIL § 12.20 (2025). The Court mentions the facts alleged in Tipler’s

original Complaint, as well as his Amended Complaint, for purposes of piecing together, as best as

possible, a more complete picture of the events giving rise to Tipler’s claims.

On September 3, 2025, the same day Tipler filed his Complaint in this Court,

the Clerk of Court issued summonses as to the three named Defendants. (See Doc.

4). Prior to executing of service of process, Tipler filed a Motion to Amend his

Complaint with the Court on September 9, 2025. (Doc. 5). On the same day, Tipler

filed a Motion for Service of Process at Government Expense. (Doc. 6). On September

15, 2025, this Court granted Tipler’s Motion to Amend Complaint pursuant to

Federal Rule of Civil Procedure 15(a)(2), ordering him to file his Amended Complaint

instanter. (Doc. 8). The Court, in addition, denied his Motion for Service of Process

at Government Expense. (Id.). By September 25, 2025, Tipler had not yet complied

with this Court’s order to file his Amended Complaint, and thus this Court notified

him that failure to file his amended pleading and comply with this Court’s order

would result in dismissal of his case pursuant to Federal Rule of Civil Procedure

41(b). (Doc. 9). On October 1, 2025, Summonses were returned executed as to

Defendants Daley, Menges, and Mize, indicating they were served on September 23,

2025. (Doc. 10).

On October 3, 2025, Tipler filed his Amended Complaint with the Court. (Doc.

11). On October 6, 2025, this Court issued new Summonses to Tipler for all three

Defendants. (Doc. 12). On October 13, 2025, Defendants filed the instant Motion to

Dismiss for Failure to State a Claim. (Doc. 14). One week later, on October 20, 2025,

Tipler filed his Response in opposition. (Doc. 17). On October 21, 2025, Summonses

were returned executed as to all three Defendants, indicating they were served on

October 16, 2025. (Docs. 18, 19, 20). On November 14, 2025, Tipler filed a Motion to

Correct the Docket, stating his belief that he filed the operative Amended Complaint

on September 9, 2025, and that the Clerk of Court failed to file this correctly on the

docket. (Doc. 21).

LEGAL STANDARD

A motion brought under Federal Rule of Civil Procedure 12(b)(6) is to test the

“sufficiency of the complaint, not to decide the merits.” Gibson v. City of Chicago,

910 F.2d 1510, 1520 (7th Cir. 1990). To withstand such a motion, the complaint must

contain enough factual allegations to “state a claim to relief that is plausible on its

face” and to “raise a right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007). A claim has facial plausibility when the

facts alleged permit the court to draw a reasonable inference that the defendant is

liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although detailed factual assertions are not required, the complaint must offer more

than mere “labels and conclusions” or “a formulaic recitation of the elements of a

cause of action.” Twombly, 550 U.S. at 570. In deciding a Rule 12(b)(6) motion, the

Court must accept as true all well-pleaded factual allegations and draw all

reasonable inferences in the plaintiff’s favor. McReynolds v. Merrill Lynch & Co.,

Inc., 694 F.3d 873, 879 (7th Cir. 2012). Furthermore, “in ruling on a 12(b)(6) motion

to dismiss, the court generally considers only those facts alleged within the four

corners of the complaint.” Gumm v. Molinaroli, 569 F. Supp. 3d 806, 827 (E.D. Wis.

2021). In Kuebler v. Vectren Corp., the Seventh Circuit highlighted that a plaintiff

opposing a Rule 12(b)(6) motion may elaborate on factual allegations consistent with

the pleadings but cannot introduce new facts or arguments that are inconsistent

with the complaint. 13 F.4th 631, 636 (7th Cir. 2021).

A lawsuit brought pursuant to Bivens v. Six Unknown Named Agents

authorizes the filing of constitutional tort suits against federal officers much in the

same way that 42 U.S.C. § 1983 authorizes such suits against state actors. 403 U.S.

388 (1971); see Economan v. Cockrell, Case No. 1:20-CV-32, 2020 WL 6874134, at

*21 (S.D. Ind. Nov. 23, 2020 (citing Prucha v. Watson, 2020 WL 6274840, at *4 (S.D.

Ind. Oct. 26, 2020); King v. Federal Bureau of Prisons, 415 F.3d 634, 636 (7th Cir.

2005)). In Bivens, the Supreme Court recognized an implied damages remedy

against federal officers for certain constitutional violations. 403 U.S. 388. Bivens

involved a claim for damages against federal narcotics agents for alleged Fourth

Amendment violations arising from a warrantless search, arrest, and the

unreasonable use of force in the plaintiff’s home against the plaintiff. Id. “The

purpose of Bivens is to deter individual federal officers from committing

constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001).

To be subject to liability for constitutional violations in a Bivens action,

plaintiff must allege that the defendant acted under color of federal law. See Case v.

Milewski, 327 F.3d 564, 567 (7th Cir. 2003). Two aspects of “under color of law” are

relevant here. First, it is established that “attorneys do not act under color of state

law for purposes of § 1983 or under color of federal law for purposes of Bivens,

regardless of whether they are court-appointed or privately retained.” Rider-El v.

United States, Case No. 2:22 CV 13022, 2023 WL 2761701, at *3 (E.D. Mich. April

3, 2023) (citing Polk County v. Dodson, 454 U.S. 312 (1981)). In Rider-El, plaintiff

filed suit against one court-appointed criminal defense attorney and one privately

retained criminal defense attorney alleging a conspiracy amongst his attorneys, the

prosecutor, and the judge to deprive him of his due process rights. Id. at *1. The

district court held, upon preliminary review, that plaintiff’s claims against his

former attorneys failed to state a claim upon which relief could be granted because

neither a court-appointed attorney nor a privately retained attorney act under color

of state or federal law such that they are subject to suit pursuant to § 1983 or Bivens.

Id. at *3. Similarly, in Agrawal v. Pallmeyer, plaintiff brought suit against a district

court judge and four private court-appointed attorneys alleging a conspiracy to

violate his rights pursuant to § 1983 and Bivens. 313 Fed. App’x. 866, 867 (7th Cir.

2009). The Seventh Circuit affirmed the district court’s decision to dismiss the

claims against the private attorneys, stating that they are not subject to suit under

§ 1983 nor Bivens because they were private attorneys who acted neither under color

of state law nor federal authority. Id. at 868 (citing Simmons v. Sacramento Cnty.

Sup. Ct., 318 F.3d 1156, 1161 (9th Cir. 2003); Fries v. Helsper, 146 F.3d 452, 458

(7th Cir. 1998); Bivens, 403 U.S. at 389; Richards v. Kiernan, 461 F.3d 880, 883 (7th

Cir. 2006)).

Second, there are two circumstances in which defendants may be found to act

“under color of state law” according to Seventh Circuit precedent. Case v. Milewski,

327 F.3d 564, 567 (7th Cir. 2003). “The first is when the state has cloaked the

defendants in some degree of authority—normally thought employment or some

other agency relationship.” Id. (citing Yang v. Hardin, 37 F.3d 282, 284 (7th Cir.

1994)). The second circumstance is “when the defendants have conspired or acted in

concert with state officials to deprive a person of his civil rights.” Id. (citing Adickes

v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). “‘In order to establish a conspiracy,

the plaintiff must demonstrate that the state official and the private party somehow

reached an understanding to deny the plaintiffs of their constitutional rights.’” Id.

(quoting Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1352 (7th Cir. 1985)) More

specifically, to state a § 1983 claim, plaintiff allege (a) that Defendants and state

actors reached an agreement to deprive Plaintiff of his constitutional rights, and (b)

overt acts taken by Defendants and state actors in furtherance of the conspiracy

actually deprived Plaintiff of those rights. See Heritage Operations Grp., LLC v.

Norwood, 2018 WL 4467152, at *7 (N.D. Ill. Sept. 18, 2018) (citing Beaman v.

Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015)); see Szeklinski v. Neary, No. 07-C-

222, 2007 WL 777539, at *2 (E.D. Wis. March 12, 2007) (“Where the facts in the

complaint are vague, conclusory and include no overt acts reasonably related to the

promotion of the alleged conspiracy the complaint fails to state a claim based on

conspiracy. Additionally, the factual allegations must suggest a meeting of the

minds between the alleged conspirators.”) (citation modified). The same pleading

requirement applies to cases brought against federal actors under a purported

Bivens claim. See Szeklinski, 2007 WL 777539, at *2 (finding that plaintiff’s

complaint against a federal actor alleging the existence of a conspiracy to deprive

his constitutional rights failed to state a claim because plaintiff’s conspiracy

allegations were merely conclusory).

As stated above, the Bivens decision allowed for an implied damages remedy

for an alleged violation of the Fourth Amendment by federal officers. See 403 U.S.

at 388. In the fifty years of Bivens jurisprudence, the Court has only extended its

holding to other contexts twice: first, to a claim under the Fifth Amendment for

workplace sex discrimination against a member of Congress, see Davis v. Passman,

442 U.S. 228 (1979); and second, to a claim under the Eighth Amendment for failure

to provide adequate medical care against federal prison officials, see Carlson v.

Green, 446 U.S. 14 (1980). Since Carlson, however, the Court has consistently

refused to authorize Bivens claims to new contexts; extending the Bivens cause of

action is now a “disfavored judicial activity.” Ziglar v. Abbasi, 582 U.S. 120

(2017) (quoting Ashcroft v. Iqbal, 556 U.S. (2009)).

DISCUSSION

First, this Court addresses the somewhat unusual procedural history in this

matter and Tipler’s Motion to Correct the Docket. (Doc. 21). On the face of the docket,

it appears that Tipler initially served his original Complaint, filed on September 3,

2025, on Defendants on September 23, 2025. (See Doc. 10). Tipler filed his First

Amended Complaint thereafter on October 3, 2025, and received summonses for the

Amended Complaint on October 6, 2025. (Docs. 11, 12). Defendants filed the instant

Motion to Dismiss on October 13, 2025, but the executed Summonses indicate they

were not yet served with the Amended Complaint until three days after they filed

their Motion to Dismiss on October 16, 2025. (Docs. 18, 19, 20). Despite this apparent

inconsistency, however, the Court is satisfied and finds that Defendants’ Motion to

Dismiss in fact addresses the operative Amended Complaint.

The thrust of Defendants’ argument in their Motion to Dismiss is that Tipler

fails to state a Bivens claim because Defendants are private attorneys not subject to

suit because they did not act under color of federal law. (See Doc. 14). Tipler’s original

Complaint states that he is invoking the Court’s subject matter jurisdiction under 28

U.S.C. § 1331, federal question jurisdiction, and alleges violations of his First, Fourth,

Fifth, and Sixth Amendments rights; with violations of 18 U.S.C. §§ 3571 and 1621,

denial of the right to a reasonable defense; and falsification of documents, none of

which are covered under Bivens or its progeny. (Doc. 3, p. 3). It is only in the Amended

Complaint that Tipler states he is pursuing his claims pursuant to Bivens, which

demonstrates to this Court that Defendants are attacking the operative pleadings in

this matter. Accordingly, this Court finds it is proper to address Defendants’ Motion

to Dismiss.

In their Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim,

Defendants Daley, Menges, and Mize argue that Plaintiff’s claims fail as a matter of

law because Bivens provides a remedy only against federal officers acting under color

of federal law; as private attorneys, they are not subject to liability. (Doc. 14, p. 1).

Plaintiff, in response, states that, viewing the facts in light most favorable to him, he

clearly alleges Defendants committed multiple constitutional violations, including

First, Fifth, Sixth, and Fourteenth Amendment violations, as well as breached their

professional duties to Plaintiff. (Doc. 17, p. 4). Plaintiff argues that his claims do not

rest solely on Bivens, but are grounded in violations of constitutional rights,

professional misconduct, and actions taken under color of law through joint

participation with prosecutors and other stater actors, which he argues are actional

conspiracy claims pursuant to Dennis v. Sparks, 449 U.S. 24, 27−28 (1980) and Lugar

v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). (Id., p. 5).

Specifically, Plaintiff alleges that Defendant Daley, in violation of his Sixth

Amendment right, “withdrew from representation then provided incomplete

discovery materials containing only two camera views of an incident video, while later

discovery revealed four,” which amounted to a violation of his right to fair process (Id.

(citing Powell v. Alabama, 287 U.S. 45 (1932)). Further, Tipler alleges that

Defendants Menges and Mize “acted with hostility, profanity, and intimidation when

Plaintiff attempted to raise objections about strategy,” which interfered with his right

to free expression and effective counsel under the First and Sixth Amendments. (Id.).

Tipler also argues that “Defendants’ conduct also constitutes professional misconduct

and a breach of ethical duties under 32 C.F.R. §§ 776.19−776.21, which impose

obligations of loyalty, diligence, competence, and honesty upon attorneys.” (Id.).

Plaintiff states that federal question jurisdiction exists because Defendants are

private individuals acting jointly with state or federal officials, and whether

Defendants’ conduct qualifies as acting under color of law as a joint conspiracy with

government actors presents factual issues that cannot be resolved at the pleading

stage, entitling him to proceed past the motion to dismiss phase. (Id., p. 6).

It is clear from the face of Plaintiff’s Amended Complaint he does not plausibly

state a claim for relief and that an action against privately retained criminal defense

attorneys cannot proceed under a Bivens cause of action. Similar to the district court’s

decision in Rider-El, in which plaintiff brought claims against a court-appointed

criminal defense attorney as well as a privately retained defense attorney, here, too,

Plaintiff may not maintain claims under Bivens against private attorneys because

they do not act under color of federal law. 2023 WL 2761701 at *3; see also Agrawal,

313 Fed. App’x. at 867 (affirming district court’s dismissal of § 1983 and Bivens claims

brought against private, court-appointed attorneys for failure to state a claim because

private attorneys, even appointed by the court, do not act under color of federal law).

Tipler alleges no facts that establish that Daley, Menges, or Mize were acting under

any federal or state authority in their capacity as his counsel. Accordingly, as private

counsel, Daley, Menges, and Mize are not subject to a Bivens action nor liability under

§ 1983 as privately retained counsel.

In addition, Tipler fails to adequately allege facts to support the existence of

a conspiracy amongst Defendants and actors within the court system to deprive him

of his constitutional rights. To succeed, the case law makes clear that Tipler must

allege that Defendants and federal actors reached an agreement to deprive him of

his constitutional rights, and he must also allege that overt acts were taken by

Defendants and the actors in question to deprive him of those rights. See Heritage

Operations Grp., LLC, 2018 WL 4467152, at *7 (citing Beaman, 776 F.3d at 510 (7th

Cir. 2015)). In his Amended Complaint, Tipler alleges that Defendants, as criminal

defense counsel, misrepresented other criminal defendants, sat next to the

prosecutor and worked for the prosecutor rather than the defendants, and failed to

provide adequate defense, amounting to what he describes as ongoing “legal

malpractice conduct.” (Doc. 11). Tipler’s response to Defendants’ Motion to Dismiss

makes further conclusory statements that the Defendants colluded with prosecutors

and state officials in violation of 28 U.S.C. §§ 1983, 1985 and 18 U.S.C. § 241−42,

none of which are causes of action he alleges in his Amended Complaint, and that

“[s]uch conduct constitutes joint participation and conspiracy with government

actors.” (Doc. 17, pp. 3−4). However, Tipler entirely fails to state facts which

plausibly allege the existence of any conspiracy, cooperation, agreement, or conduct

amongst Defendants and any federal (or state) actors, much less conduct that arises

to the level of a conspiracy. Instead, he makes vague references to Defendants’

treatment of him as his counsel and dissatisfaction with their representation, none

of which plausibly support a claim for a conspiracy to violate his constitutional

rights. See Szeklinski, 2007 WL 777539, at *2. His conclusory allegations, lacking

factual support, fail to plausibly state a claim for relief. Accordingly, his claims do

not survive Defendants’ 12(b)(6) Motion to Dismiss.

Furthermore, this Court additionally finds that Tipler’s claim against

Defendants presents a new Bivens context, such that this Court will not extend the

scope of liability under Bivens to cover Defendants’ alleged conduct. The Supreme

Court has recognized an implied action for damages to compensate persons injured

by federal officers only in a limited number of established contexts. See 403 U.S.

388. Bivens involved the warrantless arrest and seizure of the plaintiff and search

of his home in violation of the Fourth Amendment, and later cases included a Fifth

Amendment sex discrimination claim and an Eighth Amendment claim for denial of

medical care for a serious medical condition. Id.; Davis, 442 U.S. at 228; Carlson,

446 U.S. at 14. Here, no aspects of Tipler’s Amended Complaint allege conduct

similar to the claims at issue in Bivens, nor is he making claims similar to those

alleged in Davis and Carlson. Plaintiff’s claim of sweeping constitutional violations

against private attorneys is fundamentally different from anything recognized in

Bivens or subsequent cases, and extending the holding of Bivens is certainly not

warranted at this time. See Ziglar, 582 U.S. at 120.

CONCLUSION

For the reasons set forth above, the Motion to Dismiss for Failure to State a

Claim filed by Defendants Madelyn Daley, Grant Menges, and Calley R. Mize (Doc.

14) is GRANTED. Plaintiff Dearis Tipler’s Motion to Correct Docket (Doc. 21) is

DENIED. Because Plaintiff has already been given an opportunity to amend his

Complaint, this Court is not required to give Plaintiff another opportunity to amend,

and accordingly, this matter is DISMISSED with prejudice. See Luevano v. Wal-

Mart Stores, Inc., 722 F.3d 1014, 1024 (7th Cir. 2013). Plaintiff’s Amended Complaint

(Doc. 11) is DISMISSED with prejudice. The Clerk of Court is DIRECTED to close

this case on the Court’s docket.

IT IS SO ORDERED.

DATED: December 12, 2025

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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