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