Edward Tobey v. Brenda Chibucos

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 16-3927 & 16-4037

EDWARD TOBEY,

Plaintiff-Appellant/Cross-Appellee,

v.

BRENDA CHIBUCOS and MARY

STANTON,

Defendants-Appellees/Cross-Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-03962 — Samuel Der-Yeghiayan, Judge.

ARGUED NOVEMBER 28, 2017 — DECIDED MAY 15, 2018

Before BAUER, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. One man’s extradition is another

man’s “kidnapping.” Edward Tobey, the plaintiff here, has

three state-court convictions (one in Illinois and two in Florida)

for possession of child pornography. Tobey also has a pen-

chant for resisting the conditions of probation placed upon him

2 Nos. 16-3927 & 16-4037

by courts and by his probation officer. In 2013, his tussles with

those in authority led to an uncomfortable prison transport

ride from Illinois to Florida, followed by more than 106 days in

a Florida jail. In 2016, he brought federal and state claims

against his probation officer and an assistant state’s attorney

for this purportedly unwarranted “kidnapping.” The defen-

dants responded with a motion to dismiss and a request for

sanctions. The district court dismissed Tobey’s claims but

denied the sanctions. Both sides appealed. We affirm the

judgments in both appeals.

I.

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570, (2007)). Although we must accept as true the well-

pleaded factual allegations in the complaint, see Bielanski v.

County of Kane, 550 F.3d 632, 633 (7th Cir. 2008), we do not

credit legal conclusions, or “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements.” Iqbal, 556 U.S. at 678. Sometimes, a litigant “makes

our task of suspending credibility determinations difficult by

lodging some fairly outrageous accusations.”Payne v. Pauley,

337 F.3d 767, 771 (7th Cir. 2003). As will be apparent shortly,

this is one of those cases. Much of Tobey’s version of the facts

is belied by certified court records. Because the appeal comes

to us from the grant of a motion to dismiss for failure to state

a claim, we must “be true to our task” and draw our recitation

of the facts from the well-pleaded allegations of the complaint,

however improbable they may seem. Payne, 337 F.3d at 771.

Nos. 16-3927 & 16-4037 3

In 2009, Tobey placed an order for two videos from an

internet site advertising “videos of young girls.” R. 1-1, at 3.

When the videos arrived at Tobey’s Florida home, he signed

for them and was immediately arrested by U.S. Postal Inspec-

tors as part of a sting operation. Tobey’s arrest for receipt of the

videos led to searches of his computers in his homes in Florida

and Lake Bluff, Illinois. Those searches led to the discovery of

“downloads” on both computers that eventually led to charges

in both states.1 Tobey pled guilty to Florida charges for

possession of child pornography related to the videos on April

1, 2010. He was sentenced to four months’ imprisonment and

four years of probation. He was subsequently charged with

possession of child pornography related to the images down-

loaded to his Florida computer. He pled guilty to those charges

on September 1, 2011, and received a sentence of eight months’

imprisonment and a period of probation extending to 2020.2 In

March 2012, when Tobey finished serving his Florida prison

sentences, he returned to Illinois where he again pled guilty to

1

Although Tobey’s twenty-six page, one hundred and forty-five paragraph

complaint never identifies the charges to which he pled guilty in both states,

the euphemistically pled “videos of young girls” and the “downloads” to

his computers were not innocuous materials. Documents that he attached

to his complaint make patent all that is implied in Tobey’s complaint: the

videos that he purchased and the images that he downloaded consisted of

child pornography.

2

Other parts of the record, including undisputed Florida court orders

setting the terms of probation, suggest that Tobey’s Florida probation will

last until 2032. This unresolved factual issue is immaterial to the appeal,

however, because there is no question that Tobey was on probation at the

time of the events referenced in the complaint.

4 Nos. 16-3927 & 16-4037

possession of child pornography, this time for images discov-

ered on his Illinois computer. Defendant Mary Stanton, an

Assistant State’s Attorney, served as the prosecutor on Tobey’s

Illinois case. A Lake County, Illinois judge sentenced Tobey to

two and a half years of probation.

At Tobey’s request, supervision of his Florida probation

was transferred to Illinois through the Interstate Compact on

Adult Offender Supervision.3 Defendant Brenda Chibucos, a

Lake County probation officer, was assigned to supervise

Tobey for both his Florida and Illinois probation periods. One

condition of probation required Tobey to attend psychological

group sessions. Probationers were expected to continue to

attend these sessions until they successfully completed

polygraph tests administered by the probation office. Failing

to pass a polygraph resulted in the imposition of additional

conditions of probation. This turned out to be a problem for

Tobey.

Tobey attached to his complaint a June 22, 2014 report from

the therapist who provided to him sex offender specific

services, including individual and group therapy. According

to the therapist, in four attempts (July 2012; September 2012;

January 2013; and February 2014) to pass a sexual history

polygraph, Tobey had failed or provided “inconclusive”

answers every time. Tobey had successfully passed a “mainte-

3

All fifty states participate in the Interstate Compact on Adult Offender

Supervision (“ICAOS”), which governs the interstate transfer of supervision

of persons serving a period of probation. Florida joined the ICAOS in 2000,

and Illinois signed on in 2002. See www.interstatecompact.org (last visited

May 11, 2018).

Nos. 16-3927 & 16-4037 5

nance” polygraph, demonstrating that he was capable of

passing a polygraph despite his claims of anxiety. The thera-

pist noted that Tobey admitted extensive use of pornography

but denied “intentional use of child pornography,” even

though he pled guilty three times to possession of child

pornography. The therapist also observed that Tobey ex-

plained his failures by claiming “a lack of clarity in his mem-

ory” on specific issues “including certainty about the age of

prostitutes in the Philippines and the age of models in his

extensive history of pornography use.” R. 1-2, at 2. Tobey

completed five therapy sessions to work on clarifying his

sexual history and was poised to “make one last attempt” to

pass the sexual history polygraph at the time of the report.

Because of these issues, the therapist recommended a six

month extension of sex offender specific services.

In early 2013 (around the time of Tobey’s third polygraph

failure), Chibucos demanded that Tobey sign a “behavioral

agreement.” In a March 21, 2013 meeting with Chibucos and

two therapists, Tobey refused to sign the proposed agreement

until his attorney reviewed it. According to the complaint, the

behavioral agreement required Tobey to acknowledge that he

“had repeatedly failed the sexual history polygraph, had with

[sic] minor children, and that he had to pass rules and regula-

tions on ‘minor contact’ and pornography use.” R. 1-1, at 6–7.

A review of the proposed agreement, which Tobey attached to

his complaint, shows that Tobey mischaracterized the docu-

ment, and we credit the document over Tobey’s characteriza-

tion of it. The agreement was not with Chibucos but rather

with Blain and Associates, the therapy office providing Tobey

with sex offender services. The agreement states that it was

6 Nos. 16-3927 & 16-4037

proposed due to continued failure of the sexual history

polygraph, concerns about not following the rules of probation

(including rules related to contact with minors), and overall

lack of progress in the program. It required Tobey to pass the

sexual history polygraph; involve his significant others in the

process as deemed appropriate by his treatment team (by

honestly disclosing his offense to them); follow all the rules of

probation including restrictions on computer use and contact

with minors; and attend an additional five therapy sessions. It

warned that failure to meet the terms of the agreement by June

20, 2013 could result in suspension or discharge from the

program and the filing of a petition to revoke probation. As we

will discuss infra, these requirements were perfectly consistent

with the conditions of probation imposed by courts in two

states.

Tobey also asserted in the complaint that, during this same

time period, Chibucos wrote two memoranda to Stanton

requesting that she file petitions to revoke Tobey’s probation.

Both memoranda, which are attached to the complaint, are

dated March 18, 2013, but one was filed with the Lake County

Court on March 22, 2013 and the second was filed with the

same court on April 12, 2013. We will refer to them hereafter

by their respective filing dates for clarity. The March 22

memorandum stated that an investigator had discovered that

Tobey had internet access on his cell phone in violation of his

Illinois and Florida probation conditions, that he was directed

to remove that access by March 18, and that he told Chibucos

that he was advised by his attorney that he did not have to

disconnect internet service. The April 12 memorandum stated

that Tobey had failed to cooperate with sex offender treatment

Nos. 16-3927 & 16-4037 7

and was suspended from treatment due to problems with

cooperation. The April 12 memorandum also repeated the

allegations regarding internet access on Tobey’s cell phone.

Tobey denied in the complaint that he was ever informed that

he was suspended from treatment. His complaint is silent on

whether he had access to the internet on his cell phone and

whether he refused to remove that access in violation of his

probation conditions.

We pause for a moment to note that, at this point, the

allegations of the complaint depart substantially from the

version of events documented in all available public court

records. Tobey asserts that the public record is false and that

his sworn version of events is true, and so we must credit

Tobey’s version because his case was dismissed under Rule

12(b)(6). We mention this for two reasons. First, in light of

certified court documents, parts of Tobey’s version appear

highly improbable, and yet because of the posture of the case,

we must credit his sworn statements anyway. To the extent

that his personal observations differ from the public record, we

must resolve those conflicts in his favor on a motion to dismiss.

Sobitan v. Glud, 589 F.3d 379, 380 n.2 (7th Cir. 2009) (when

defendants dispute facts on a motion to dismiss, the facts as

alleged by the plaintiff are presumed to be true). Cf. Watkins v.

United States, 854 F.3d 947, 950 (7th Cir. 2017) (in the absence of

a plausible, good-faith basis to challenge the legitimacy of a

pleading, the court is entitled to take judicial notice of a

complaint and its contents). Granted, the conflict between

Tobey’s allegations and the certified court record poses a

thorny issue. Court records are not invariably accurate and

may at least contain typographical errors if not outright

8 Nos. 16-3927 & 16-4037

falsehoods. But the issue is not one that we need to resolve

because, as we discuss below, Tobey’s claims fail on other

grounds even if we credit his improbable allegations. Second,

we must address the version supported by the public record

when we attend to the arguments for sanctions in the district

court and on appeal. We return for now to Tobey’s version of

events.

According to Tobey, on April 15, 2013, he was scheduled

for an appointment at the Adult Probation Office to meet with

Chibucos regarding his failure to sign the behavioral agree-

ment. He first went to his lawyer’s office, but the lawyer was

unavailable so he proceeded to the Probation Office. While in

the waiting room, he was arrested by two Lake County Sher-

iff’s Deputies and taken to the Lake County jail. Chibucos and

Stanton had an agreement, approved by their supervisors, to

have Tobey taken into custody and the Sheriff obliged. Four

days later, Tobey spoke to his son-in-law, who had spoken to

Tobey’s criminal defense lawyer. That lawyer told his son-in-

law that the Illinois judge who presided over Tobey’s criminal

case said that Tobey would not be transported to Florida but

would be released from custody on April 22.

On April 21, despite what Tobey claims was an order

barring his removal from Illinois, and allegedly without any

legal process, Tobey was purportedly “kidnapped” from the

Lake County jail, shackled and placed in a van, where he

remained shackled for three and a half days as he was trans-

ported to the Manatee County, Florida jail. During this

“rough” ride, Tobey’s recent hernia repair began to fail,

resulting in a second surgery when he eventually returned to

Illinois. Tobey further alleged that, in order to provide legal

Nos. 16-3927 & 16-4037 9

cover for Chibucos and in furtherance of an agreement to force

Tobey to sign the behavioral agreement, Stanton sent Tobey’s

attorney an unstamped notice of arraignment dated April 18,

2013, on a Petition to Revoke Probation, for a hearing to be

held May 2, 2013. He alleged that Stanton knew that he would

be out of the jurisdiction on May 2, having arranged his

purportedly involuntary departure. He also alleged that

Stanton then sent a file-stamped copy of the notice and the

petition to Tobey’s lawyer, knowing counsel would not receive

the notice until after Tobey was removed from the state, all in

furtherance of an agreement between Stanton and Chibucos to

provide cover for their illegal coercion of Tobey.4

According to Tobey, Stanton remained silent in the face of

Tobey’s “kidnapping.” On May 16, 2013, Stanton and Tobey’s

criminal defense attorney appeared before the Illinois judge

who oversaw Tobey’s prosecution and entered an agreed order

to return Tobey to Illinois, supposedly pursuant to a

previously-issued bench warrant for Tobey’s return, although

Tobey denied that a bench warrant appeared in the court’s file.

A June 13, 2013 order attached to the complaint also directed

that Tobey be returned to Illinois to appear before that same

judge on June 27, 2013. But Stanton allegedly ignored those

4

Tobey asserts in the space of a few sentences both that he has attached a

true and correct copy of the notice and petition to his complaint as Exhibit

F, and that no petition is attached to the notice. Because there is a petition

to revoke attached to the notice that Tobey himself provided, we will

assume that the petition was in fact attached. R. 1-1, at 10. It is unclear

whether any hearing occurred in Illinois on May 2, but as we discuss below,

there were court appearances in both Illinois and Florida related to these

events.

10 Nos. 16-3927 & 16-4037

orders and made no attempts to secure Tobey’s return to

Illinois.

Instead, two months later, in August 2013, Stanton and

Chibucos sent to Manatee County, Florida, a modified behav-

ioral agreement containing many of the same terms as the

agreement Tobey previously declined to sign, and doubling to

ten the number of psychological counseling sessions that

Tobey would be required to attend at a cost of $40 per session.

After consulting with Florida counsel, and believing that he

would not be released from the Manatee County jail unless he

signed the behavioral agreement, Tobey asserted that he

signed the agreement under duress. After signing the agree-

ment, a Florida judge entered an order on a motion of the

Manatee County state’s attorney dismissing the “violation of

probation warrant” against Tobey. Yet according to Tobey:

There was no violation of probation warrant or any

other process justifying [Tobey’s] kidnaping and

transportation from Illinois to Florida nor for his

106-plus days in custody in Florida.

R. 1-1, at 12. The Florida court ordered Tobey returned to

Illinois and he did subsequently return to Illinois after serving

more than 106 days in jail purportedly without any legal

process authorizing his incarceration. When he returned to

Lake County, he claimed he was compelled by the defendants

to sign another behavioral agreement, identical to the one he

signed in Florida.

His troubles with Chibucos and Stanton continued after his

return. Chibucos would sometimes approve his travel out of

state and sometimes not. When an Illinois judge approved a

Nos. 16-3927 & 16-4037 11

visit to Tobey’s home from his adult daughter and her minor

child, Chibucos allegedly threatened Tobey with an additional

“kidnapping” if she ever obtained evidence that his minor

granddaughter visited his Lake Bluff house. Tobey forwent

visits with his daughter and granddaughter in fear of another

“kidnapping.” In June 2014, Stanton again filed a notice and

petition to revoke, this time on the grounds that Tobey failed

to successfully complete sex offender treatment, wilfully failed

to pay court costs and failed to complete 200 hours of public

service. Tobey claimed that the court took no action on this

purportedly frivolous petition to revoke.

On September 4, 2014, approximately three months after

the therapist’s report recommending a six-month extension to

Tobey’s therapy, the court granted Stanton’s motion to extend

Tobey’s Illinois probation six months. The next month, Tobey

passed a series of polygraph exams and was then no longer

restricted from visiting his daughter.5 Yet when he asked

Chibucos to visit his daughter in Oregon over the 2014 Christ-

mas holiday, she declined to grant permission unless his

therapist designated his daughter as his granddaughter’s

babysitter during the visit. Although Tobey secured the

designation from his therapist, Chibucos never granted

permission for the visit.

Tobey’s Illinois probation terminated in March 2015 but he

remained under Chibucos’s supervision for his Florida

probation. In May of that year, she granted him permission to

5

As we will discuss below, according to undisputed court probation

orders, passing the polygraph was not alone sufficient to remove the

restrictions on contact with minors.

12 Nos. 16-3927 & 16-4037

travel to Texas and Louisiana to visit adult friends. Three

months later, he requested permission to visit his daughter in

Oregon but Chibucos claimed that she lacked authority to

approve the visit and directed him to contact the probation

office in Florida. Tobey was not aware that any of the actions

taken against him by Chibucos and Stanton were allegedly

unlawful until his attorney reviewed his file in March 2016.

From March 2012 through the filing of his complaint, he

claimed that he remained under threat of incarceration without

due process.

On April 1, 2016, Tobey filed a six-count complaint against

Chibucos, Stanton and their unnamed supervisors. Count I

alleged illegal arrest and detention in violation of the Fourth,

Fifth, Eighth and Fourteenth Amendments. In particular, he

alleged that he was taken into custody, involuntarily trans-

ported to Florida and detained in a Florida jail for 106 days

without any legal justification and without any pre-incarcera-

tion hearing. Count II alleged that, in violation of due process

and his rights under those same Amendments, Chibucos

continues to threaten to have Tobey kidnapped and incarcer-

ated again if he visits his granddaughter; wrongfully refuses to

approve visits to his granddaughter; and repeatedly files

frivolous petitions to revoke his probation. He asserted that

Stanton provides legal cover for Chibucos’s actions. Count III

asserted supervisory liability for the actions of Stanton and

Chibucos alleged in the first two counts. Counts IV, V, and VI

alleged state law claims for malicious prosecution, intentional

infliction of emotional distress and conspiracy.

The defendants moved to dismiss the complaint under Rule

12(b)(6). They also sought sanctions for the filing of a frivolous

Nos. 16-3927 & 16-4037 13

complaint. They attached to their motion to dismiss 113 pages

of documents consisting largely of file-stamped and certified

copies of court records in Illinois and Florida, along with

printouts from the public dockets of those courts. The exhibits

also contain a small number of letters, emails and fax transmis-

sions. Relying on those documents for a very different version

of the facts, and asking the court to take judicial notice of some

of the exhibits, the defendants argued that some claims were

barred by the statute of limitations, that all of the defendants

were entitled to absolute immunity from suit, and that Tobey

failed to state any facts supporting a plausible claim.

The district court concluded that Count I was barred by the

statute of limitations, and in the alternative, that count failed

to state a claim. In reaching the latter conclusion, the court took

judicial notice of some of the exhibits to find that Tobey was

transported to Florida pursuant to a Florida court order. The

court remarked that none of the allegations suggested that

Stanton or Chibucos had the legal authority to arrest Tobey or

any ability to control what happened to him once Florida

authorities took him into custody. The court rejected Tobey’s

challenges to the authenticity of some of the documents on

which the court relied, finding that Tobey provided no

legitimate basis for his objection.

On Count II, the court again relied in part on the defen-

dants’ version of the facts in concluding that there was no

indication that the defendants ordered Tobey’s arrest or

procured the warrant that led to his removal to Florida. The

court also concluded that none of the conduct alleged rose to

a level of a constitutional violation. Instead, the defendants’

documents suggested that Tobey was represented by counsel

14 Nos. 16-3927 & 16-4037

at each stage of the proceedings, and that, in any event, he had

waived any objection to extradition when he requested transfer

of his probation supervision to Illinois. The court therefore

dismissed Count II for failure to state a claim.

Count III met the same fate because Tobey failed to allege

any acts personally taken by the supervisors of Chibucos and

Stanton, instead offering only speculation that the supervisors

approved their actions. Taking a belt-and-suspenders ap-

proach, the court also concluded that all of the defendants

were entitled to immunity for any actions they took with

respect to Tobey. Finally, the court declined to exercise

supplemental jurisdiction over the state law claims and

dismissed them without prejudice.

In a separate order, the court declined to award sanctions

that the defendants sought for the filing of a frivolous com-

plaint. The defendants cited the certified court records that

they attached to their motion to dismiss to demonstrate that

Tobey’s assertions of a lawless kidnapping were false, and to

establish that counsel could have easily discovered the truth

with simple searches of the dockets of courts in Illinois and

Florida. In the face of the motion for sanctions, Tobey and his

lawyers continued to insist that Tobey’s version of the facts

was correct and that the court records were inauthentic or

falsified. The district court found that the record lacked

sufficient support to show that Tobey and his lawyers acted in

a manner inconsistent with Rule 11. Tobey appeals and the

defendants cross-appeal.

Nos. 16-3927 & 16-4037 15

II.

We review de novo the district court’s decisions to dismiss

claims pursuant to Rule 12(b)(6), accepting as true all well-

pleaded facts and drawing all reasonable inferences in favor of

the non-moving party. Ball v. City of Indianapolis, 760 F.3d 636,

642–43 (7th Cir. 2014); Bielanski v. County of Kane, 550 F.3d 632,

633 (7th Cir. 2008). “Although the statute of limitations is an

affirmative defense, dismissal under Rule 12(b)(6) of the

Federal Rules of Civil Procedure is appropriate if the complaint

contains everything necessary to establish that the claim is

untimely.” Collins v. Village of Palatine, Ill., 875 F.3d 839, 842

(7th Cir. 2017).

The parties agree that the statute of limitations for section

1983 actions filed in Illinois is two years. Liberty v. City of

Chicago, 860 F.3d 1017, 1019 (7th Cir. 2017). Count I alleged that

Tobey was kidnapped on April 15, 2013 as he waited to meet

with Chibucos. He was placed in a van on April 21, 2013 and

arrived in Florida three and a half days later, which would

have been approximately April 25, 2013. He was then held in

Florida for 106 days. The Florida court ordered his return to

Illinois on August 15, 2013. Tobey filed his complaint on

April 1, 2016.

The statute of limitations begins to run when the plaintiff

has knowledge of the injury and knowledge that the defen-

dant, acting within the scope of his or her employment, may

have caused the injury. Liberty, 860 F.3d at 1019 (citing Arteaga

v. United States, 711 F.3d 828, 831 (7th Cir. 2013)). In the case of

false arrest and false imprisonment, the limitations period

begins to run when the alleged false imprisonment ends.

16 Nos. 16-3927 & 16-4037

Wallace v. Kato, 549 U.S. 384, 389 (2007). “Reflective of the fact

that false imprisonment consists of detention without legal

process, a false imprisonment ends once the victim becomes

held pursuant to such process—when, for example, he is

bound over by a magistrate or arraigned on charges.” Wallace,

549 U.S. at 389. Tobey asserts that he never received process

and that he was never brought before a judge. However, he

attached to his complaint the order of the Florida judge who

ordered his release on August 15, 2013, and a court may

consider that document in deciding a motion to dismiss.

Williamson v. Curran, 714 F.3d 432, 435–36 (7th Cir. 2013);

Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).

Even if we credit his allegations that he was never brought

before a judge in Illinois or Florida, his purportedly illegal

detention ended no later than August 2013, and the limitations

period therefore ended in August 2015. Yet he did not file his

complaint until April 1, 2016, at least seven months too late.

Tobey argues that he alleged in his complaint that he “did

not know that the actions of the defendants, known and

unknown, towards him were without process of law until he

had counsel view the records relating to his probation in

March of 2016.” R. 1-1, at 16–17. It is difficult to comprehend

Tobey’s argument on a factual level because a person who has

been “kidnapped” by sheriff’s deputies and transported to a

jail in another state would know whether he received any legal

process along the way. That is, he would know, as a factual

matter, if he had been brought before a judge. In fact, Tobey

affirmatively declares that he was not brought before a judge,

effectively conceding that he knew immediately as a factual

Nos. 16-3927 & 16-4037 17

matter that his arrest and imprisonment occurred without legal

process.

Tobey may also be suggesting that he did not know that the

acts of these government officials were unlawful until his

lawyer reviewed his file a few years later. But Tobey’s igno-

rance of his legal rights does not affect the accrual of his claim

for statute of limitations purposes. Massey v. United States,

312 F.3d 272, 276 (7th Cir. 2002) (claim accrues when plaintiff

has knowledge of both the existence and cause of his injury,

and not at a later time when he knows that the acts inflicting

the injury may constitute malpractice). See also United States v.

Kubrick, 444 U.S. 111, 122 (1979) (for statute of limitations

purposes, a plaintiff’s ignorance of his legal rights and igno-

rance of the fact and cause of the injury do not receive equal

treatment). “A plaintiff … armed with the facts about the harm

done to him, can protect himself by seeking advice in the …

legal community. To excuse him from promptly doing so by

postponing the accrual of his claim would undermine the

purpose of the limitations statute[.]” Kubrick, 444 U.S. at 123.

See also Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016)

(federal law governs the accrual date for section 1983 claims,

which is when the plaintiff knows or should know that his or

her constitutional rights have been violated). Tobey had all of

the knowledge he needed to file a claim as of August 2013. His

failure to investigate his legal rights for more than two more

years does not postpone the accrual of his claim. CSC Holdings,

Inc. v. Redisi, 309 F.3d 988, 992–93 (7th Cir. 2002) (a statute of

limitations begins to run once a plaintiff has knowledge that

would lead a reasonable person to investigate the possibility

that her legal rights have been infringed).

18 Nos. 16-3927 & 16-4037

Tobey finally argues that he is entitled to equitable tolling

because (1) the defendants engaged in continuing violations of

his rights and (2) despite all due diligence, he did not learn

vital information bearing on the existence of his claim until

March 2016 when he went to the Lake County Clerk’s Office

and examined the record. We have already addressed his

second argument: Tobey possessed all of the information

necessary to file his claim as of August 2013, and his ignorance

of the legal significance of that information does not toll his

claim. As for the continuing violation doctrine, Count I pleads

a discrete incident that occurred in a defined time frame that

ended in August 2013. “The continuing violation doctrine is …

applicable when the state actor has a policy or practice that

brings with it a fresh violation each day.” Savory v. Lyons,

469 F.3d 667, 672 (7th Cir. 2006). See also Clark v. City of Braid-

wood, 318 F.3d 764, 767 (7th Cir. 2003) (under federal law, the

continuing violation doctrine does not save an otherwise

untimely suit when a discrete incident of unlawful conduct

gives rise to continuing injuries because the plaintiff can bring

a single suit based on an estimation of total injuries); CSC

Holdings, 309 F.3d at 992 (equitable tolling operates until the

plaintiff knew or by reasonable diligence should have known

of both the injury and its governing cause). Although Count II

purports to allege a continuing violation of his rights, Count I

is focused on a specific incident that ended more than two

years before Tobey filed his complaint. The continuing

violation doctrine simply does not apply to Count I. The

district court correctly concluded that Count I is barred by the

statute of limitations.

Nos. 16-3927 & 16-4037 19

III.

In Count II, Tobey pled that: (1) Chibucos repeatedly

threatened and continues to threaten to have Tobey kidnapped

and removed to Florida again if he visits his granddaughter;

(2) Chibucos refused and continues to refuse to permit Tobey

to visit his granddaughter in Oregon, falsely claiming a lack of

jurisdiction over his requests; and (3) Stanton gave and

continues to give cover of law to Chibucos’s illegal acts by

filing petitions to revoke probation and a motion to extend

probation. Tobey again alleged in Count II that he had no basis

for knowing that the defendants’ acts were illegal until he

reviewed court documents in March 2016.6

In an argument encompassing both Counts I and II, Tobey

asserts on appeal that the district court erred in relying on the

documents supplied by the defendants in their motion to

dismiss. He contends that a court may not rely on such

documents without converting the motion to dismiss to a

motion for summary judgment. Moreover, Tobey:

6

To the extent that the past threats and past conduct of Chibucos and

Stanton alleged in Count II occurred more than two years prior to the filing

of the complaint, those claims were properly dismissed on statute of

limitations grounds as we explained above. Tobey did not plead particular

dates in this count, and the analysis which follows must necessarily address

only conduct that was alleged to have taken place within the two years

prior to the filing of the complaint. That conduct consists entirely of threats

to remove him to Florida if he visits his minor granddaughter, refusals to

approve visits with his minor granddaughter, and the provision of “legal

cover” for these threats and refusals.

20 Nos. 16-3927 & 16-4037

challenges the accuracy of defendants’ documents,

such as those purporting to show plaintiff in court

before another judge without any transcript of the

proceedings and where plaintiff states from the time

of his arrest to his return from Florida over 106 days

later he never appeared before a judge, and further

asserts that some of the documents misrepresent

what actually occurred.

Brief of Appellant, at 26. Tobey maintains that he was taken

into custody on April 15, 2013, not on April 22, the date

documented in court records produced by the defendants. He

contends that, contrary to the assertions in the documents

produced by the defendants, he was not brought before a

judge when he was taken into custody in Lake County, nor did

he see a judge during his Florida incarceration, including at the

time of his release. He also attacks the defendants for claiming

“without foundation, that plaintiff was represented by counsel

throughout all events.” Brief of Appellant, at 27. He casts

doubt on the validity of a Florida warrant that the defendants

attached to their motion to dismiss, and generally attacks the

validity of several of the documents submitted by the defen-

dants. Finally, he argues that, in dismissing the complaint, the

district court ignored the continuing nature of the threats and

actions of the defendants.

Although a court may generally take judicial notice of

public records, under Federal Rule of Evidence 201, a court

may judicially notice only a fact that is not subject to reason-

able dispute. White v. Hefel, 875 F.3d 350, 358 (7th Cir. 2017);

Olson v. Champaign County, Illinois, 784 F.3d 1093, 1097 n.1 (7th

Cir. 2015) (as “a general rule, we may take judicial notice of

Nos. 16-3927 & 16-4037 21

public records not attached to the complaint in ruling on a

motion to dismiss under Rule 12(b)(6)”).

A motion under Rule 12(b)(6) can be based only on

the complaint itself, documents attached to the

complaint, documents that are critical to the com-

plaint and referred to in it, and information that is

subject to proper judicial notice. See Fed.R.Civ.P.

10(c) (written instrument that is exhibit to pleading

is part of pleading for all purposes)[.] … If a moving

party relies on additional materials, the motion must

be converted to one for summary judgment under

Rule 56.

Geinosky, 675 F.3d at 745 n.1. See also Daniel v. Cook County,

833 F.3d 728, 742 (7th Cir. 2016) (courts routinely take judicial

notice of the actions of other courts or the contents of filings in

other courts but may take judicial notice of findings of fact

from another court proceeding only if the fact is not subject to

reasonable dispute); Hennessy v. Penril Datacomm Networks, Inc.,

69 F.3d 1344, 1354 (7th Cir. 1995) (“In order for a fact to be

judicially noticed, indisputability is a prerequisite.”). “Judicial

notice is a powerful tool that must be used with caution.”

Daniel, 833 F.3d at 742.

The date of Tobey’s arrest and whether he was taken before

a judge during these events are matters that are arguably

subject to reasonable dispute and therefore not a proper subject

of judicial notice. Court records, like any other documents,

may contain erroneous information. Tobey, who obviously has

first-hand knowledge of his own arrest, swears under penalty

of perjury that he was arrested on April 15, not April 22, 2013.

22 Nos. 16-3927 & 16-4037

Tobey also asserts under penalty of perjury that he was never

taken before a judge at any time after his arrest, prior to his

removal to Florida, or after his arrival in a Florida jail. He

contends that court records to the contrary are incorrect or

have been falsified. Tobey’s sworn account of events to which

he was a personal witness provides a plausible, good-faith

basis to challenge the legitimacy of those documents. Watkins,

854 F.3d at 950. Because his assertions contradict certified court

records from two different states, we note again the improba-

bility of Tobey’s version of events, but it was neither proper

nor necessary to rely on the defendants’ documents to resolve

genuinely disputed facts (such as the date of the arrest and

whether Tobey was brought before a court) in order to dismiss

Count II.

That is not to say that a court must ignore all of the docu-

ments that the defendants attached to their motion to dismiss.

As we noted, a Rule 12(b)(6) motion may be based, in part, on

documents that are critical to the complaint and referred to in

it as well as information properly subject to judicial notice.

Geinosky, 675 F.3d at 745 n.1. The defendants attached to their

motion two Florida Orders of Sex Offender Probation and one

Illinois Order and Certificate of Felony Probation, all file-

stamped by those courts and bearing indicia of reliability

(including a certification of authenticity in the case of the

Illinois document). R. 11-2, Exs. A, C and F. Tobey’s complaint

contains innumerable references to the fact of his probation

and the conditions set by judges in two states. He has not

challenged the authenticity of these particular documents or

the conditions of probation set forth in the courts’ orders. In

these circumstances, the conditions of probation set forth in

Nos. 16-3927 & 16-4037 23

these documents are subject to judicial notice. See Daniel,

833 F.3d at 742.

In addition to standard conditions of probation, each court

imposed additional constraints relevant to the circumstances

of Tobey’s crimes. For example, the Illinois court ordered an

“open mandate as directed by probation” for Tobey to undergo

medical or psychiatric treatment. The Illinois court also

ordered that Tobey’s probation be assigned to the Sex Offender

Unit, that he comply with all of the rules of that unit, and that

he was prohibited from all “internet usage unless ap-

proved/monitored - except for work purposes[.]” The Florida

orders also prohibited internet access but under slightly

different terms. Tobey was not allowed internet access “until

a qualified practitioner in the offender’s sex offender treatment

program, after a risk assessment is completed, approves and

implements a safety plan for the offender’s accessing or using

the internet or other computer services.” The Florida order

further forbade contact with children under the age of eighteen

except for supervised visits that could be approved by the

court after a recommendation from a qualified practitioner

who had conducted a risk assessment, and only if Tobey was

undergoing or had successfully completed a sex offender

therapy program. Florida also required successful completion

of polygraph exams as part of his treatment program. As

Tobey himself pled, Illinois also required that he participate in

psychological group therapy sessions and that he pass poly-

24 Nos. 16-3927 & 16-4037

graph exams administered by probation officers as part of his

sex offender treatment program.7

In the context of those undisputed court orders, we con-

sider the allegations of Counts I and II and must conclude that

the defendants were entitled to immunity from suit. Prosecu-

tors and probation officers are absolutely immune from suits

challenging conduct intimately associated with the judicial

phase of the criminal process. Van de Kamp v. Goldstein, 555 U.S.

335, 340–41 (2009) (prosecutors); Imbler v. Pachtman, 424 U.S.

409, 430 (1976) (prosecutors); Dawson v. Newman, 419 F.3d 656,

662 (7th Cir. 2005) (parole officers); Copus v. City of Edgerton,

151 F.3d 646, 649 (7th Cir. 1998) (probation officers). Illinois

courts follow the federal law on absolute immunity. See Frank

v. Garnati, 989 N.E.2d 319, 320–21 (Ill. App. Ct. 2013); White v.

City of Chicago, 861 N.E.2d 1083, 1088–94 (Ill. App. Ct. 2006).

A careful review of the complaint reveals that Tobey

accuses Stanton of nothing more than filing motions with the

court to extend his probation date and to revoke his probation,

and setting hearing dates to accomplish those goals. Although

he suggests that Stanton’s motives were to provide cover for

7

The first Florida order was entered May 12, 2010 and provided a term of

120 days of imprisonment followed by four years of probation to run

concurrently on each of two counts. The second Florida order was entered

on September 1, 2011 and ordered an additional 144 days of imprisonment

followed by four consecutive five-year terms of probation, for a total of

twenty years of probation. The Illinois order was entered on January 27,

2012, and provided for a sentence of thirty months’ probation, which was

subsequently extended six months. Tobey was thus subject to the Florida

conditions of probation during the entire period of the events set forth in

the complaint. He was subject to the Illinois conditions until March 6, 2015.

Nos. 16-3927 & 16-4037 25

unlawful actions by Chibucos, her motives are irrelevant to the

absolute immunity question when the actions she is accused of

taking are intimately associated with the quasi-judicial phase

of the criminal process. Archer v. Chisholm, 870 F.3d 603, 612

(7th Cir. 2017) (prosecutors are absolutely immune for actions

they undertake in their capacities as prosecutors, even includ-

ing malicious prosecution unsupported by probable cause);

Doermer v. Callen, 847 F.3d 522, 530 (7th Cir. 2017) (prosecutors

and officials who fill quasi-judicial and quasi-prosecutorial

roles are entitled to absolute immunity from damages stem-

ming from many of their official acts, no matter how erroneous

or harmful). Probation and parole officials are entitled to

absolute immunity “for their activities that are analogous to

those performed by judges.” Dawson, 419 F.3d at 662; Wilson v.

Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996). “These include, for

example, acts associated with the decision to grant, revoke, or

deny parole, or the signing of an arrest warrant.” Dawson,

419 F.3d at 662. See also Smith v. Gomez, 550 F.3d 613, 619 (7th

Cir. 2008) (parole officer and supervisor entitled to absolute

immunity for placing a “parole hold” on plaintiff); Walrath v.

United States, 35 F.3d 277, 281 (7th Cir. 1994) (parole board

members are absolutely immune from suit for their decision to

grant, deny, or revoke parole); Thompson v. Duke, 882 F.2d 1180,

1184–85 (7th Cir. 1989) (parole board members are entitled to

absolute immunity not only for the actual decision to revoke

parole but also for activities that are part and parcel of the

decision process, including scheduling a hearing); Hamilton v.

Daley, 777 F.2d 1207, 1213 (7th Cir. 1985) (probation revocation

is a criminal proceeding, and prosecutors are absolutely

immune from suit for acts taken in initiating a probation

26 Nos. 16-3927 & 16-4037

revocation proceeding). Stanton enjoys absolute immunity for

the conduct alleged in both Counts I and II.

Similarly, Tobey accuses Chibucos of demanding that he

sign a behavioral agreement, filing memoranda with Stanton

requesting the revocation of his probation, and continuing to

warn him of the consequences of his failures to follow court-

ordered conditions of probation. Asking a probationer to

adhere to conditions of probation, warning him of the conse-

quences if he fails to do so, and filing requests for revocation

are not violations of section 1983; they are the job description

for the often thankless job of probation officer. Moreover, in

filing the memoranda requesting that the state’s attorney begin

proceedings to revoke probation, Chibucos was engaged in a

quasi-judicial function for which she is protected by absolute

immunity. Dawson, 419 F.3d at 662; Smith, 550 F.3d at 619;

Walrath, 35 F.3d at 281. This absolute immunity extends to all

of Chibucos’s conduct in Count I and some of the conduct

alleged in Count II.

Absolute immunity does not, however, extend to day-to-

day duties in the supervision of a parolee or investigating and

gathering evidence for revocation. Dawson, 419 F.3d at 662. See

also Archer, 870 F.3d at 612–13 (absolute immunity does not

shield prosecutors from liability for actions that are not

intimately associated with the judicial phase of the criminal

process, nor does it apply when they are performing

non-prosecutorial actions, such as administrative and investi-

gatory activities). Count II asserts that Chibucos continued to

repeatedly warn Tobey that he would be returned to Florida if

he visited his granddaughter without approval, and that

Chibucos repeatedly refused to allow those visits, at least in

Nos. 16-3927 & 16-4037 27

part claiming that she lacked jurisdiction to approve the visits.

We again look to the undisputed Florida court orders setting

forth the conditions of Tobey’s probation. Chibucos was

correct that Tobey’s probation could and likely would be

revoked if he visited his minor granddaughter without

following the terms set forth in the Illinois and Florida court

orders. And Chibucos, in fact, had no authority personally to

grant or deny visits under the terms of the Florida probation

orders. Those orders require approval from a Florida court

before Tobey may have a supervised visit with a minor, and

only after certain conditions are met. These particular allega-

tions in Count II do nothing more than accuse Chibucos of

performing her duties as a probation officer pursuant to a

court order, and therefore this part of Count II does not state

a claim under section 1983.

Moreover, federal courts are required by Younger v. Harris,

401 U.S. 37 (1971), to abstain from taking jurisdiction over

federal constitutional claims that involve or call into question

ongoing state proceedings. Middlesex County Ethics Committee

v. Garden State Bar Association, 457 U.S. 423, 431 (1982); Village

of DePue, Ill. v. Exxon Mobil Corp., 537 F.3d 775, 783 (7th Cir.

2008). Tobey’s Florida probation is ongoing and extends at

least to 2020 and possibly to 2032. To the extent that Tobey asks

this court to take action against Chibucos, an Illinois probation

officer supervising a Florida probationer under the interstate

compact, for her continuing acts of supervision, Tobey is asking

this court to interfere with an ongoing state matter. Sarlund v.

Anderson, 205 F.3d 973, 975 (7th Cir. 2000) (section 1983 claims

may be barred by Younger abstention when a plaintiff seeks to

derail an ongoing probation revocation proceeding). As the

28 Nos. 16-3927 & 16-4037

district court noted, if Tobey has a problem with how his

probation officer is treating him, he may easily lodge his

objections in the state court overseeing his probation. Federal

courts generally may not intervene in ongoing state criminal

proceedings.

Finally, Tobey complains that he was coerced into signing

a behavioral agreement, was ordered to give up internet access

on his phone and is subject to continued refusals to visit his

granddaughter. Based on the undisputed Florida and Illinois

probation orders, these are all court-ordered conditions of

Tobey’s probation. If Tobey is seeking release from the

conditions of probation imposed on him by the courts, a

petition for a writ of habeas corpus is the appropriate vehicle for

seeking relief, not a lawsuit for damages under section 1983.

Williams v. Wisconsin, 336 F.3d 576, 579–80 (7th Cir. 2003). The

restrictions that make up probation are considered a type of

confinement rather than conditions of confinement. Williams,

336 F.3d at 579; Drollinger v. Milligan, 552 F.2d 1220, 1224–25

(7th Cir. 1977). The restrictions that Tobey challenges define

the perimeters of his confinement. If he wishes to challenge the

imposition of these conditions, he must do so in a habeas

proceeding after exhausting his state court remedies.

In short, Count I is barred by the statute of limitations.

Counts I and II are also barred by claims of immunity. The

continuing conduct claims in Count II also fail to state a claim,

and in any case are subject to Younger abstention. Having

determined that Counts I and II may not proceed, it is easy to

affirm the dismissal of Count III, which seeks liability for those

persons supervising Stanton and Chibucos when they commit-

ted the acts alleged in the first two counts. Because Count III

Nos. 16-3927 & 16-4037 29

depends entirely on the liability of Stanton and Chibucos

under Counts I and II, Count III must necessarily be dismissed.

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (jury

verdict in favor of defendant police officer for purported

constitutional injury to plaintiff was also conclusive as to city

and police board where they were sued on a theory that they

were liable for police officer’s conduct); Hart v. Mannina,

798 F.3d 578, 596 (7th Cir. 2015) (where court properly dis-

missed section 1983 claims against police officers, claims

against supervisors also fail); Hamilton, 777 F.2d at 1213 n.5

(because absolute immunity protects prosecutorial decisions,

supervision of the prosecutors who make these decisions is

similarly immune).

The district court declined to exercise supplemental

jurisdiction over the remaining state law claims for malicious

prosecution, intentional infliction of emotional distress and

conspiracy, pled in Counts IV, V and VI, respectively. Gener-

ally, we review for abuse of discretion a district court's

decision not to exercise supplemental jurisdiction over a

plaintiff’s state-law claims. Hagan v. Quinn, 867 F.3d 816, 820

(7th Cir. 2017). Tobey does not argue that the district court

mischaracterized these claims as being raised under state

rather than federal law, and has not specifically challenged the

district court’s decision not to exercise supplemental jurisdic-

tion. We may therefore summarily affirm. His arguments

regarding Counts IV, V, and VI are perfunctory and undevel-

oped and are thus waived. Sutterfield v. City of Milwaukee,

751 F.3d 542, 553 (7th Cir. 2014). We affirm the judgment

dismissing the complaint in its entirety.

30 Nos. 16-3927 & 16-4037

IV.

The defendants moved for sanctions in the district court

under Federal Rule of Civil Procedure 11. The district court

declined to grant them, and we review that decision for abuse

of discretion. Northern Illinois Telecom, Inc. v. PNC Bank, N.A.,

850 F.3d 880, 883 (7th Cir. 2017); Cooney v. Casady, 735 F.3d 514,

518 (7th Cir. 2013). The defendants asserted that there were

obvious statute-of-limitations problems with the key claims,

that publically available court records contradict most of

Tobey’s key factual assertions, and that his attorneys failed to

conduct a reasonable investigation prior to filing the action.

Although a court must credit the well-pled allegations of the

complaint when deciding a motion under Rule 12(b)(6), we are

not so confined when considering a motion for sanctions. The

district court was (and this court is) free to consider the public

court records cited by the defendants at this stage, and we now

turn to the much more likely sequence of events that led to this

suit.

Court dockets in Illinois and Florida show that an extradi-

tion action was initiated against Tobey in Lake County, Illinois,

in April 2013. The process began when Chibucos shared

Tobey’s probation violations with her Florida counterpart,

Andrew Lanzing.8 He, in turn, filed a sworn and notarized

8

A receiving state is required to notify the sending state of an act or pattern

of behavior requiring retaking within thirty calendar days of discovery by

submitting a violation report. See Rule 4.109 of the ICAOS Rules, which can

be found under the “Legal” tab at https://www.interstatecompact.org/

midwest/illinois (last visited May 11, 2018). The Rules have the force and

(continued...)

Nos. 16-3927 & 16-4037 31

“Affidavit Violation of Probation” with the Circuit Court in

and for Manatee County, Florida, leading to a Florida judge

issuing an April 18, 2013 warrant for Tobey’s arrest. On the

same day that warrant was issued, Stanton filed a Petition for

Revocation in the Circuit Court of Lake County, Illinois. But

before the Illinois Petition could be heard, Tobey had been

arrested at the request of Florida authorities on April 22 (not

on April 15 as he alleged, and as we were obligated to credit on

the Rule 12(b)(6) motion), and the process of removing him to

Florida had begun. The certified court records include the

Florida arrest warrant, and references to court appearances by

Tobey and his lawyer in Illinois on April 23, within twenty-

four hours of his arrest. Florida dockets show that he was

represented by a different lawyer in Florida proceedings and

that she waived her client’s personal appearance at arraign-

ment and all pre-trial hearings. The records also include

Tobey’s signature on his “Offender’s Request for Interstate

Compact Transfer,” signed January 9, 2012. In that document,

he agreed to return to the sending state (in this case, Florida)

when ordered to do so by either the sending or receiving state

(Illinois), agreed not to resist any effort to return him to the

sending state, and waived any constitutional right he had to

extradition.9

8

(...continued)

effect of statutory law and are binding in the compacting states. Id. Illinois

is a compacting state. 45 ILCS 170/5.

9

See Rule 3.109 of the ICAOS Rules. An ICAOS Advisory Opinion

interpreting that Rule holds that, in seeking a compact transfer of supervi-

(continued...)

32 Nos. 16-3927 & 16-4037

The records that Tobey himself attached to his complaint

reveal that a surveillance officer discovered in March 2013 that

Tobey had internet access on his cell phone in violation of the

conditions of probation of both Illinois and Florida. When

directed to disconnect that internet access, Tobey declined,

saying that his attorney told him that he did not have to

comply. By Tobey’s own admissions in his complaint, after

being told that he had failed the sexual history polygraph

multiple times, he refused to sign the proposed behavioral

agreement with his therapists unless his attorney approved it.

In other words, Tobey’s own complaint supplies extensive

facts supporting the lawful revocation of his probation.

Chibucos was not only allowed to share this information with

her Florida counterpart; she was required by the interstate

compact to do so. Once Tobey was removed to Florida for

revocation proceedings in that state, Chibucos and Stanton had

no control over the Florida proceedings (or lack of proceed-

ings, as Tobey has claimed).

Tobey’s response to much of this in the district court and on

appeal has been to double down on the claims he made in his

verified complaint,10 namely, that he was arrested a week

9

(...continued)

sion, an offender accepts that a sending state can retake him or her at any

time and that formal extradition hearings would not be required.

10

Although the Federal Rules of Civil Procedure do not require it in this

instance, Tobey filed a verified complaint. See Fed. R. Civ. P. 11 (“Unless a

rule or statute specifically states otherwise, a pleading need not be verified

or accompanied by an affidavit.”). But see also Fed. R. Civ. P. 23.1(b)

(continued...)

Nos. 16-3927 & 16-4037 33

before court documents indicate and that court records are

mistaken or falsified.11 He corroborates this claim with a

10

(...continued)

(requiring a verified complaint for shareholder derivative suits); Fed. R. Civ.

P. 65(b)(1) (requiring a verified complaint when requesting a temporary

restraining order without notice to the adverse party). Tobey attached a

signed “Verification” statement to the complaint “declar[ing] under penalty

of perjury under the laws of the United States of America that the facts

stated in the foregoing complaint are true and correct to be [sic] the best of

my knowledge, information, and belief.” R. 1-1, at 27. See 28 U.S.C. § 1746

(setting forth the proper form for unsworn declarations under penalty of

perjury). “[A] verified complaint is not just a pleading; it is also the

equivalent of an affidavit for purposes of summary judgment, because it

contains factual allegations that if included in an affidavit or deposition

would be considered evidence, and not merely assertion.” Beal v. Beller,

847 F.3d 897, 901 (7th Cir. 2017). Federal Rule 11 requires that a pleading be

signed by an attorney of record or by a party personally if the party is

unrepresented. Tobey’s complaint is signed by one of his attorneys, who

thereby certified to the court that, among other things, “to the best of [his]

knowledge, information, and belief, formed after an inquiry reasonable

under the circumstances … the factual contentions have evidentiary

support or, if specifically so identified, will likely have evidentiary support

after a reasonable opportunity for further investigation or discovery[.]”

Fed. R. Civ. P. 11.

11

In his briefs and at oral argument, Tobey repeatedly asserted that a

report from his sex offender therapist that he attached to his complaint

contradicts claims by the defendants and demonstrates that Tobey was

compliant with the terms of his probation. But that report is dated June 22,

2014, more than a year after Tobey was extradited to Florida, and it has little

bearing on whether he was compliant prior to his extradition. In fact, it

reveals that he failed three polygraph exams prior to his extradition, failed

an additional polygraph after the extradition, and was continuing to deny

the “use of child pornography.” The therapist ultimately recommended an

(continued...)

34 Nos. 16-3927 & 16-4037

calendar entry he had for meeting Chibucos on April 15, and

asserts that his criminal defense lawyer, Gregory Nikitas, also

had a calendar entry to meet with him that same day, ostensi-

bly to review the behavioral agreement prior to meeting with

Chibucos. Nikitas was “unavailable” and Tobey went to the

meeting with Chibucos where he was arrested, beginning his

odyssey to Florida. He continues to assert that he was never

brought before a judge at any time in this process and that

unspecified documents do not accurately reflect what hap-

pened to him. He also cites the order of the Florida court

(attached to his complaint) that eventually resulted in his

return to Illinois as evidence that he was wrongfully removed

to Florida.

That document, titled “Order Dismissing VOP Warrant,”

does very little to support Tobey’s version of events. It reveals

in its very title that there was a Florida warrant for Tobey’s

arrest, a fact that he continues to deny on appeal. The Order

notes, consistent with the defendants’ version of events, that

Tobey was on probation in both Illinois and Florida, that he

was taken into custody on April 22, 2013 for violating the terms

of his probation, that violating Illinois probation triggered a

probation violation warrant to be issued in Florida, and that

before the Illinois case could be heard, Tobey was “prema-

turely” transferred to Florida. The Order also observed that the

Florida court had ordered Tobey to be returned to Illinois in

May 2013 but that procedural issues complicated his return.

Because the acts forming the violation of probation occurred in

11

(...continued)

additional six months of sex offender services.

Nos. 16-3927 & 16-4037 35

Illinois, Florida elected to have the matter first resolved in

Illinois, after which the Florida state’s attorney planned to

revisit the case if necessary.

It appears in part that some of the confusion for Tobey and

his civil attorneys regarding the extradition process was caused

by the use in Illinois of a separate docket number for extradi-

tion proceedings. That is, when the lawyers checked the docket

for Tobey’s criminal case, they did not find any documents

related to his extradition. But the defendants brought the

extradition docket to their attention and still Tobey’s civil

lawyers did not change their position. The district court

nevertheless concluded that the public records of Tobey’s court

proceedings were not sufficient to show that Tobey or his

counsel lacked a good faith basis in pursuing the claims

asserted. The court noted that Tobey cited additional evidence

on which his attorneys relied in filing the suit. A review of

Tobey’s opposition to the motion for sanctions shows that

Tobey planned to present a variety of “proofs” that he was

arrested on April 15 and transported to Florida on April 21: a

series of contacts with his Illinois criminal defense attorney

Gregory Nikitas by Tobey’s family between April 15 and April

21; an arrangement by Tobey’s son to pick up his car on April

15; records of Tobey’s collect calls from the Lake County jail

from April 15 to April 21; and the absence of transcripts of

court proceedings at the purported extradition hearing on

April 23, among other things. Citing this promised (but not yet

supplied to the district court or this court) evidence, the district

court found that the defendants failed to demonstrate that

Tobey’s conduct or that of his attorneys rose to the level of a

Rule 11 violation.

36 Nos. 16-3927 & 16-4037

The defendants, with the full force of the certified public

record behind them, are understandably disappointed with the

district court’s decision. After all, Tobey’s factual claims

amount to a massive conspiracy against him, perpetrated by

his probation officer, polygraph examiner, states’ attorneys,

judges, docket clerks and court personnel in Illinois and

Florida (not to mention sheriff’s deputies and a prison trans-

port company, among others). What else could explain the

enormous paper trail that contradicts Tobey’s claims that he

was arrested on April 15 without cause and without process of

law and then kidnapped and transported to Florida? Granted,

the district court’s one-page order rejecting sanctions is thin,

but the court cited the correct standard for deciding the

question and provided a sufficient explanation to allow for

meaningful appellate review. See Independent Lift Truck Builders

Union v. NACCO Materials Handling Group, Inc., 202 F.3d 965,

969 (7th Cir. 2000). We uphold any exercise of the court’s

discretion that could be considered reasonable, even if we

might have resolved the question differently. Yeoman v. Pollard,

875 F.3d 832, 837–38 (7th Cir. 2017). It was not unreasonable at

that stage of the proceedings for the court to conclude that

there appeared to be evidence on both sides and that the claims

were therefore not brought in bad faith, and we affirm the

judgment.

On appeal, however, it is more difficult to understand the

continued pursuit of this case by Tobey and his lawyers.

Tobey’s lawyers are now aware that a vast paper trail, includ-

ing certified court records, contradicts their client’s claims.

They are also aware that the extradition proceedings occurred

under a different case number. That extradition record in-

Nos. 16-3927 & 16-4037 37

cludes an appearance signed by Nikitas on April 23, and

docket entries indicating that Tobey and his lawyer appeared

in the Lake County court on extradition proceedings on April

23 and April 26. Tobey’s civil lawyers have had plenty of time

to investigate whether the promised evidence supporting

Tobey’s story actually exists, whether there are records of

collect calls from the Lake County jail between April 15 and

April 21, whether Tobey’s criminal defense lawyer can back up

his story, and whether his family is willing to aver that they

communicated with counsel and retrieved Tobey’s car between

April 15 and April 21. We pressed Tobey’s attorneys at oral

argument for evidence that Nikitas was not in court with

Tobey in Illinois after he was taken into custody in Illinois.

They supplied, in a post-argument letter, an exchange of text

messages between Tobey and Nikitas on July 5, August 2, and

August 3, 2016, three years after the events. Tobey’s lawyer

confirmed that he had a calendar entry to meet with Tobey at

11 a.m. on May 15 and to meet with Chibucos at 1 p.m. that

same day. In response to a text regarding whether Nikitas

recalled being in court with Tobey before Judge Collins (the

judge who presided over the extradition proceeding) on April

23, 2013, Nikitas responded, “Don’t think so. That is not on the

clerk’s computer.” Nikitas appears to have made the same

mistake as Tobey’s counsel here, failing to check the separate

extradition docket. It might have been reasonable to rely on

those texts when Tobey’s lawyers in this civil case were

unaware of the existence of the extradition docket showing

copious evidence to the contrary. That reliance is no longer

warranted.

38 Nos. 16-3927 & 16-4037

It is time for Tobey and his lawyers to demonstrate that

there was a good-faith factual and legal basis for putting the

defendants and the courts to the trouble and expense of sorting

out Tobey’s legally complex and factually dubious claims on

appeal. We therefore issue a rule to show cause why Tobey

and his lawyers should not be sanctioned for filing a frivolous

appeal under Federal Rule of Appellate Procedure 38. Salata v.

Weyerhaeuser Co., 757 F.3d 695, 701 (7th Cir. 2014) (in order to

impose sanctions under Rule 38, we must determine both that

an appeal is frivolous and that sanctions are appropriate). In

response, Tobey’s lawyers should detail all steps they took to

investigate Tobey’s factual assertions, especially after the

obvious problems with his story had been brought to their

attention by the defendants, and especially before they filed

this appeal. They should also address why they believed that

absolute immunity did not shield Stanton in whole and

Chibucos in part.

AFFIRMED.