Alexenko v. Hoffman

PETER ALEXENKO, Plaintiff, v. MICHAEL HOFFMAN, and the CITY OF NAPERVILLE, Defendants.

No. 16 C 11283

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 13, 2017

Judge Sara L. Ellis

OPINION AND ORDER

Defendant Michael Hoffman, a Naperville police social worker, intervened in a dispute involving Plaintiff Peter Alexenko and the mother of Alexenko's child, allegedly facilitating the removal of the minor child from Alexenko's residence, instructing other Naperville police officers not to honor an order of protection Alexenko obtained, and attempting to affect the disposition of Alexenko's child custody case, among other things. Thereafter, Alexenko filed this suit against Hoffman and the City of Naperville (the "City"), asserting claims against Hoffman and the City for violations of his civil rights pursuant to 42 U.S.C. § 1983 and a state law claim for intentional infliction of emotional distress ("IIED"). Hoffman and the City have filed a motion to dismiss the first amended complaint. Because the Court finds that Alexenko has not sufficiently pleaded any of his claims, the Court grants Hoffman and the City's motion and dismisses the first amended complaint without prejudice.

BACKGROUND¹

Alexenko and Genevieve Hines lived together in Naperville, Illinois with their minor child, A.A. On October 10, 2015, Alexenko and Hines got into a dispute in A.A.'s presence, causing Alexenko to call the Naperville police. Hoffman, a police social worker, was among the Naperville police officers who responded to Alexenko's call. Over Alexenko's objection, Hines took A.A. from their residence. After having no further contact with A.A. or Hines, on October 19, Alexenko went to the Naperville police station to report that Hines took A.A. from their house on October 10 and that he had not heard from either since. The front desk officer told Alexenko that Hines was in contact with Hoffman, who reported that Hines and A.A. were "O.K." and that Alexenko needed to speak with Hoffman. Doc. 19 ¶ 8. Alexenko did not succeed in speaking with Hoffman.

On October 20, Alexenko obtained an emergency order of protection against Hines from the DuPage County Circuit Court, which provided that Hines was to stay away from him and return A.A. to his custody. Alexenko then returned to the Naperville police station and requested that the order of protection be given to Hoffman and that he be put in contact with Hoffman so he could determine A.A.'s location. The officers refused to accept the order of protection or provide Alexenko with Hoffman's contact information.

On October 26, Alexenko filed a child custody case in DuPage County Circuit Court. A guardian ad litem was appointed for A.A. on November 9. On November 15, the court entered an order returning A.A. to Alexenko's custody. But Hines, aided by Hoffman, refused to honor the court's order and did not return A.A. to Alexenko. Hoffman also began attending court datesin the child custody case, providing information to the court and attempting to affect the disposition of that case. The court ordered that Hines be allowed to return to the residence she had shared with Alexenko to retrieve her property. On December 14, Hines, accompanied by Hoffman, went to the residence, where Hoffman helped and allowed Hines to take property that belonged to Alexenko.

At some point, as a result of complaints to the Naperville police department by the guardian ad litem appointed in the child custody case, the City terminated Hoffman's employment.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

ANALYSIS

I. Section 1983 Claim against Hoffman (Count I)

Problematically, in his first amended complaint, Alexenko pleads a generic § 1983 claim against Hoffman without specifying the basis for his claim. Although Alexenko need not plead legal theories in his complaint, see Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743, he must still plead sufficient facts to put Hoffman on notice of the claim, Hooper v. Proctor Health Care Inc., 804 F.3d 846, 851 (7th Cir. 2015). In his response to the motion to dismiss, Alexenko argues that his allegations suffice to state substantive due process and class of one equal protection claims. The Court will only analyze these claims, as it is unable to determine any other alleged basis for Alexenko's § 1983 claim against Hoffman in his individual capacity.²

A. Substantive Due Process Violation

In his response, Alexenko contends that Hoffman interfered with Alexenko's fundamental right of child-rearing in refusing to allow him to contact A.A. and continuing to block his attempts to do so after he presented the Naperville police department with the order of protection. "[T]he scope of substantive due process is very limited," involving "the exercise of governmental power without reasonable justification." Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005). Alexenko does invoke a recognized fundamental right, the right of child-rearing and to familial relations. See Brokaw v. Mercer County, 235 F.3d 1000, 1018 (7th Cir. 2000) (collecting cases). Although that right is not absolute, "courts have recognized that a state has no interest in protecting children from their parents unless it has some definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse." Id. at 1019; see also Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003) (threatsto remove children from parents' custody without any evidence of child abuse violate parents' rights to familial relations). Here, Alexenko does not raise the typical interference with familiar relations claim, instead arguing that Hoffman allegedly interfered with his attempts to contact A.A. and enforce the order of protection he had obtained. But, to the extent the Court can make out from Alexenko's pleadings, the Due Process Clause does not provide him with any protections, substantive or procedural, for Hoffman's actions. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 768, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005) (concluding that individual "did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband," in both its procedural and substantive manifestations); Marks v. Indiana, No. 1:15-CV-118, 2015 WL 4421338, at *3 (N.D. Ind. July 17, 2015) ("[A]n attempted constitutional violation . . . is not actionable under Section 1983."). Therefore, the Court finds that Alexenko has not sufficiently alleged a substantive due process claim and dismisses the claim without prejudice.

B. Equal Protection Claim

Alexenko also argues that he has sufficiently alleged an equal protection class of one claim. To state a class of one equal protection claim, Alexenko must plead facts suggesting that a state actor discriminated against him with no rational basis. Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015). Although a common method of making such a showing is to identify a comparator who was treated differently, Alexenko need not "identify specific examples of similarly situated persons in [his] complaint[ ]." Id. (quoting Capra v. Cook County Bd. of Review, 733 F.3d 705, 717 (7th Cir. 2013)). But Alexenko must at least include allegations to establish that Hoffman "lacked a rational basis for singling [him] out for intentionally discriminatory treatment." Id. at 1121 ("It is not enough for a complaint to suggest an impropermotive, for [a] given action can have a rational basis and be a perfectly logical action for a government entity to take even if there are facts casting it as one taken out of animosity." (alteration in original) (citation omitted) (internal quotation marks omitted)).

Alexenko argues in his response that Hoffman targeted him, potentially because, as he mentions in that response, Hoffman and Hines had begun a romantic relationship after Hoffman responded to Alexenko's initial call to the police on October 10, 2015. Even considering this additional allegation, the Court does not find that the first amended complaint itself contains sufficient allegations to suggest that Hoffman singled out Alexenko for intentionally discriminatory treatment. Because the first amended complaint does not put Hoffman on sufficient notice of the basis of an equal protection class of one claim, the Court dismisses that claim without prejudice.³

II. Monell Claim against the City (Count II)

The City also seeks dismissal of Alexenko's § 1983 claim against it, arguing that Alexenko has not adequately alleged a Monell policy or practice claim. The City cannot be held liable on a theory of respondeat superior. Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015). Instead, liability may be based on (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express policy, is so permanent and well-settled as to constitute a custom...