Gallagher v. Dursun

ROBERT GALLAGHER, Plaintiff, v. REYHAN DURSUN, Defendant.

ROBERT GALLAGHER, Plaintiff, v. OFFICE OF THE COOK COUNTY PUBLIC DEFENDER, PATRICK QUINN, PETER FELICE, THOMAS DART,and REYHAN DURSUN, Defendants.

ROBERT GALLAGHER, Plaintiff, v. NANCY DURSUN and PEKIN INSURANCE COMPANY, Defendants.

13 C 7891

14 C 3801

14 C 3803

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 6, 2015

Judge Feinerman

MEMORANDUM OPINION AND ORDER

These three suits arise from Robert Gallagher's October 2013 arrest at a gas station in Lyons, Illinois, and subsequent criminal prosecution in state court. The complaints purport to state claims under 42 U.S.C. §§ 1983, 1985, and 1986 for violations of Gallagher's Fourth, Fifth,Sixth, Eighth, Ninth, and Fourteenth Amendment rights. Doc. 1 (13 C 7891); Doc. 12 (14 C 3801); Doc. 43 (14 C 3803).

The sole defendant in the first case, Reyhan Dursun, answered the complaint. Doc. 19 (13 C 7891). All but two of the defendants in the second and third cases—Reyhan Dursun (who manages the gas station), Nancy Dursun (who owns at the gas station), the Office of the Cook County Public Defender, Cook County Sheriff Thomas Dart, and Pekin Insurance Company filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Doc. 44 (14 C 3801); Doc. 45 (14 C 3801); Doc. 20 (14 C 3803), Doc. 25 (14 C 3803). The court gave Gallagher a generous amount of time to respond to the motions, and then on top of that granted him an extension. Docs. 49, 51 (14 C 3801); Docs. 40, 53 (14 C 3803). Despite this, Gallagher failed to respond by the January 2, 2015 deadline. For the following reasons, the motions to dismiss are granted. Gallagher's claims against the other two defendants in 14 C 3801, former Illinois Governor Pat Quinn and Cook County Judge Peter Felice, are dismissed under Rule 4(m).

Discussion

I. Motions to Dismiss

"If [a court] is given plausible reasons for dismissing a complaint, [the court is] not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants' reasoning." Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). It follows that a plaintiff's failure to respond to a Rule 12(b)(6) motion giving plausible reasons for dismissal provides adequate grounds for granting the motion. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011) ("As to the defendants' motion to dismiss the complaint, Alioto waived his right to contest the dismissal by failing to oppose the motions."); Lekas v. Briley, 405 F.3d 602, 614-15 (7th Cir. 2005) ("[w]hile Lekas alleged in his complaintthat his segregation was in retaliation for his filing of grievances, he did not present legal arguments or cite relevant authority to substantiate that claim in responding to defendants' motion to dismiss," and "[a]ccordingly, [his] retaliation claim has been waived"); Kirksey, 168 F.3d at 1041 ("In effect the plaintiff was defaulted for refusing to respond to the motion to dismiss. And rightly so.").

A. Case 14 C 3801

In seeking dismissal of the claims against him in 14 C 3801, Reyhan Dursun argues that those claims are duplicative of Gallagher's pending claims in 13 C 7891. Doc. 44 (14 C 3801) at 7-9. He is correct. Compare Doc. 1 (13 C 7891) at 3-8 with Doc. 12 (14 C 3801) at 25-31. "As a general rule, a federal suit may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court." Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (internal quotation marks omitted); see also Trippe Mfg. Co. v. Am. Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995) ("Federal district courts have the inherent power to administer their dockets so as to conserve scarce judicial resources."). Gallagher cannot recover twice on the same claims, and his claims against Reyhan Dursun in 13 C 7891 are better developed than the claims in 14 C 3801. Accordingly, the claims in 14 C 3801 are dismissed. See Cent. States, Se. and Sw. Areas Pension Fund v. Paramount Liquor Co., 203 F.3d 442, 445 (7th Cir. 2000) ("Outright dismissal [rather than a stay] is most likely to be appropriate when, as in Serlin, ... the same party has filed all of the suits."). The dismissal is without prejudice to Gallagher pursuing his claims against Reyhan Dursun in 13 C 7891. See Wallis v. Fifth Third Bank, 443 F. App'x 202, 205 (7th Cir. 2011) (while "dismissal is appropriate where, as here, the same party has filed both suits, and the claims and available relief do not significantly differ between the two actions," the dismissalshould be "without prejudice"). This disposition renders it unnecessary to reach Reyhan Dursun's other arguments for dismissal.

The Office of the Cook County Public Defender plausibly argues that it does not have an independent legal existence under Illinois law and therefore is not amendable to suit. Doc. 45 (14 C 3801) at 4; see Clay v. Friedman, 541 F. Supp. 500, 503 (N.D. Ill. 1982) ("'Office of Public Defender' is not an entity suable under [Federal Rule of Civil Procedure] 17(b)."); Burnette v. Stroger, 905 N.E.2d 939, 947-48 (Ill. App. 2009) ("[W]e find that the office of the public defender does not have a separate capacity to sue, apart from the public defender in his official capacity."). To the extent that Gallagher asserts that the Office is liable under § 1983 for actions taken by the assistant public defender appointed to represent Gallagher in the state criminal case, the Office plausibly argues that those claims should be dismissed because a public defender does not act under color of state law when performing the traditional functions of counsel. Doc. 45 (14 C 3801) at 5-6; see Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). In any event, the Office cannot be liable for the allegedly deficient representation by an individual public defender under a theory of respondeat superior, and Gallagher's complaint does not adequately plead a Monellclaim. Doc. 45 (14 C 3801) at 6; see Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978). The Office also plausibly contends that to the extent Gallagher is attempting to make a state law claim for negligent representation or legal malpractice, that claim is defeated by the Illinois Public and Appellate Defender Immunity Act because he does not adequately allege willful or wanton conduct by the assistant public defender. Doc. 45 (14 C 3801) at 6-7; see Burnette, 905 N.E.2d at 946 ("Immunity is provided by the Public and Appellate Defender Immunity Act for professional malpractice, other than willful and wanton misconduct."); 745 ILCS 19/5 (providing public defenders with immunity against "anydamages in tort, contract, or otherwise, in which the plaintiff seeks damages by reason of legal or professional malpractice, except for willful and wanton misconduct"); see also 745 ILCS 10/1-210 (defining "willful and wanton" conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property").

Sheriff Dart also makes plausible arguments for dismissal. Gallagher purports to state claims against Dart in his official and his individual capacities for violations of Gallagher's Eighth and Ninth Amendment rights and for intentional infliction of emotional distress. Doc. 12 (14 C 3801) at 2, 20. Dart plausibly argues that Gallagher has not sufficiently alleged a Monell claim to impose official capacity liability. Doc. 45 (14 C 3801) at 7-8; see Sow v. Fortville Police Dep't, 636 F.3d 293, 300 (7th Cir. 2011) ("[A]n official capacity suit is another way of pleading an action against the entity of which the officer is an agent."); Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2009) ("A local governing body may be liable for monetary damages under § 1983 if the unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated by its officers; (2) a governmental practice or custom that, although not officially authorized, is widespread and well settled, or (3) an official with final policy-making authority."); Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981) ("[T]he mere allegation of a single act of unconstitutional conduct by a municipal employee will not support the inference that such conduct was pursuant to official policies. On the other hand, where the plaintiff alleges a pattern or a series of incidents of unconstitutional conduct, then the courts have found an allegation of policy sufficient to withstand a dismissal motion."). For purposes of individual liability, Gallagher does not allege personal involvement sufficient to subject Dart to such liability. Dart also plausibly argues that he has immunity from Gallagher'semotional distress claim under the Illinois Tort Immunity Act because Gallagher has neither identified any individual Sheriff employees as defendants nor pleaded facts indicating that Dart is liable under a respondeat superior theory. Doc. 45 (14 C 3801) at 8-9; see 745 ILCS 10/2-204 ("[A] public employee, as such and acting within the scope of his employment, is not liable for an injury caused by the act or omission of another person."); 745 ILCS 10/2-109 ("A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable."); Thiele v. Kennedy, 309 N.E.2d 394, 395 (Ill. App. 1974) ("If the employee is immune, so is his employer.").

B. Case 14 C 3803

In support of dismissal in 14 C 3803, Pekin Insurance plausibly argues that Gallagher's claims against it constitute an impermissible direct action against an insurer. Doc. 21 (14 C 3803) at 2-3; see Reishus v. Maryland Cas. Co., 411 F.2d 776, 778 (7th Cir. 1969) (recognizing that Illinois law does not permit direct actions against...