Cusick v. Gualandri, Case No. 20-cv-06017

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: MARY M. ROWLAND, United States District Judge
• Citation: 573 F.Supp.3d 1256
• Parties: Kenneth CUSICK, Plaintiff, v. Dave GUALANDRI, et al., Defendants.
• Docket Number: Case No. 20-cv-06017
• Decision Date: 22 November 2021

573 F.Supp.3d 1256

Kenneth CUSICK, Plaintiff,
v.
Dave GUALANDRI, et al., Defendants.

Case No. 20-cv-06017

United States District Court, N.D. Illinois, Eastern Division.

Signed November 22, 2021

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Heather Lewis Donnell, Jonathan I. Loevy, Makeba Rutahindurwa, Tara Elizabeth Thompson, Loevy & Loevy, Chicago, IL, for Plaintiff.

Alison M. Harrington, Best, Vanderlaan & Harrington, Naperville, IL, James Gus Sotos, Jeffrey Robert Kivetz, John J. Timbo, Carson Welsh Canonie, The Sotos Law Firm, P.C., Scott Bryan Dolezal, Best, Vanderlaan & Harrington, Chicago, IL, for Defendants Dave Gualandri, Scott Cruz, Brian Zielmann, The City of Ottawa.

Andrew J. Roth, Heyl, Royster, Voelker & Allen, Laura Lee Buecker, MoloLamken LLP, David T. Tichy, Kelly C. Bauer, Amanda Leigh Kozar, Office of the Illinois Attorney General, Chicago, IL, John Paul Heil, Jr., Heyl, Royster, Voelker & Allen, Peoria, IL, for Defendant Karen Donnelly.

Dominick L. Lanzito, Kevin Mark Casey, Michael J. A. Pasquinelli, Peterson, Johnson & Murray Chicago LLC, Chicago, IL, for Defendants Jody Bernard, The County of LaSalle.

Robert L. Larsen, Anthony M. Sam, Cunningham, Meyer & Vedrine, P.C., Warrenville, IL, for Defendant Scott Denton.

Michael Robert Luchsinger, Faredin Ameti, Michael Thomas Sprengnether, Doherty & Progar, LLC, Chicago, IL, for Defendant Rod Englert.

Edward B. Ruff, III, Pretzel & Stouffer, Chtd., Richard Patrick Kenyon, Attorney at Law, Chicago, IL, for Defendant Julius Ballanco.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, United States District Judge

Plaintiff Kenneth Cusick brings state and federal claims against several defendants

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associated with or employed by the City of Ottawa and the County of LaSalle. He alleges that the defendants engaged in a conspiracy to frame him for the murder of his wife. The defendants have each moved to dismiss the Complaint. For the reasons stated herein, the motions to dismiss [41, 42, 44, 50, 55, 61] are granted in part and denied in part.

I. Background

The following factual allegations are taken from Cusick's Complaint (Dkt. 1 ("Compl.")) and are accepted as true for the purposes of the motions to dismiss. See W. Bend Mut. Ins. Co. v. Schumacher , 844 F.3d 670, 675 (7th Cir. 2016). This summary focuses on the allegations most relevant to the present motions.

Cusick is a resident of LaSalle County. Compl., ¶ 11. For the relevant time, Defendants Dave Gualandri, Scott Cruz, and Brian Zielmann were all law enforcement employees of the Ottawa Police Department or the County of LaSalle. Id. at ¶ 12.¹ Defendant Karen Donnelly is a lawyer who was elected LaSalle County State's Attorney on November 8, 2016. Id. at ¶ 13. Defendant Jody Bernard was the Coroner for LaSalle County. Id. at ¶ 14. Defendant Scott Denton is a forensic pathologist based in Bloomington, Illinois, who worked on the investigation of Cusick. Id. at ¶ 15. Defendant Rod Englert is a retired police officer living on Oregon. Id. at ¶ 16. He operates a consulting business and also worked on the investigation. Id. Defendant Julius Ballanco, a mechanical engineer in Munster, Indiana, was similarly involved. Id. at ¶ 17. Finally, Defendants City of Ottawa and LaSalle County are both located in Illinois. Id. at ¶¶ 19-20.

On January 17, 2006, Cusick found his wife Tracy unresponsive in their home. Id. at ¶ 22. She was taken to the hospital, where she was pronounced dead. Id. The initial autopsy concluded that she had drowned in the bathtub due to underlying health issues. Id. at ¶ 24. An initial investigation by Ottawa police uncovered no evidence suggesting that Tracy was murdered or that Cusick was involved in her death. Id. at ¶¶ 25-26.

In December of 2007, Gualandri became Sergeant of Investigations of the Ottawa Police Department. Id. at ¶ 28. He used the authority of the new position to reopen the investigation into Tracy's death. Id. This new investigation did not uncover any new information suggesting that Cusick was responsible for his wife's death. Id. Accordingly, Brian Towne, the LaSalle County State's Attorney, refused to pursue charges against Cusick. Id. at ¶ 30.

Gualandri, however, did not accept this conclusion and, instead, conspired with the other defendants to frame Cusick for Tracy's murder. Id. at ¶ 29. To that end, the defendants fabricated evidence, presented false testimony, and withheld exculpatory evidence. Id. Donnelly, who was a part of the conspiracy, was also campaigning to unseat Towne as State's Attorney. Id. at ¶ 31. She used Tracy's death as a campaign issue, promising that she would pursue charges against Cusick. Id. at ¶ 32.

After Donnelly was elected, her office presented the case to the grand jury. Id. at ¶ 34. The jury, relying in part on false testimony offered by the defendants, returned an indictment against Cusick. Id. at ¶¶ 29, 34. He was arrested, charged, and briefly held in custody until he posted bond on March 3, 2017. Id. at ¶ 35; Dkt. 61-2. At trial, the prosecution relied on the false reports prepared by the defendants. Id. at ¶ 36. Nevertheless, Cusick was acquitted

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by a jury on December 13, 2019. Id. at ¶ 38. Following his acquittal, Cusick filed the present suit on October 8, 2020.

II. Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). "To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual information to state a claim to relief that is plausible on its face and raise a right to relief above the speculative level." Haywood v. Massage Envy Franchising, LLC , 887 F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ. P. 8(a)(2) (requiring a complaint to contain a "short and plain statement of the claim showing that the pleader is entitled to relief."). A court deciding a Rule 12(b)(6) motion accepts plaintiff's well-pleaded factual allegations as true and draws all permissible inferences in plaintiff's favor. Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead "detailed factual allegations", but "still must provide more than mere labels and conclusions or a formulaic recitation of the elements of a cause of action for her complaint to be considered adequate under Federal Rule of Civil Procedure 8." Bell v. City of Chi. , 835 F.3d 736, 738 (7th Cir. 2016) (citation and internal quotation marks omitted).

Dismissal for failure to state a claim is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 558, 127 S. Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). Deciding the plausibility of the claim is " ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " McCauley v. City of Chi. , 671 F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) ).

III. Analysis

Cusick brings five federal claims under 42 U.S.C. § 1983. He asserts that the defendants’ creation and use of false evidence violated his Fourteenth Amendment due process right to a fair trial; that he was unlawfully detained in violation of the Fourth and Fourteenth Amendments; that the defendants conspired to violate his constitutional rights; that they failed to intervene to prevent the violations; and that the violations were the result of policies and practices of Ottawa and LaSalle County. Cusick also brings claims under Illinois law for malicious prosecution, defamation and intentional infliction of emotional distress (IIED). Defendants raise a number of arguments, including that they are entitled to immunity, that Cusick's claims are time barred, and that the Complaint lacks sufficient detail.

A. Group Pleading, Specificity of Allegations, and Acting Under Color of State Law

The Court first addresses Defendants’ argument about Cusick's "group pleading", the sufficiency of his allegations and that they did not act "under color of state law". Defendants argue that the complaint does not provide specific enough allegations about each defendant. "[G]roup pleading does not violate Fed. R. Civ. P. 8 so long as the complaint provides sufficient detail to put the defendants on notice of the claims." Lattimore v. Vill. of Streamwood , 2018 WL 2183991, at *4 (N.D. Ill. May 11, 2018) (cleaned up); see also Hill v. Cook Cty. , 463 F. Supp. 3d 820, 836 (N.D. Ill. 2020) ("an allegation directed at multiple defendants can be adequate to plead

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personal involvement.") (cleaned up). The Court finds that Cusick adequately put Defendants on notice of the claims against them.

For example Ballanco faults Cusick for failing to identify "what if any statement or statements from Mr. Ballanco's report or testimony were false." Dkt. 55 at 13. However Cusick alleged that the "fabricated...