Tobey v. Chibucos

Decision Date15 May 2018
Docket NumberNos. 16-3927 & 16-4037,s. 16-3927 & 16-4037
Citation890 F.3d 634
Parties Edward TOBEY, Plaintiff-Appellant/Cross-Appellee, v. Brenda CHIBUCOS and Mary Stanton, Defendants-Appellees/Cross-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

John Thomas Moran, Jr., Attorney, Moran Law Group, Chicago, IL, Raymond J. Smith, Esq., Attorney, Law Office of Raymond J. Smith, Chicago, IL, for Plaintiff-Appellant/Cross-Appellee.

Joy C. Fitzgerald, Attorney, Karen Denise Fox, Attorney, Office of the State's Attorney of Lake County, Waukegan, IL, for Defendants-Appellees/Cross-Appellants.

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 penchant for resisting the conditions of probation placed upon him 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 defendants 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.


"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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937. 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.

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 Inspectors 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 downloaded 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 possession of child pornography, this time for images discovered 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 "maintenance" polygraph, demonstrating that he was capable of passing a polygraph despite his claims of anxiety. The therapist 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 explained his failures by claiming "a lack of clarity in his memory" 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 regulations 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 document, and we credit the document over Tobey’s characterization 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 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 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...

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