Torrence v. U.S. Bankr. Court for the N. Dist. of Ill., Case No. 17 C 3120

Decision Date21 August 2017
Docket NumberCase No. 17 C 3120
CourtU.S. District Court — Northern District of Illinois

AMY J. ST. EVE, District Court Judge:

On June 8, 2017, pro se Plaintiff Wanda Torrence filed the present Amended Complaint. She brings claims against the United States Bankruptcy Court, Comcast Corporation, Inc. ("Comcast"), the law firm of Sanchez, Daniels & Hoffman, the law firm of Ballard Spahr LLP, and individual attorneys who were involved in her Chapter 7 bankruptcy petition (14-34470) that was discharged on January 6, 2015 and her adversarial proceedings (15-ap-76, 15-ap-291) closed on June 10, 2015 and July 27, 2015, respectively.1 Plaintiff appealed her adversary proceedings and United States District Judge Robert Gettlemen affirmed the Bankruptcy Court's decision on June 9, 2016. On October 28, 2016, the United States Court of Appeals for the Seventh Circuit affirmed. On February 21, 2017, the United States Supreme Court denied pro se Plaintiff's petition for a writ of certiorari.

Pro se Plaintiff then brought this lawsuit alleging violations of her constitutional rights, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., 42 U.S.C. § 1981, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and Architectural Barriers Act of 1968, 42 U.S.C. §§ 4151-56, along with state law claims sounding in tort. See 28 U.S.C. §§ 1331, 1367(a). Before the Court are Defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). For the following reasons, the Court grants Defendants' motions to dismiss in their entirety with prejudice. Because the Court grants Defendants' motions to dismiss in their entirety, the Court need not address Defendants' Rule 12(b)(5) motion based on insufficient process. Civil case terminated.


"A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); see also Hill v. Serv. Emp. Int'l Union, 850 F.3d 861, 863 (7th Cir. 2017). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Pursuant to the federal pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Put differently, 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 Twombly, 550 U.S. at 570). When determining the sufficiency of a complaint under the plausibility standard, courts must "accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs' favor." Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). Ordinarily, district courts will not dismiss acomplaint based on a statute of limitations affirmative defense unless the action is clearly time-barred. See Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017); Cannon v. Newport, 850 F.3d 303, 306 (7th Cir. 2017).


Plaintiff filed a pro se petition for relief under Chapter 7 of the Bankruptcy Code on September 23, 2014. On November 10, 2014, the Chapter 7 Trustee filed a Report of No Distribution explaining that there were no assets to administer in Plaintiff's case. On January 6, 2015, the Bankruptcy Court entered an order granting a discharge. The Bankruptcy Court closed the bankruptcy case on January 9, 2015, and discharged the Chapter 7 Trustee.

Although Plaintiff's bankruptcy case was no longer pending, pro se Plaintiff filed her first adversary complaint against Comcast (15-ap-76) on February 3, 2015, alleging violations of the automatic stay, the Fair Debt Collection Practices Act ("FDCPA"), and asserting a claim for injunctive relief. On February 25, 2015, Plaintiff filed an amended complaint alleging a violation of the automatic stay, a violation of the FDCPA, an intentional infliction of emotional distress ("IIED") claim, and a violation of the Federal Fair Credit Billing Act ("FCBA"). After conducting an in-court hearing, the Bankruptcy Court gave the parties two weeks to settle the matter. Because no settlement was reached, on April 24, 2015, the bankruptcy court entered a final judgment awarding Plaintiff $36.28 in compensatory damages and $181.40 in punitive damages. The Bankruptcy Court then set a hearing date of June 1, 2015 for proof of payment. Thereafter, Comcast submitted proof that it had credited Plaintiff's account in the amount of $217.68 in satisfaction of the judgment. The Bankruptcy Court dismissed without prejudice Plaintiff's remaining claims against Comcast based on insufficient service and lack of personaljurisdiction. Neither party appealed the final order, and the Bankruptcy Court entered a satisfaction of judgment.

On May 1, 2015, Plaintiff filed her second adversary complaint (15-ap-291) against Comcast, which was based on the same facts raised in her first adversary proceeding. She alleged: (1) a violation of the FDCPA; (2) a violation of the discharge injunction; (3) a violation of the FCBA; (4) an IIED claim; (5) a breach of contract claim; (6) a fraud claim; and (7) a violation of the Fair Credit Reporting Act ("FCRA"). On June 26, 2015, the Bankruptcy Court issued an opinion dismissing the second count for failure to state a claim and dismissing the remaining counts for lack of subject matter jurisdiction. Pro se Plaintiff then filed a motion for reconsideration and the Bankruptcy Court held a hearing on July 23, 2015. After Plaintiff confirmed that she was not asserting any new factual events that happened before the petition date, the Bankruptcy Court dismissed the allegations for lack of jurisdiction over Plaintiff's post-petition charges. Plaintiff appealed.

On June 9, 2016, Judge Gettlemen affirmed the Bankruptcy Court's decision, in which he explained:

Plaintiff has difficulty hearing. Her briefs in the instant appeal repeatedly allege that the bankruptcy judge acted inappropriately, mocked her disability, and took argument knowing that she could not hear what was being said. This court has reviewed the transcripts of all of the hearings in both adversary actions and they do not support plaintiff's allegations. Although there were some problems with the court's sound system, the record reflects that the judge made every effort to accommodate plaintiff to ensure that she could and did participate. The only time the judge admonished plaintiff was when she continually interrupted the court's oral ruling. At that time the judge directed plaintiff to sit at the counsel table and listen. The judge issued a similar admonishment to defendant's counsel, but because counsel complied he was allowed to remain at the podium.

(15 C 6651, R. 26, 6/9/16, Mem Op. Order, at 5 n.2)

On October 28, 2016, the United States Court of Appeals for the Seventh Circuit affirmed the district court judgment. In discussing her failure to accommodate claim, the appellate court concluded that Plaintiff's "allegations are baseless - our thorough review of the transcripts reveals that the judge treated her impartially and that she was able to hear well enough to participate in the proceedings meaningfully." Torrence v. Comcast Corp., 663 Fed. Appx. 475, 478 (7th Cir. 2016).


Construing her pro se allegations liberally, see Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017), Plaintiff alleges that she suffers from a hearing loss and that Defendants discriminated against her based on this disability. (R. 12, Am. Compl. ¶ 1.) She further states that Defendants failed to follow the law in an effort to defraud her out of her right to obtain justice and to be heard in the context of her bankruptcy proceedings. (Id.) In addition, Plaintiff alleges that Defendants discriminated against her based on her pro se status. (Id. ¶ 19.) She asserts that Defendants did not accommodate her hearing loss during the two bankruptcy hearings on March 20, 2015 and June 9, 2015 and at the trial on April 10, 2015. (Id. ¶ 21.) In sum, she alleges that "[a]s a hearing-impaired party to a judicial proceeding, Plaintiff had rights, protections and privileges guaranteed to her under the U.S. Constitution and state and federal law when she walked inside Judge Schmetterer's courtroom." (Id. ¶ 16.)

In her Amended Complaint, pro se Plaintiff brings the following claims: (1) a violation of her substantive due process rights under the Fourteenth Amendment (Count I); (2) a violation of her procedural due process rights under the Fourteenth Amendment (Count II); (3) an equal protection claim under the Fourteenth Amendment (Count III); (4) a violation of the Rehabilitation Act (Count IV); (5) a violation of the ADA (Count V); (6) a fraud upon the courtclaim (Count VI); (7) a constitutional conspiracy claim (Count VII); (8) an intentional infliction of emotional distress claim (Count VIII); (9) a claim against Judge Schmetterer (Count IX); (10) a violation of the ABA (Count X); (11) a gross negligence claim (Count XI); (12) a negligent infliction of emotional distress claim (Count (XII); and (13) a deliberate indifference claim (Count XIII).

I. ADA/Rehabilitation Act Claims - Counts IV and V
A. United States Bankruptcy Court

Liberally construing pro se Plaintiff's allegations in Counts IV and V of her Amended Complaint, she alleges that the United States Bankruptcy Court failed to accommodate her disability, namely, her hearing loss, in violation of the ADA and Rehabilitation Act during her...

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