CapellutiCase:

v. City 1:15-cv-09180
of Waukegan, Slip Document
Copy (2013)

#: 19-2 Filed: 02/09/16 Page 1 of 4 PageID #:123

2013 WL 3287138

2013 WL 3287138
Only the Westlaw citation is currently available.
United States District Court,
N.D. Illinois,
Eastern Division.
Domenic CAPELLUTI, Plaintiff,
v.
CITY OF WAUKEGAN and
Amy Lynn Strege, Defendants.
No. 12 C 8197.
|
June 27, 2013.
Attorneys and Law Firms
Joel Abbott D'Alba, Heidi Brooke Parker, Asher, Gittler,
Greenfield, Cohen & D'Alba, Chicago, IL, for Plaintiff.
Thomas Gregory Draths, Clare J. Quish, Schuyler, Roche
& Crisham, P.C., Chicago, IL, Starr M. Rayford, Teven M.
Puiszis, Matthew R. Henderson, Nabil G. Foster, Hinshaw &
Culbertson LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES B. ZAGEL, District Judge.
*1 Domenic Cappelutti (Plaintiff), a police officer with
the City of Waukegan, alleges a violation of substantive
due process under Section 1983 (42 U.S.C. 1983) (Count
I) and a statelaw tort claim for intrusion upon seclusion
(Count II) against the City of Waukegan (the City) and its
Assistant Corporation Counsel, Amy Lynn Strege (Strege)
(collectively, Defendants), due to Defendants' alleged
disclosure of some of Plaintiff's personal information in
response to a Freedom of Information Act (FOIA) request.

BACKGROUND
Plaintiff, a detective with the Lake County Major Crimes
Task Force, has been employed as a Waukegan police officer
for approximately 17 years. Strege was authorized by the City
to handle responses to FOIA requests. Plaintiff worked as a
plain-clothes detective in the investigations unit and the gang
unit for the majority of his career, however he is currently a
patrol officer appointed to the high crimes area.

In 2005, Plaintiff arrested Abdul Love for possession of a

controlled substance (cocaine) with intent to deliver. While in
custody, Love hired someone to murder Plaintiff for $45,000
so that Plaintiff could not testify against Love in the drug case.
Love's plot was averted, and Love was ultimately charged
with solicitation of murder for hire and sentenced to prison
terms of 25 years for the solicitation conviction and 15 years
for the unlawful possession conviction. Since then, Plaintiff
has taken precautions to protect himself and his family's
anonymity, including selling his house, changing his route
of travel to and from work, using a post office box for mail,
selling his cars, and installing a dark tint on the windows of
his car.
On May 6, 2011, Defendants received a FOIA request from
newspaper reporter Dan Hinkle of the Chicago Tribune
relating to personal information of the Plaintiff. Strege
responded on or about May 12, 2011 pursuant to the Illinois
FOIA Act, 5 ILCS 140/1, et seq. In Count I, Plaintiff
alleges Defendants, by their affirmative act of responding to
the FOIA request, created or increased a danger faced by
Plaintiff. By reason of Defendant's actions, Plaintiff states that
he has been and will continue to be deprived of rights secured
by the U.S. Constitution in violation of 42 U.S.C. 1983.
Plaintiff alleges that Defendant Strege intentionally,
recklessly, or with deliberate indifference and without regard
for the safety of Plaintiff and his family, disseminated to
Hinkle and the Chicago Tribune highly personal and private
information, including unique identifiers and medical records
within the meaning of FOIA. This information is under the
control and custody of the Waukegan Police Department
and included the names and addresses of Plaintiff's medical
providers, his health insurance identification number, and
employee identification number. Plaintiff asserts that none of
the information released by Defendant Strege was redacted
to exclude the personal, private information about Plaintiff, a
claim disputed by the Defendants. Plaintiff alleges the private
information released to the Tribune created a serious risk
to the personal safety of Plaintiff and his family members,
and that such information was exempt from disclosure under
FOIA. Plaintiff further alleges that since the Tribune had
substantial capacity to disseminate his personal information
to a wide and diverse audience including Abdul Love, his
associates, and other gang members, Defendants' malicious
and or reckless dissemination of that information to the
Tribune put him and his family at great risk of bodily harm.
The City attached to its Motion to Dismiss a letter from Senior

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v. City 1:15-cv-09180
of Waukegan, Slip Document
Copy (2013)

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Counsel for the Tribune returning the documents in question

to counsel for the City.
*2 In his claim for intrusion upon seclusion, Plaintiff asserts
that Strege was not authorized to intrude or pry into Plaintiff's
medical records for the purposes of responding to the FOIA
request because they were exempt from disclosure, and Mr.
Hinkle made no requests for the medical records in any event.
Plaintiff claims that Defendants' intrusion into his medical
records caused anguish and suffering, and that he lives in fear
that Defendants may in the future disclose additional private
information.
In each count, Plaintiff seeks to enjoin Defendants from
disseminating personal information, to require Defendants
to maintain in confidence Plaintiff's private information,
damages in excess of $100,000, and costs and attorney's
fees. Plaintiff also requests trial by jury. Defendants move
to dismiss both counts pursuant to Federal Rule of Civil
Procedure 12(b)(6).

ANALYSIS
Legal Standard for Rule 12(b)(6) Motion to Dismiss
A complaint will be dismissed under Rule 12(b)(6) if, taking
all facts alleged by the plaintiff to be true, and construing all
inferences in plaintiff's favor, the plaintiff has failed to state
a claim upon which relief can be granted. Pleva v. Norquist,
195 F.3d 905, 911 (7th Cir.1999).While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929, (2007).
Factual allegations must be enough to raise a right to relief
above the speculative level, that is, the pleading must contain
something more than a statement of facts that merely creates
a suspicion of a legally cognizable right of action. Id.

Count I42 U.S.C. 1983 against the City of Waukegan

A motion for dismissal of a 1983 suit under Rule 12(b)
(6) is a delicate matter that district courts should approach
carefully.Bourke v. Village of Tinley Park, No. 04 C 1153,
2004 WL 1490270, *1 (N.D.Ill. Jul 06, 2004), quoting Jacobs
v. City of Chicago, 215 F.3d 758, 765 (7th Cir.2000). It is
well settled that a municipality is only liable under 42 U.S.C.

1983 if it causes a constitutional deprivation through an

official policy or custom. Lee v. O'Malley, 533 F. Supp 2d
548, 553 (D.Md.2007) (quoting Monell v. Dep't of Social
Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978)).
The City argues that Plaintiff fails to allege an official policy
or custom giving rise to a 1983 violation. Taking all that
Plaintiff has alleged to be true, I find that Plaintiff does not
allege an official policy or custom of the City of Waukegan
relating to the release of private information. Plaintiff cites to
only one instance (his own) where information has allegedly
been released in violation of 1983. At best, Plaintiff
then speculates that it can be inferred that Defendants have
also unconstitutionally responded to similar FOIA requests
regarding other employees. This does not allege a policy or
custom sufficient to withstand Defendants' 12(b) (6) attack
on the Complaint. The facts certainly support an inference
that the City responds to FOIA requests regarding other
employees, but there is little to suggest that the City has a
custom or policy of doing so in a manner inconsistent with
the Constitution.
*3 Aside from the failure to sufficiently allege a custom or
policy, it is not clear that the release of the information at
issue was violative of Plaintiff's constitutional rights. In his
Response to Defendants' motion, Plaintiff correctly notes that
he bears the burden of showing that the constitutional right
violated was clearly established at the time of the challenged
conduct. He has not adequately done so.
Neither the Seventh Circuit, nor the Supreme Court has
held that the release of the type of information at issue is
constitutionally protected under a right to privacy. Plaintiff
has not pointed to a case holding to the contrary. What
Plaintiff does appear to argue is that a perceived violation of
FOIA's privacy safeguards is tantamount to a constitutional
violation of his privacy rights. This is incorrect. There is
nothing in FOIA or in the cases interpreting it to suggest that
a violation of privacy within the meaning of FOIA amounts to
a constitutional violation. Plaintiff mistakenly conflates these
two concepts.
Plaintiff also alleges a violation of his due process rights
under the state-created danger exception. To establish a
substantive due process claim under a state-created danger
theory, Plaintiff must demonstrate that: (1) the district, by its
affirmative acts, created or increased a danger that Plaintiff
faced; (2) the district's failure to protect him from danger was

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of Waukegan, Slip Document
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the proximate cause of his injuries; and (3) the district's failure
to protect him shocks the conscience. Jackson v. Indian
Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir.2011).
Plaintiff has not adequately pled conscience-shocking
behavior on the part of Defendants. Only conduct falling
toward the more culpable end of the spectrum shall be found
to shock the conscience.King ex rel. King v. East St. Louis
School District 189, 496 F.3d 812, 819 (7th Cir.2007) (citing
County of Sacramento v. Lewis, 523 U.S. 833, 849, 118
S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Plaintiff asserts that
Defendants knew or should have known that releasing the
FOIA information could put him in danger. This, of course,
would satisfy only a negligence standard. Although Plaintiff
later asserts that Defendants acted recklessly, the assertion
is merely conclusory, and it is not supported with facts.
Defendants did redact considerable portions of Plaintiff's
records. Further, even if one were to conclude this redaction
was insufficient, I cannot agree that Plaintiff has sufficiently
alleged culpability that rises above negligence. See King ex
rel. King 496 F.3d at 819. (in all cases, the [conduct in
question] must be more culpable than mere negligence, which
is categorically beneath the threshold of constitutional due
process.)
Accordingly, Defendant City of Waukegan's Motion to
Dismiss Count I is granted.

Count I42 U.S.C. 1983 against Strege

In moving to dismiss Count I brought against her by Plaintiff,
Strege raises the shield of qualified immunity. Government
officials may raise qualified immunity as an affirmative
defense against 1983 actions. Aboufariss v. City of DeKalb,
305 Ill.App.3d 1054, 1065, 239 Ill.Dec. 273, 713 N.E.2d 804
(1999). quoting Gomez v. Toledo, 446 U.S. 635, 640, 100
S.Ct. 1920, 64 L.Ed.2d 572, (1980); Forman v. Richmond
Police Department, 104 F.3d 950, 957, (7th Cir.1997).
Generally, government officials who perform discretionary
functions are protected against civil liability unless their
conduct * * * violate[s] clearly established statutory or
constitutional rights of which a reasonable person would have
known.Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). A two-part test is triggered
when qualified immunity is invoked. The first is whether a
Plaintiff has stated a constitutional violation, and the second
is whether the constitutional right was clearly established at
the time of the alleged violation.

*4 Plaintiff alleges two constitutional violations. The first

is a constitutional violation of privacy. As discussed above,
I do not find a constitutional violation of privacy at issue
here. The second is a due process violation by virtue of the
state-created danger doctrine. Again, however, as discussed
above, I do not find that the elements for the state-created
danger exception are satisfied here. Defendant Strege is
entitled to qualified immunity.
Accordingly, Defendant Strege's Motion to Dismiss Count I
is granted.

Count IIIntrusion Upon Seclusion

Insofar as Plaintiff seeks monetary damages for his claim for
intrusion upon seclusion, his claim fails because it is timebarred. In his Response to Defendants' Motion to Dismiss,
Plaintiff implicitly concedes this point. The claim is barred by
the one-year statute of limitations in the Tort Immunity Act.
(745 ILCS 10/1101).
Although Plaintiff's intrusion upon seclusion claim is not
time-barred to the extent he seeks injunctive relief, I find
that, on these facts, the claim may be dismissed as moot.
To the extent that Plaintiff seeks injunctive relief relating
to future dissemination of the information in question, the
matter has already been resolved. The Tribune has returned
the documents to the City, and there is nothing to suggest
that the City will disseminate the information publically in
the future. The First Amended Complaint does not allege any
ongoing injury, and the plea for injunctive relief, such as it is,
is wholly undeveloped.
Accordingly, Defendants' Motion to Dismiss Count II of
Plaintiff's Complaint is granted.

CONCLUSION
For the foregoing reasons, Defendants' Motions to Dismiss
are granted.

All Citations
Slip Copy, 2013 WL 3287138

2016 Thomson Reuters. No claim to original U.S. Government Works.

CapellutiCase:
v. City 1:15-cv-09180
of Waukegan, Slip Document
Copy (2013)

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2013 WL 3287138

End of Document

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.