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Case: 3:16-cv-50156 Document #: 18 Filed: 07/08/16 Page 1 of 8 PageID #:74




Case No.: 16 CV 50156

Hon. Iain Johnston


Defendants City of DeKalb, Chief Lowery, Officer Densberger, Officer Winters, and
Officer Wilkenson (together, the DeKalb Defendants), by and through their attorneys, Gardiner
Koch Weisberg & Wrona, move to dismiss the claims made against them in Plaintiffs Amended
Complaint (Dkt. #11), and in support, state as follows:
In her Amended Complaint, Plaintiff states equal protection and related 1983 and state
law conspiracy claims against the DeKalb Defendants in connection with the police response to
what started as a domestic dispute between Plaintiff and her boyfriend. The dispute took place at
the restaurant owned and managed by defendants Steak USA LLC, Vasilios Hristakos, and Peter
Kanavos (the Ellwood Defendants) where Plaintiffs boyfriend works. Plaintiff also alleges
claims of battery and negligence and related claims against the Ellwood Defendants.
With this motion, the DeKalb Defendants ask this Court to dismiss the claims made

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against them, as Plaintiff has failed to allege any facts whatsoever that support her claims against
Standard of Review
In ruling on a Rule 12(b)(6) motion to dismiss, the Court must view the complaint in
the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged,
and drawing all possible inferences in the plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008). The complaint must state a claim that is plausible on its face.
Iqbal v. Ashcroft, 556 U.S. 662, 663 (2009). Where a complaint pleads fact s that are
merely consistent w i t h a defendants liability, it stops short of the line between possibility
a n d plausibility of entitlement to relief. Id. at 678. (internal quotes omitted). Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice. Id. The required level of factual specificity rises with the complexity of the claim.
McCauley v. City of Chicago, 671 F. 3d 611, 616-17 (7th Cir. 2011)(citing Swanson v. Citibank,
N.A., 614 F. 3d 400, 404 (7th Cir. 2010).

Plaintiffs equal protection claims have not been adequately

pled and should be dismissed

In her Amended Complaint, Plaintiff states a traditional equal protection claim in Count
I and a class-of-one claim in Count II against the DeKalb Defendants. The claims mirror each
other with one exception: in Count I she alleges the DeKalb Defendants denied her equal
protection of the law motivated by gender animus and in Count II she alleges the denial of equal
protection was motivated by personal animus. As is argued further below, these claims have not
been adequately pled and should be dismissed.

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A. Plaintiff has not pled sufficient facts in her traditional

equal protection claim to support the conclusion that any
DeKalb Defendant, motivated by Plaintiffs gender,
violated her right to equal protection
The Equal Protection Clause of the Fourteenth Amendment, ratified to help protect the
equality that had been won in the Civil War, is most familiar as a guard against state and local
government discrimination on the basis of race, national origin, sex, and other class-based
distinctions. E.g., Loving v. Commonwealth of Virginia, 388 U.S. 1, (1967); see also United
States v. Virginia, 518 U.S. 515, 533-34 (1996) (heightened scrutiny for legal classification
based on sex). Generally, in order to state an equal protection claim, a plaintiff must allege that
she was treated differently than others similarly situated to plaintiff. Wroblewski v. City of
Washburn, 965 F. 2d 452, 458-9 (7th Cir. 1992).
In the context of government investigations or prosecutions, the Seventh Circuit has
explained that the Equal Protection Clause does not entitle a person to adequate, or indeed to
any, police protection. Hilton v. City of Wheeling 209 F3d 1005, 1007 (7th Cir. 2000). In
analyzing equal protection claims in this context, the Seventh Circuit has relied on the careful
application of the similarly-situated requirement to distinguish between unfortunate mistakes
and actionable, deliberate discrimination. Geinosky v. City of Chicago, 675 F. 3d 743, 747-48
(7th Cir. 2012) citing McDonald v. Village of Winnetka,374 F.3d 992, 1009 (7th Cir. 2004). A
plaintiff must raise a serious question whether the alleged differences in treatment stem from a
discriminatory purpose or from a relevant factual difference, the key evidence is often what was
done in the investigation or prosecution of others in similar circumstances. Geinosky, 675 F. 3d
at 748.
The similarly situated analysis is not a precise formula, but [the Seventh Circuit
has] stated repeatedly that what is clear [is] that similarly situated individuals must be very

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similar indeed. LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 942 ( 7 t h
C i r . 2 0 1 0 ) . (quoting McDonald, 374 F.3d at 1002). In other words, plaintiff and those
alleged to have been treated more favorably must be identical or directly comparable in all
material respects. Id. Dismissal at the pleading stage is appropriate where the plaintiff fails to
allege facts tending to show that she was similarly situated to any of the comparators. Id.
In this case, Plaintiff has not alleged that she was similarly situated to any person, or
that she was treated differently than any other person in a similar situation. See, e.g., Pinedo v.
City of Chicago, 2011 WL 829305 (N.D. Ill. 2011) (the plaintiffs conclusory allegations
regarding the similarly situated element did not give the defendants sufficient notice of
plaintiffs equal protection claim.). Plaintiff also fails to meet the narrow exception to the
similarly situated requirement carved out by Geinosky as the allegations in Plaintiffs complaint
do not stem from any pattern but instead one altercation and the subsequent investigation. See
Geinosky, 675 F. 3d at 748 (holding that the Plaintiff was not required to identify a comparator
because the pattern of twenty-four bogus parking tickets from the same police unit over a
fourteen-month period made it so simple to discern how defendants conduct toward Plaintiff
differed from the norm). See also Jarmuth v. City of Chicago, 43 F. Supp. 3d 889, 894 (N.D. Ill.
2014)(holding that Defendants behavior in regards to a single liquor license application did not
show the pattern of wrongful conduct required by Geinosky to avoid the similarly situated
Plaintiffs complaint contains no information about other individuals that found
themselves in similar situations involving the DeKalb Defendants to Plaintiff. These allegations
are required because they relate to whether the DeKalb Defendants decisions were rationally
based or discriminatory. See Nordmeyer v. Cundiff, 2011 WL 4529422 (S.D. Ill. 2011)(finding

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that the amount of fire damage among other similarly situated restaurants was material because
it directly related to whether defendants decision to allow some restaurants, but not plaintiffs,
to open was rationally based), see also Wroblewski, 965 F.2d at 459 (plaintiff failed to allege
that any similarly situated individual stands on the same footing as him).
Because Plaintiff has failed to allege that she was treated differently than any other
individual similarly situated to Plaintiff, her claim contained in Count I of her Amended
Complaint must be dismissed.
B. Plaintiff has not pled any facts in her class-of-one claim
that support the conclusion that any DeKalb Defendant,
motivated by any personal animus towards Plaintiff,
violated her right to equal protection
In Count II of her complaint, Plaintiff attempts to allege a class-of-one equal protection
claim. To state a class-of-one equal protection claim, a plaintiff must allege that she was
intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment. Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601
(2008) citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). While, the Seventh
Circuit has held that class-of-one claims can be brought based on allegations of the irrational or
malicious application of law enforcement powers, e.g., Hanes v. Zurick, 578 F.3d 491, 495 (7th
Cir.2009) (holding that Engquist exemption for public employment decisions does not extend to
law enforcement decisions), police are necessarily afforded wide discretion in performing their
duties. Geinosky, 675 F. 3d at 747.
In an equal protection context, courts have understood that if class-of-one claims are not
defined appropriately, they might turn many ordinary and inevitable mistakes by government
officials into constitutional violations and federal lawsuits. Id. The purpose of entertaining a
class of one equal protection claim is not to constitutionalize all tort law, nor to transform

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every claim for improper provision of municipal services or for improper conduct of an
investigation in connection with them into a federal case. Id. citing McDonald, 371 F. 3d at
As discussed above, Plaintiffs Amended Complaint does not contain a single allegation
that indicates she was treated differently from any other person similarly situated to her.
Plaintiff has also not alleged that any DeKalb Defendant took any single action related to this
altercation and its investigation due to her gender, or because of any illegitimate or personal
animus towards Plaintiff, or, in other words, that the DeKalb Defendants conduct was
irrational. In fact, Plaintiff does not allege that any DeKalb Defendant knew Plaintiff prior to the
altercation at the restaurant or the investigation of the altercation. Plaintiff also does not allege
that any DeKalb Defendant used any derogatory term towards her, particularly any genderrelated term. Plaintiff has apparently not suffered any persecution as a result of any of the
DeKalb Defendants alleged actions, but instead has admitted she was offered medical transport
at the scene of the dispute (Dkt. 11, 29), was allowed to make a statement to police regarding
the dispute (Id., 42), and was permitted to submit certain documentation to police regarding her
medical treatment allegedly related to the dispute (Id., 43).
In short, Plaintiffs claims of gender and personal animus are totally unfounded, and,
as a result, her claim for equal protection for withdrawal of police protection and claim for
class of one equal protection must be dismissed.

Plaintiffs claim for 1983 conspiracy must be dismissed

Plaintiffs 1983 claim for conspiracy alleges that the DeKalb Defendants conspired to
violate her constitutional right to equal protection, as alleged in Counts I and II. Because
Plaintiffs equal protection claims should be dismissed as argued above, Plaintiffs 1983

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conspiracy claim should also be dismissed.


Plaintiffs state law conspiracy claim against Defendants must

be dismissed

As argued above, Plaintiffs claims brought under federal laws in Counts I-III should be
dismissed. If these claims are dismissed, the only remaining direct claim against the DeKalb
Defendants is Plaintiffs state law conspiracy claim in Count IV. The Seventh Circuit consistently
has stated that it is the well-established law of this circuit that the usual practice is to dismiss
without prejudice state supplemental claims whenever all federal claims have been dismissed prior
to trial. Groce v. Eli Lilly, 193 F. 3d 496, 501 (7th Cir. 1999). Because all of Plaintiffs federal
claims are subject to dismissal, the court should decline to exercise supplemental jurisdiction over
Plaintiffs Count IV.

For the foregoing reasons, the DeKalb Defendants respectfully request that this Court
dismiss Plaintiffs claims against them in their entirety, or for any other relief this Court deems
Respectfully submitted,
s/Barry C. Owen
Barry C. Owen

Thomas G. Gardiner
Barry C. Owen
Michelle M. LaGrotta
53 W. Jackson Blvd., Suite 950
Chicago, Illinois 60604
Telephone 312.362.0000

Case: 3:16-cv-50156 Document #: 18 Filed: 07/08/16 Page 8 of 8 PageID #:81

I, Barry C. Owen, an attorney, hereby certify that service of this Motion to Dismiss was
accomplished via Electronic Case Filing on this 8th day of July 8, 2016.
s/Barry C. Owen
Barry C. Owen