United States District Court, N.D. Illinois, Eastern DivisionJul 20, 2004
No. 03 C 6353 (N.D. Ill. Jul. 20, 2004)

No. 03 C 6353.

July 20, 2004



On October 28, 2001, Plaintiff Nasser Akel, an Arab-American limousine driver, had an altercation with law enforcement officers at O'Hare Airport resulting in his filing an excessive force action under 42 U.S.C. § 1983 in federal court. While Plaintiff's § 1983 excessive force action was pending before Judge Grady of this court, the three officers filed a complaint with the Mayor's License Commission, seeking to revoke Akel's valid chauffeur's license. Some months later, counsel for the three officers offered to dismiss the License Commission proceeding in return for Plaintiff's dismissal of his civil rights case, but Plaintiff rejected that offer. Plaintiff believes that the proceeding before the License Commission should be stayed until after the resolution of his federal lawsuit, and City officials initially agreed to a stay. Then on March 24, 2003, when Plaintiff appeared before License Commission for what he believed would be a status conference, the Commission instead proceeded to hear evidence against him.

In this lawsuit, Plaintiff claims he has been denied his right to due process and seeks legal (Count I) and injunctive (Count II) relief against the License Commission and the City attorneys prosecuting the matter before the Commission (Defendants Alex Moskovitz and Melanie Neely). In Count III, Plaintiff alleges that the Commission, Mr. Moskovitz, Ms. Neely, the three officers (Defendants Chicago Police Officer Floyd Eppling, Chicago Police Officer William Peterson, and Cook County Correctional Officer Stephen Bednarczyk), and their attorney (Defendant Mitchell Frazen) all conspired to interfere with his civil rights, in violation of 42 U.S.C. § 1985. On November 19, 2003, Plaintiff dismissed his claims against Mr. Frazen voluntarily. All other Defendants have moved to dismiss the claims against them. For the reasons stated here, the motions are granted.


1. Legal Standard

On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the court accepts all well-pleaded allegations in a counterclaim as true and draws all reasonable inferences in favor of the plaintiff. Cozzi Iron Metal, Inc. v. U.S. Office Equip., Inc., 250 F.3d 570, 574 (7th Cir. 2001). A complaint will survive a 12(b)(6) motion if it "narrates an intelligible grievance that, if proved, shows a legal entitlement to relief." U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003) (citations omitted).

2. Requirement of an Injury

Three motions are before the court: The License Commission argues (1) that the court should abstain from proceeding in this case under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971); (2) that as Plaintiff has not alleged that any action taken against him is a function of City policy, the complaint should be dismissed pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978); (3) that Plaintiff's due process claims should be dismissed because he has not alleged any deprivation of liberty or property; and (4) that Plaintiff's conspiracy claim should be dismissed because Plaintiff has not identified any Commission representative who engaged in any alleged conspiracy. The individual City Defendants, Officers Eppling and Peterson and Attorneys Neely and Moskovitz, argue that (1) Defendant Neely and Moskovitz enjoy absolute immunity from all claims asserted against them; (2) Defendants Eppling and Peterson have qualified immunity against the conspiracy claim in Count III; (3) because Plaintiff has suffered no constitutional injury, all three counts should be dismissed as against all Defendants. Defendant Bednarczyk, who is named only in Count III, contends that he is entitled to dismissal because Plaintiff has not alleged that Bednarczyk conspired with anyone to interfere with Plaintiff's right of access to the courts.

In the court's view, although these motions characterize the issue in slightly different ways, all three raise the issue of standing. As standing is a threshold matter and as it is dispositive in this case, the court addresses that issue first.

To satisfy Article III standing requirements, a plaintiff must demonstrate an "injury in fact" that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). At the pleading state, the court will accept general factual allegations of injury, id. at 561, and as our Court of Appeals has explained, will draw reasonable inferences from those allegations in favor of Plaintiff. Lee v. Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (citation omitted). Nevertheless, Plaintiff bears the burden of establishing the required elements of standing. Id. (citations omitted). If a defendant challenges standing as a factual matter, the plaintiff must come forward with "competent proof" — that is a showing by a preponderance of the evidence — that standing exists. Id. (citation omitted).

As noted, Plaintiff has a pending civil rights action in this court, arising from an October 28, 2001 incident at O'Hare. Also pending is a license revocation proceeding initiated in January 2002, according to Plaintiff, in retaliation for his filing of the earlier civil rights suit. As of the filing of his complaint in this case (September 9, 2003), both of those matters remained pending. Plaintiff is distressed that, in his view, Defendants breached their agreement to allow the license revocation case to be stayed pending the outcome of the federal case. Notably, however, he does not allege that the alleged breach caused him any harm; specifically, so far as the court is aware, the license revocation proceeding remains pending, and no decision, adverse or otherwise, has been rendered.

Here, Plaintiff has suffered no cognizable injury, and, thus, this case is not ripe for adjudication. Neither his Amended Complaint, nor any of the briefs he has filed in response to the motions to dismiss, identifies any specific harm. In Counts I and II, Plaintiff asserts that Defendants Moskovitz, Neely, and the License Commission violated his due process rights in that Moskovitz "reneg[ed] on his agreement not to proceed with the [license revocation] hearing." (Amended Complaint, ¶¶ 55, 57, 59.) Nothing in any of Plaintiff's submissions suggests that the revocation proceedings themselves are inadequate to satisfy due process requirements; there is no indication, for example, that Plaintiff has not been provided with notice of the charges against him or an opportunity to be heard. In his memorandum in opposition to the License Commission's motion to dismiss, Plaintiff asserts that "the City does NOT APPLY its procedures," (Response to Defendant City of Chicago, Mayor's Licensing Commissioner Motion to Dismiss, at 2), but he has not identified any respect in which the procedures before the Commission were inconsistent with its own rules or with the requirements of due process. Instead, Plaintiff is troubled by the fact that, to his surprise, the Commission proceeded to hear testimony in his case on one occasion. So far as the court is aware, however, he retains the right to cross-examine that witness and to call witnesses in his own behalf. Should the Commission render a decision adverse to Plaintiff, Defendants assert, Plaintiff will have the right to appeal. He does not challenge this assertion.

Indeed, language from Plaintiff's own memoranda confirm the conclusion that his concern relates to possible future harm, not existing injury: He asserts that "revocation of Plaintiff's license would irrevocably destroy his business and his income," (Plaintiff's Response to Motion to Dismiss of Defendants Neely, Moskovitz, Eppling and Peterson, at 2), but nothing in the record supports the conclusion that revocation is imminent or likely. The Supreme Court has held that

when . . . the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control. . . . we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.
Lujan, 504 U.S. at 564 n. 2 (citations omitted).

Nor has Plaintiff suffered any injury as a result of the conspiracy alleged in Count III. Plaintiff apparently believes that a settlement offer made by an attorney for Officers Bednarczyk, Peterson, and Eppling was an improper effort to "intimidate Plaintiff" and discourage him from testifying in the federal action pending before Judge Grady. The effort was obviously unsuccessful, however. Plaintiff declined the settlement offer and maintained his civil rights action. Again, Plaintiff's own words confirm that he suffered no actual harm as a result of the alleged settlement offer, calling it " attempted extortion." (Plaintiff's Response to Motion to Dismiss of Defendants Neely, Moskovitz, Eppling and Peterson, at 6 [emphasis supplied].) In any event, Plaintiff has not explained how the fact that Defendants Moskovitz and Neely allegedly reneged on their agreement to stay the Commission proceedings renders those attorneys, and the Commission itself, participants in a conspiracy.

3. Defendants' Remaining Arguments

The court is comfortable in concluding that Plaintiff's complaint should be dismissed because he has not alleged an injury in fact. As noted above, Defendants have raised a number of additional defenses. The court need not address those arguments at length, but observes that at least some of them appear to have merit. For example, Attorneys Moskovitz and Neely have argued that they are entitled to prosecutorial immunity. Contradicting his own complaint (cf. Amended Complaint ¶ 12), Plaintiff argues that "Moskovitz . . . is not even an attorney," but does not otherwise respond to this defense. In fact, it is generally recognized that, whether or not they are licensed attorneys, government agency officials performing functions analogous to those of a prosecutor are entitled to immunity with respect to those functions. See Butz v. Economou, 438 U.S. 478 (1978) (officials responsible for decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute prosecutorial immunity; those performing adjudicatory functions are entitled to absolute judicial immunity). Immunity is appropriate here in part because Plaintiff Akel will certainly have the opportunity to contest Defendants' efforts to have his license revoked, either in the administrative proceedings themselves, or on appeal. In a case involving civil forfeiture proceedings against a building housing an adult bookstore, our Court of Appeals explained:

We believe that agency officials must make the decision to move forward with an administrative proceeding free from intimidation or harassment Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, we hold that those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.
Mendenhall v. Goldsmith, 59 F.3d 685, 690 (7th Cir. 1995). See also Mnyofu v. Board of Educ. of School Dist. 227, No. 03 C 8717, 2004 WL 783507, *2 (N.D. Ill. Jan. 12, 2004) (child service workers who initiate and prosecute proceedings for protective orders enjoy immunity); Boloun v. Williams, No. 00 C 7584, 2002 WL 31426647 (N.D. Ill. Oct. 25, 2002) (state employees' acts of filing complaint against real estate broker and his businesses with the Office of Banks and Real Estate, petitioning for summary suspension of their real estate licenses, and failing to provide notice of request for summary suspension to broker, all constituted acts toward initiating prosecution, such that employees would be entitled to prosecutorial immunity from § 1983 claims arising from acts).

Nor has Plaintiff responded satisfactorily to the License Commission's argument that this court should abstain pursuant to the Younger doctrine. That doctrine generally precludes federal courts from issuing injunctions against the continuation of state court and state administrative proceedings. See Midwestern Gas Transmission Co. v. McCarty, 270 F.3d 536, 537 (7th Cir. 2001), cert. denied, 53 U.S. 1053 (2002). Plaintiff appears to misunderstand the doctrine's application to this case; he points out that Younger does not apply "when there is no prosecution pending in state courts at the time the federal proceeding is begun." Younger, 401 U.S. at 41. In his response to the License Commission's motion, Plaintiff presents a timeline: the altercation at O'Hare occurred on October 28, 2001; on November 20, 2001, Plaintiff made efforts to preserve the testimony of his passenger concerning that altercation; on December 19, 2001, he filed his civil rights action concerning the events of October 28, 2001. The license revocation proceedings were initiated on January 2, 2002.

Significantly, Plaintiff's time line does not include the date on which this lawsuit was filed: September 9, 2003, many months after the license revocation proceedings began. Plaintiff might be correct that Younger therefore does not bar his proceeding with his original federal lawsuit, the one before Judge Grady. The motion at issue seeks dismissal of this case, though, not that one, and Younger appears directly controlling.


For the foregoing reasons, all Defendants' motions to dismiss the amended complaint (Doc. Nos. 27-1, 29-1, and 31-1) are granted. Defendant Bednarczyk's motion to dismiss Plaintiff's original complaint (Doc. No. 8-1) is denied as moot. Plaintiff has leave to file an amended complaint, if he can do so consistent with Rule 11, within 21 days, on or before August 10, 2004.