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Date: 05-17-2018

Case Style:

Edward Tobey v. Brenda Chibucos and Mary Stanton

Northern District of Illinois Courthouse - Chicago, Illinois

Case Number: 16-3927 & 16-4037

Judge: Rovner

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: John Thomas Moran, Jr. and Raymond J. Smith

Defendant's Attorney: Joy C. Fitzgerald and Karen Denise Fox

Description: 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
2 Nos. 16-3927 & 16-4037
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.
I.
“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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570, (2007)). Although we must accept as true the wellpleaded
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. 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.
Nos. 16-3927 & 16-4037 3
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
1 Although Tobey’s twenty-six page, one hundred and forty-five paragraph
complaint never identifies the charges to which he pled guilty in both states,
the euphemistically pled “videos of young girls” and the “downloads” to
his computers were not innocuous materials. Documents that he attached
to his complaint make patent all that is implied in Tobey’s complaint: the
videos that he purchased and the images that he downloaded consisted of
child pornography.
2 Other parts of the record, including undisputed Florida court orders
setting the terms of probation, suggest that Tobey’s Florida probation will
last until 2032. This unresolved factual issue is immaterial to the appeal,
however, because there is no question that Tobey was on probation at the
time of the events referenced in the complaint.
4 Nos. 16-3927 & 16-4037
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 “mainte-
3 All fifty states participate in the Interstate Compact on Adult Offender
Supervision (“ICAOS”), which governs the interstate transfer of supervision
of persons serving a period of probation. Florida joined the ICAOS in 2000,
and Illinois signed on in 2002. See www.interstatecompact.org (last visited
May 11, 2018).
Nos. 16-3927 & 16-4037 5
nance” 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
6 Nos. 16-3927 & 16-4037
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
Nos. 16-3927 & 16-4037 7
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 F.3d 379, 380 n.2 (7th Cir. 2009) (when
defendants dispute facts on a motion to dismiss, the facts as
alleged by the plaintiff are presumed to be true). Cf. Watkins v.
United States, 854 F.3d 947, 950 (7th Cir. 2017) (in the absence of
a plausible, good-faith basis to challenge the legitimacy of a
pleading, the court is entitled to take judicial notice of a
complaint and its contents). Granted, the conflict between
Tobey’s allegations and the certified court record poses a
thorny issue. Court records are not invariably accurate and
may at least contain typographical errors if not outright
8 Nos. 16-3927 & 16-4037
falsehoods. But the issue is not one that we need to resolve
because, as we discuss below, Tobey’s claims fail on other
grounds even if we credit his improbable allegations. Second,
we must address the version supported by the public record
when we attend to the arguments for sanctions in the district
court and on appeal. We return for now to Tobey’s version of
events.
According to Tobey, on April 15, 2013, he was scheduled
for an appointment at the Adult Probation Office to meet with
Chibucos regarding his failure to sign the behavioral agreement.
He first went to his lawyer’s office, but the lawyer was
unavailable so he proceeded to the Probation Office. While in
the waiting room, he was arrested by two Lake County Sheriff’s
Deputies and taken to the Lake County jail. Chibucos and
Stanton had an agreement, approved by their supervisors, to
have Tobey taken into custody and the Sheriff obliged. Four
days later, Tobey spoke to his son-in-law, who had spoken to
Tobey’s criminal defense lawyer. That lawyer told his son-inlaw
that the Illinois judge who presided over Tobey’s criminal
case said that Tobey would not be transported to Florida but
would be released from custody on April 22.
On April 21, despite what Tobey claims was an order
barring his removal from Illinois, and allegedly without any
legal process, Tobey was purportedly “kidnapped” from the
Lake County jail, shackled and placed in a van, where he
remained shackled for three and a half days as he was transported
to the Manatee County, Florida jail. During this
“rough” ride, Tobey’s recent hernia repair began to fail,
resulting in a second surgery when he eventually returned to
Illinois. Tobey further alleged that, in order to provide legal
Nos. 16-3927 & 16-4037 9
cover for Chibucos and in furtherance of an agreement to force
Tobey to sign the behavioral agreement, Stanton sent Tobey’s
attorney an unstamped notice of arraignment dated April 18,
2013, on a Petition to Revoke Probation, for a hearing to be
held May 2, 2013. He alleged that Stanton knew that he would
be out of the jurisdiction on May 2, having arranged his
purportedly involuntary departure. He also alleged that
Stanton then sent a file-stamped copy of the notice and the
petition to Tobey’s lawyer, knowing counsel would not receive
the notice until after Tobey was removed from the state, all in
furtherance of an agreement between Stanton and Chibucos to
provide cover for their illegal coercion of Tobey.4
According to Tobey, Stanton remained silent in the face of
Tobey’s “kidnapping.” On May 16, 2013, Stanton and Tobey’s
criminal defense attorney appeared before the Illinois judge
who oversaw Tobey’s prosecution and entered an agreed order
to return Tobey to Illinois, supposedly pursuant to a
previously-issued bench warrant for Tobey’s return, although
Tobey denied that a bench warrant appeared in the court’s file.
A June 13, 2013 order attached to the complaint also directed
that Tobey be returned to Illinois to appear before that same
judge on June 27, 2013. But Stanton allegedly ignored those
4 Tobey asserts in the space of a few sentences both that he has attached a
true and correct copy of the notice and petition to his complaint as Exhibit
F, and that no petition is attached to the notice. Because there is a petition
to revoke attached to the notice that Tobey himself provided, we will
assume that the petition was in fact attached. R. 1-1, at 10. It is unclear
whether any hearing occurred in Illinois on May 2, but as we discuss below,
there were court appearances in both Illinois and Florida related to these
events.
10 Nos. 16-3927 & 16-4037
orders and made no attempts to secure Tobey’s return to
Illinois.
Instead, two months later, in August 2013, Stanton and
Chibucos sent to Manatee County, Florida, a modified behavioral
agreement containing many of the same terms as the
agreement Tobey previously declined to sign, and doubling to
ten the number of psychological counseling sessions that
Tobey would be required to attend at a cost of $40 per session.
After consulting with Florida counsel, and believing that he
would not be released from the Manatee County jail unless he
signed the behavioral agreement, Tobey asserted that he
signed the agreement under duress. After signing the agreement,
a Florida judge entered an order on a motion of the
Manatee County state’s attorney dismissing the “violation of
probation warrant” against Tobey. Yet according to Tobey:
There was no violation of probation warrant or any
other process justifying [Tobey’s] kidnaping and
transportation from Illinois to Florida nor for his
106-plus days in custody in Florida.
R. 1-1, at 12. The Florida court ordered Tobey returned to
Illinois and he did subsequently return to Illinois after serving
more than 106 days in jail purportedly without any legal
process authorizing his incarceration. When he returned to
Lake County, he claimed he was compelled by the defendants
to sign another behavioral agreement, identical to the one he
signed in Florida.
His troubles with Chibucos and Stanton continued after his
return. Chibucos would sometimes approve his travel out of
state and sometimes not. When an Illinois judge approved a
Nos. 16-3927 & 16-4037 11
visit to Tobey’s home from his adult daughter and her minor
child, Chibucos allegedly threatened Tobey with an additional
“kidnapping” if she ever obtained evidence that his minor
granddaughter visited his Lake Bluff house. Tobey forwent
visits with his daughter and granddaughter in fear of another
“kidnapping.” In June 2014, Stanton again filed a notice and
petition to revoke, this time on the grounds that Tobey failed
to successfully complete sex offender treatment, wilfully failed
to pay court costs and failed to complete 200 hours of public
service. Tobey claimed that the court took no action on this
purportedly frivolous petition to revoke.
On September 4, 2014, approximately three months after
the therapist’s report recommending a six-month extension to
Tobey’s therapy, the court granted Stanton’s motion to extend
Tobey’s Illinois probation six months. The next month, Tobey
passed a series of polygraph exams and was then no longer
restricted from visiting his daughter.5 Yet when he asked
Chibucos to visit his daughter in Oregon over the 2014 Christmas
holiday, she declined to grant permission unless his
therapist designated his daughter as his granddaughter’s
babysitter during the visit. Although Tobey secured the
designation from his therapist, Chibucos never granted
permission for the visit.
Tobey’s Illinois probation terminated in March 2015 but he
remained under Chibucos’s supervision for his Florida
probation. In May of that year, she granted him permission to
5 As we will discuss below, according to undisputed court probation
orders, passing the polygraph was not alone sufficient to remove the
restrictions on contact with minors.
12 Nos. 16-3927 & 16-4037
travel to Texas and Louisiana to visit adult friends. Three
months later, he requested permission to visit his daughter in
Oregon but Chibucos claimed that she lacked authority to
approve the visit and directed him to contact the probation
office in Florida. Tobey was not aware that any of the actions
taken against him by Chibucos and Stanton were allegedly
unlawful until his attorney reviewed his file in March 2016.
From March 2012 through the filing of his complaint, he
claimed that he remained under threat of incarceration without
due process.
On April 1, 2016, Tobey filed a six-count complaint against
Chibucos, Stanton and their unnamed supervisors. Count I
alleged illegal arrest and detention in violation of the Fourth,
Fifth, Eighth and Fourteenth Amendments. In particular, he
alleged that he was taken into custody, involuntarily transported
to Florida and detained in a Florida jail for 106 days
without any legal justification and without any pre-incarceration
hearing. Count II alleged that, in violation of due process
and his rights under those same Amendments, Chibucos
continues to threaten to have Tobey kidnapped and incarcerated
again if he visits his granddaughter; wrongfully refuses to
approve visits to his granddaughter; and repeatedly files
frivolous petitions to revoke his probation. He asserted that
Stanton provides legal cover for Chibucos’s actions. Count III
asserted supervisory liability for the actions of Stanton and
Chibucos alleged in the first two counts. Counts IV, V, and VI
alleged state law claims for malicious prosecution, intentional
infliction of emotional distress and conspiracy.
The defendants moved to dismiss the complaint under Rule
12(b)(6). They also sought sanctions for the filing of a frivolous
Nos. 16-3927 & 16-4037 13
complaint. They attached to their motion to dismiss 113 pages
of documents consisting largely of file-stamped and certified
copies of court records in Illinois and Florida, along with
printouts from the public dockets of those courts. The exhibits
also contain a small number of letters, emails and fax transmissions.
Relying on those documents for a very different version
of the facts, and asking the court to take judicial notice of some
of the exhibits, the defendants argued that some claims were
barred by the statute of limitations, that all of the defendants
were entitled to absolute immunity from suit, and that Tobey
failed to state any facts supporting a plausible claim.
The district court concluded that Count I was barred by the
statute of limitations, and in the alternative, that count failed
to state a claim. In reaching the latter conclusion, the court took
judicial notice of some of the exhibits to find that Tobey was
transported to Florida pursuant to a Florida court order. The
court remarked that none of the allegations suggested that
Stanton or Chibucos had the legal authority to arrest Tobey or
any ability to control what happened to him once Florida
authorities took him into custody. The court rejected Tobey’s
challenges to the authenticity of some of the documents on
which the court relied, finding that Tobey provided no
legitimate basis for his objection.
On Count II, the court again relied in part on the defendants’
version of the facts in concluding that there was no
indication that the defendants ordered Tobey’s arrest or
procured the warrant that led to his removal to Florida. The
court also concluded that none of the conduct alleged rose to
a level of a constitutional violation. Instead, the defendants’
documents suggested that Tobey was represented by counsel
14 Nos. 16-3927 & 16-4037
at each stage of the proceedings, and that, in any event, he had
waived any objection to extradition when he requested transfer
of his probation supervision to Illinois. The court therefore
dismissed Count II for failure to state a claim.
Count III met the same fate because Tobey failed to allege
any acts personally taken by the supervisors of Chibucos and
Stanton, instead offering only speculation that the supervisors
approved their actions. Taking a belt-and-suspenders approach,
the court also concluded that all of the defendants
were entitled to immunity for any actions they took with
respect to Tobey. Finally, the court declined to exercise
supplemental jurisdiction over the state law claims and
dismissed them without prejudice.
In a separate order, the court declined to award sanctions
that the defendants sought for the filing of a frivolous complaint.
The defendants cited the certified court records that
they attached to their motion to dismiss to demonstrate that
Tobey’s assertions of a lawless kidnapping were false, and to
establish that counsel could have easily discovered the truth
with simple searches of the dockets of courts in Illinois and
Florida. In the face of the motion for sanctions, Tobey and his
lawyers continued to insist that Tobey’s version of the facts
was correct and that the court records were inauthentic or
falsified. The district court found that the record lacked
sufficient support to show that Tobey and his lawyers acted in
a manner inconsistent with Rule 11. Tobey appeals and the
defendants cross-appeal.
Nos. 16-3927 & 16-4037 15
II.
We review de novo the district court’s decisions to dismiss
claims pursuant to Rule 12(b)(6), accepting as true all wellpleaded
facts and drawing all reasonable inferences in favor of
the non-moving party. Ball v. City of Indianapolis, 760 F.3d 636,
642–43 (7th Cir. 2014); Bielanski v. County of Kane, 550 F.3d 632,
633 (7th Cir. 2008). “Although the statute of limitations is an
affirmative defense, dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure is appropriate if the complaint
contains everything necessary to establish that the claim is
untimely.” Collins v. Village of Palatine, Ill., 875 F.3d 839, 842
(7th Cir. 2017).
The parties agree that the statute of limitations for section
1983 actions filed in Illinois is two years. Liberty v. City of
Chicago, 860 F.3d 1017, 1019 (7th Cir. 2017). Count I alleged that
Tobey was kidnapped on April 15, 2013 as he waited to meet
with Chibucos. He was placed in a van on April 21, 2013 and
arrived in Florida three and a half days later, which would
have been approximately April 25, 2013. He was then held in
Florida for 106 days. The Florida court ordered his return to
Illinois on August 15, 2013. Tobey filed his complaint on
April 1, 2016.
The statute of limitations begins to run when the plaintiff
has knowledge of the injury and knowledge that the defendant,
acting within the scope of his or her employment, may
have caused the injury. Liberty, 860 F.3d at 1019 (citing Arteaga
v. United States, 711 F.3d 828, 831 (7th Cir. 2013)). In the case of
false arrest and false imprisonment, the limitations period
begins to run when the alleged false imprisonment ends.
16 Nos. 16-3927 & 16-4037
Wallace v. Kato, 549 U.S. 384, 389 (2007). “Reflective of the fact
that false imprisonment consists of detention without legal
process, a false imprisonment ends once the victim becomes
held pursuant to such process—when, for example, he is
bound over by a magistrate or arraigned on charges.” Wallace,
549 U.S. at 389. Tobey asserts that he never received process
and that he was never brought before a judge. However, he
attached to his complaint the order of the Florida judge who
ordered his release on August 15, 2013, and a court may
consider that document in deciding a motion to dismiss.
Williamson v. Curran, 714 F.3d 432, 435–36 (7th Cir. 2013);
Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).
Even if we credit his allegations that he was never brought
before a judge in Illinois or Florida, his purportedly illegal
detention ended no later than August 2013, and the limitations
period therefore ended in August 2015. Yet he did not file his
complaint until April 1, 2016, at least seven months too late.
Tobey argues that he alleged in his complaint that he “did
not know that the actions of the defendants, known and
unknown, towards him were without process of law until he
had counsel view the records relating to his probation in
March of 2016.” R. 1-1, at 16–17. It is difficult to comprehend
Tobey’s argument on a factual level because a person who has
been “kidnapped” by sheriff’s deputies and transported to a
jail in another state would know whether he received any legal
process along the way. That is, he would know, as a factual
matter, if he had been brought before a judge. In fact, Tobey
affirmatively declares that he was not brought before a judge,
effectively conceding that he knew immediately as a factual
Nos. 16-3927 & 16-4037 17
matter that his arrest and imprisonment occurred without legal
process.
Tobey may also be suggesting that he did not know that the
acts of these government officials were unlawful until his
lawyer reviewed his file a few years later. But Tobey’s ignorance
of his legal rights does not affect the accrual of his claim
for statute of limitations purposes. Massey v. United States,
312 F.3d 272, 276 (7th Cir. 2002) (claim accrues when plaintiff
has knowledge of both the existence and cause of his injury,
and not at a later time when he knows that the acts inflicting
the injury may constitute malpractice). See also United States v.
Kubrick, 444 U.S. 111, 122 (1979) (for statute of limitations
purposes, a plaintiff’s ignorance of his legal rights and ignorance
of the fact and cause of the injury do not receive equal
treatment). “A plaintiff … armed with the facts about the harm
done to him, can protect himself by seeking advice in the …
legal community. To excuse him from promptly doing so by
postponing the accrual of his claim would undermine the
purpose of the limitations statute[.]” Kubrick, 444 U.S. at 123.
See also Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016)
(federal law governs the accrual date for section 1983 claims,
which is when the plaintiff knows or should know that his or
her constitutional rights have been violated). Tobey had all of
the knowledge he needed to file a claim as of August 2013. His
failure to investigate his legal rights for more than two more
years does not postpone the accrual of his claim. CSC Holdings,
Inc. v. Redisi, 309 F.3d 988, 992–93 (7th Cir. 2002) (a statute of
limitations begins to run once a plaintiff has knowledge that
would lead a reasonable person to investigate the possibility
that her legal rights have been infringed).
18 Nos. 16-3927 & 16-4037
Tobey finally argues that he is entitled to equitable tolling
because (1) the defendants engaged in continuing violations of
his rights and (2) despite all due diligence, he did not learn
vital information bearing on the existence of his claim until
March 2016 when he went to the Lake County Clerk’s Office
and examined the record. We have already addressed his
second argument: Tobey possessed all of the information
necessary to file his claim as of August 2013, and his ignorance
of the legal significance of that information does not toll his
claim. As for the continuing violation doctrine, Count I pleads
a discrete incident that occurred in a defined time frame that
ended in August 2013. “The continuing violation doctrine is …
applicable when the state actor has a policy or practice that
brings with it a fresh violation each day.” Savory v. Lyons,
469 F.3d 667, 672 (7th Cir. 2006). See also Clark v. City of Braidwood,
318 F.3d 764, 767 (7th Cir. 2003) (under federal law, the
continuing violation doctrine does not save an otherwise
untimely suit when a discrete incident of unlawful conduct
gives rise to continuing injuries because the plaintiff can bring
a single suit based on an estimation of total injuries); CSC
Holdings, 309 F.3d at 992 (equitable tolling operates until the
plaintiff knew or by reasonable diligence should have known
of both the injury and its governing cause). Although Count II
purports to allege a continuing violation of his rights, Count I
is focused on a specific incident that ended more than two
years before Tobey filed his complaint. The continuing
violation doctrine simply does not apply to Count I. The
district court correctly concluded that Count I is barred by the
statute of limitations.
Nos. 16-3927 & 16-4037 19
III.
In Count II, Tobey pled that: (1) Chibucos repeatedly
threatened and continues to threaten to have Tobey kidnapped
and removed to Florida again if he visits his granddaughter;
(2) Chibucos refused and continues to refuse to permit Tobey
to visit his granddaughter in Oregon, falsely claiming a lack of
jurisdiction over his requests; and (3) Stanton gave and
continues to give cover of law to Chibucos’s illegal acts by
filing petitions to revoke probation and a motion to extend
probation. Tobey again alleged in Count II that he had no basis
for knowing that the defendants’ acts were illegal until he
reviewed court documents in March 2016.6
In an argument encompassing both Counts I and II, Tobey
asserts on appeal that the district court erred in relying on the
documents supplied by the defendants in their motion to
dismiss. He contends that a court may not rely on such
documents without converting the motion to dismiss to a
motion for summary judgment. Moreover, Tobey:
6 To the extent that the past threats and past conduct of Chibucos and
Stanton alleged in Count II occurred more than two years prior to the filing
of the complaint, those claims were properly dismissed on statute of
limitations grounds as we explained above. Tobey did not plead particular
dates in this count, and the analysis which follows must necessarily address
only conduct that was alleged to have taken place within the two years
prior to the filing of the complaint. That conduct consists entirely of threats
to remove him to Florida if he visits his minor granddaughter, refusals to
approve visits with his minor granddaughter, and the provision of “legal
cover” for these threats and refusals.
20 Nos. 16-3927 & 16-4037
challenges the accuracy of defendants’ documents,
such as those purporting to show plaintiff in court
before another judge without any transcript of the
proceedings and where plaintiff states from the time
of his arrest to his return from Florida over 106 days
later he never appeared before a judge, and further
asserts that some of the documents misrepresent
what actually occurred.
Brief of Appellant, at 26. Tobey maintains that he was taken
into custody on April 15, 2013, not on April 22, the date
documented in court records produced by the defendants. He
contends that, contrary to the assertions in the documents
produced by the defendants, he was not brought before a
judge when he was taken into custody in Lake County, nor did
he see a judge during his Florida incarceration, including at the
time of his release. He also attacks the defendants for claiming
“without foundation, that plaintiff was represented by counsel
throughout all events.” Brief of Appellant, at 27. He casts
doubt on the validity of a Florida warrant that the defendants
attached to their motion to dismiss, and generally attacks the
validity of several of the documents submitted by the defendants.
Finally, he argues that, in dismissing the complaint, the
district court ignored the continuing nature of the threats and
actions of the defendants.
Although a court may generally take judicial notice of
public records, under Federal Rule of Evidence 201, a court
may judicially notice only a fact that is not subject to reasonable
dispute. White v. Hefel, 875 F.3d 350, 358 (7th Cir. 2017);
Olson v. Champaign County, Illinois, 784 F.3d 1093, 1097 n.1 (7th
Cir. 2015) (as “a general rule, we may take judicial notice of
Nos. 16-3927 & 16-4037 21
public records not attached to the complaint in ruling on a
motion to dismiss under Rule 12(b)(6)”).
A motion under Rule 12(b)(6) can be based only on
the complaint itself, documents attached to the
complaint, documents that are critical to the complaint
and referred to in it, and information that is
subject to proper judicial notice. See Fed.R.Civ.P.
10(c) (written instrument that is exhibit to pleading
is part of pleading for all purposes)[.] … If a moving
party relies on additional materials, the motion must
be converted to one for summary judgment under
Rule 56.
Geinosky, 675 F.3d at 745 n.1. See also Daniel v. Cook County,
833 F.3d 728, 742 (7th Cir. 2016) (courts routinely take judicial
notice of the actions of other courts or the contents of filings in
other courts but may take judicial notice of findings of fact
from another court proceeding only if the fact is not subject to
reasonable dispute); Hennessy v. Penril Datacomm Networks, Inc.,
69 F.3d 1344, 1354 (7th Cir. 1995) (“In order for a fact to be
judicially noticed, indisputability is a prerequisite.”). “Judicial
notice is a powerful tool that must be used with caution.”
Daniel, 833 F.3d at 742.
The date of Tobey’s arrest and whether he was taken before
a judge during these events are matters that are arguably
subject to reasonable dispute and therefore not a proper subject
of judicial notice. Court records, like any other documents,
may contain erroneous information. Tobey, who obviously has
first-hand knowledge of his own arrest, swears under penalty
of perjury that he was arrested on April 15, not April 22, 2013.
22 Nos. 16-3927 & 16-4037
Tobey also asserts under penalty of perjury that he was never
taken before a judge at any time after his arrest, prior to his
removal to Florida, or after his arrival in a Florida jail. He
contends that court records to the contrary are incorrect or
have been falsified. Tobey’s sworn account of events to which
he was a personal witness provides a plausible, good-faith
basis to challenge the legitimacy of those documents. Watkins,
854 F.3d at 950. Because his assertions contradict certified court
records from two different states, we note again the improbability
of Tobey’s version of events, but it was neither proper
nor necessary to rely on the defendants’ documents to resolve
genuinely disputed facts (such as the date of the arrest and
whether Tobey was brought before a court) in order to dismiss
Count II.
That is not to say that a court must ignore all of the documents
that the defendants attached to their motion to dismiss.
As we noted, a Rule 12(b)(6) motion may be based, in part, on
documents that are critical to the complaint and referred to in
it as well as information properly subject to judicial notice.
Geinosky, 675 F.3d at 745 n.1. The defendants attached to their
motion two Florida Orders of Sex Offender Probation and one
Illinois Order and Certificate of Felony Probation, all filestamped
by those courts and bearing indicia of reliability
(including a certification of authenticity in the case of the
Illinois document). R. 11-2, Exs. A, C and F. Tobey’s complaint
contains innumerable references to the fact of his probation
and the conditions set by judges in two states. He has not
challenged the authenticity of these particular documents or
the conditions of probation set forth in the courts’ orders. In
these circumstances, the conditions of probation set forth in
Nos. 16-3927 & 16-4037 23
these documents are subject to judicial notice. See Daniel,
833 F.3d at 742.
In addition to standard conditions of probation, each court
imposed additional constraints relevant to the circumstances
of Tobey’s crimes. For example, the Illinois court ordered an
“open mandate as directed by probation” for Tobey to undergo
medical or psychiatric treatment. The Illinois court also
ordered that Tobey’s probation be assigned to the Sex Offender
Unit, that he comply with all of the rules of that unit, and that
he was prohibited from all “internet usage unless approved/
monitored - except for work purposes[.]” The Florida
orders also prohibited internet access but under slightly
different terms. Tobey was not allowed internet access “until
a qualified practitioner in the offender’s sex offender treatment
program, after a risk assessment is completed, approves and
implements a safety plan for the offender’s accessing or using
the internet or other computer services.” The Florida order
further forbade contact with children under the age of eighteen
except for supervised visits that could be approved by the
court after a recommendation from a qualified practitioner
who had conducted a risk assessment, and only if Tobey was
undergoing or had successfully completed a sex offender
therapy program. Florida also required successful completion
of polygraph exams as part of his treatment program. As
Tobey himself pled, Illinois also required that he participate in
psychological group therapy sessions and that he pass poly24
Nos. 16-3927 & 16-4037
graph exams administered by probation officers as part of his
sex offender treatment program.7
In the context of those undisputed court orders, we consider
the allegations of Counts I and II and must conclude that
the defendants were entitled to immunity from suit. Prosecutors
and probation officers are absolutely immune from suits
challenging conduct intimately associated with the judicial
phase of the criminal process. Van de Kamp v. Goldstein, 555 U.S.
335, 340–41 (2009) (prosecutors); Imbler v. Pachtman, 424 U.S.
409, 430 (1976) (prosecutors); Dawson v. Newman, 419 F.3d 656,
662 (7th Cir. 2005) (parole officers); Copus v. City of Edgerton,
151 F.3d 646, 649 (7th Cir. 1998) (probation officers). Illinois
courts follow the federal law on absolute immunity. See Frank
v. Garnati, 989 N.E.2d 319, 320–21 (Ill. App. Ct. 2013); White v.
City of Chicago, 861 N.E.2d 1083, 1088–94 (Ill. App. Ct. 2006).
A careful review of the complaint reveals that Tobey
accuses Stanton of nothing more than filing motions with the
court to extend his probation date and to revoke his probation,
and setting hearing dates to accomplish those goals. Although
he suggests that Stanton’s motives were to provide cover for
7 The first Florida order was entered May 12, 2010 and provided a term of
120 days of imprisonment followed by four years of probation to run
concurrently on each of two counts. The second Florida order was entered
on September 1, 2011 and ordered an additional 144 days of imprisonment
followed by four consecutive five-year terms of probation, for a total of
twenty years of probation. The Illinois order was entered on January 27,
2012, and provided for a sentence of thirty months’ probation, which was
subsequently extended six months. Tobey was thus subject to the Florida
conditions of probation during the entire period of the events set forth in
the complaint. He was subject to the Illinois conditions until March 6, 2015.
Nos. 16-3927 & 16-4037 25
unlawful actions by Chibucos, her motives are irrelevant to the
absolute immunity question when the actions she is accused of
taking are intimately associated with the quasi-judicial phase
of the criminal process. Archer v. Chisholm, 870 F.3d 603, 612
(7th Cir. 2017) (prosecutors are absolutely immune for actions
they undertake in their capacities as prosecutors, even including
malicious prosecution unsupported by probable cause);
Doermer v. Callen, 847 F.3d 522, 530 (7th Cir. 2017) (prosecutors
and officials who fill quasi-judicial and quasi-prosecutorial
roles are entitled to absolute immunity from damages stemming
from many of their official acts, no matter how erroneous
or harmful). Probation and parole officials are entitled to
absolute immunity “for their activities that are analogous to
those performed by judges.” Dawson, 419 F.3d at 662; Wilson v.
Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996). “These include, for
example, acts associated with the decision to grant, revoke, or
deny parole, or the signing of an arrest warrant.” Dawson,
419 F.3d at 662. See also Smith v. Gomez, 550 F.3d 613, 619 (7th
Cir. 2008) (parole officer and supervisor entitled to absolute
immunity for placing a “parole hold” on plaintiff); Walrath v.
United States, 35 F.3d 277, 281 (7th Cir. 1994) (parole board
members are absolutely immune from suit for their decision to
grant, deny, or revoke parole); Thompson v. Duke, 882 F.2d 1180,
1184–85 (7th Cir. 1989) (parole board members are entitled to
absolute immunity not only for the actual decision to revoke
parole but also for activities that are part and parcel of the
decision process, including scheduling a hearing); Hamilton v.
Daley, 777 F.2d 1207, 1213 (7th Cir. 1985) (probation revocation
is a criminal proceeding, and prosecutors are absolutely
immune from suit for acts taken in initiating a probation
26 Nos. 16-3927 & 16-4037
revocation proceeding). Stanton enjoys absolute immunity for
the conduct alleged in both Counts I and II.
Similarly, Tobey accuses Chibucos of demanding that he
sign a behavioral agreement, filing memoranda with Stanton
requesting the revocation of his probation, and continuing to
warn him of the consequences of his failures to follow courtordered
conditions of probation. Asking a probationer to
adhere to conditions of probation, warning him of the consequences
if he fails to do so, and filing requests for revocation
are not violations of section 1983; they are the job description
for the often thankless job of probation officer. Moreover, in
filing the memoranda requesting that the state’s attorney begin
proceedings to revoke probation, Chibucos was engaged in a
quasi-judicial function for which she is protected by absolute
immunity. Dawson, 419 F.3d at 662; Smith, 550 F.3d at 619;
Walrath, 35 F.3d at 281. This absolute immunity extends to all
of Chibucos’s conduct in Count I and some of the conduct
alleged in Count II.
Absolute immunity does not, however, extend to day-today
duties in the supervision of a parolee or investigating and
gathering evidence for revocation. Dawson, 419 F.3d at 662. See
also Archer, 870 F.3d at 612–13 (absolute immunity does not
shield prosecutors from liability for actions that are not
intimately associated with the judicial phase of the criminal
process, nor does it apply when they are performing
non-prosecutorial actions, such as administrative and investigatory
activities). Count II asserts that Chibucos continued to
repeatedly warn Tobey that he would be returned to Florida if
he visited his granddaughter without approval, and that
Chibucos repeatedly refused to allow those visits, at least in
Nos. 16-3927 & 16-4037 27
part claiming that she lacked jurisdiction to approve the visits.
We again look to the undisputed Florida court orders setting
forth the conditions of Tobey’s probation. Chibucos was
correct that Tobey’s probation could and likely would be
revoked if he visited his minor granddaughter without
following the terms set forth in the Illinois and Florida court
orders. And Chibucos, in fact, had no authority personally to
grant or deny visits under the terms of the Florida probation
orders. Those orders require approval from a Florida court
before Tobey may have a supervised visit with a minor, and
only after certain conditions are met. These particular allegations
in Count II do nothing more than accuse Chibucos of
performing her duties as a probation officer pursuant to a
court order, and therefore this part of Count II does not state
a claim under section 1983.
Moreover, federal courts are required by Younger v. Harris,
401 U.S. 37 (1971), to abstain from taking jurisdiction over
federal constitutional claims that involve or call into question
ongoing state proceedings. Middlesex County Ethics Committee
v. Garden State Bar Association, 457 U.S. 423, 431 (1982); Village
of DePue, Ill. v. Exxon Mobil Corp., 537 F.3d 775, 783 (7th Cir.
2008). Tobey’s Florida probation is ongoing and extends at
least to 2020 and possibly to 2032. To the extent that Tobey asks
this court to take action against Chibucos, an Illinois probation
officer supervising a Florida probationer under the interstate
compact, for her continuing acts of supervision, Tobey is asking
this court to interfere with an ongoing state matter. Sarlund v.
Anderson, 205 F.3d 973, 975 (7th Cir. 2000) (section 1983 claims
may be barred by Younger abstention when a plaintiff seeks to
derail an ongoing probation revocation proceeding). As the
28 Nos. 16-3927 & 16-4037
district court noted, if Tobey has a problem with how his
probation officer is treating him, he may easily lodge his
objections in the state court overseeing his probation. Federal
courts generally may not intervene in ongoing state criminal
proceedings.
Finally, Tobey complains that he was coerced into signing
a behavioral agreement, was ordered to give up internet access
on his phone and is subject to continued refusals to visit his
granddaughter. Based on the undisputed Florida and Illinois
probation orders, these are all court-ordered conditions of
Tobey’s probation. If Tobey is seeking release from the
conditions of probation imposed on him by the courts, a
petition for a writ of habeas corpus is the appropriate vehicle for
seeking relief, not a lawsuit for damages under section 1983.
Williams v. Wisconsin, 336 F.3d 576, 579–80 (7th Cir. 2003). The
restrictions that make up probation are considered a type of
confinement rather than conditions of confinement. Williams,
336 F.3d at 579; Drollinger v. Milligan, 552 F.2d 1220, 1224–25
(7th Cir. 1977). The restrictions that Tobey challenges define
the perimeters of his confinement. If he wishes to challenge the
imposition of these conditions, he must do so in a habeas
proceeding after exhausting his state court remedies.
In short, Count I is barred by the statute of limitations.
Counts I and II are also barred by claims of immunity. The
continuing conduct claims in Count II also fail to state a claim,
and in any case are subject to Younger abstention. Having
determined that Counts I and II may not proceed, it is easy to
affirm the dismissal of Count III, which seeks liability for those
persons supervising Stanton and Chibucos when they committed
the acts alleged in the first two counts. Because Count III
Nos. 16-3927 & 16-4037 29
depends entirely on the liability of Stanton and Chibucos
under Counts I and II, Count III must necessarily be dismissed.
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (jury
verdict in favor of defendant police officer for purported
constitutional injury to plaintiff was also conclusive as to city
and police board where they were sued on a theory that they
were liable for police officer’s conduct); Hart v. Mannina,
798 F.3d 578, 596 (7th Cir. 2015) (where court properly dismissed
section 1983 claims against police officers, claims
against supervisors also fail); Hamilton, 777 F.2d at 1213 n.5
(because absolute immunity protects prosecutorial decisions,
supervision of the prosecutors who make these decisions is
similarly immune).
The district court declined to exercise supplemental
jurisdiction over the remaining state law claims for malicious
prosecution, intentional infliction of emotional distress and
conspiracy, pled in Counts IV, V and VI, respectively. Generally,
we review for abuse of discretion a district court's
decision not to exercise supplemental jurisdiction over a
plaintiff’s state-law claims. Hagan v. Quinn, 867 F.3d 816, 820
(7th Cir. 2017). Tobey does not argue that the district court
mischaracterized these claims as being raised under state
rather than federal law, and has not specifically challenged the
district court’s decision not to exercise supplemental jurisdiction.
We may therefore summarily affirm. His arguments
regarding Counts IV, V, and VI are perfunctory and undeveloped
and are thus waived. Sutterfield v. City of Milwaukee,
751 F.3d 542, 553 (7th Cir. 2014). We affirm the judgment
dismissing the complaint in its entirety.
30 Nos. 16-3927 & 16-4037
IV.
The defendants moved for sanctions in the district court
under Federal Rule of Civil Procedure 11. The district court
declined to grant them, and we review that decision for abuse
of discretion. Northern Illinois Telecom, Inc. v. PNC Bank, N.A.,
850 F.3d 880, 883 (7th Cir. 2017); Cooney v. Casady, 735 F.3d 514,
518 (7th Cir. 2013). The defendants asserted that there were
obvious statute-of-limitations problems with the key claims,
that publically available court records contradict most of
Tobey’s key factual assertions, and that his attorneys failed to
conduct a reasonable investigation prior to filing the action.
Although a court must credit the well-pled allegations of the
complaint when deciding a motion under Rule 12(b)(6), we are
not so confined when considering a motion for sanctions. The
district court was (and this court is) free to consider the public
court records cited by the defendants at this stage, and we now
turn to the much more likely sequence of events that led to this
suit.
Court dockets in Illinois and Florida show that an extradition
action was initiated against Tobey in Lake County, Illinois,
in April 2013. The process began when Chibucos shared
Tobey’s probation violations with her Florida counterpart,
Andrew Lanzing.8 He, in turn, filed a sworn and notarized
8 A receiving state is required to notify the sending state of an act or pattern
of behavior requiring retaking within thirty calendar days of discovery by
submitting a violation report. See Rule 4.109 of the ICAOS Rules, which can
be found under the “Legal” tab at https://www.interstatecompact.org/
midwest/illinois (last visited May 11, 2018). The Rules have the force and
(continued...)
Nos. 16-3927 & 16-4037 31
“Affidavit Violation of Probation” with the Circuit Court in
and for Manatee County, Florida, leading to a Florida judge
issuing an April 18, 2013 warrant for Tobey’s arrest. On the
same day that warrant was issued, Stanton filed a Petition for
Revocation in the Circuit Court of Lake County, Illinois. But
before the Illinois Petition could be heard, Tobey had been
arrested at the request of Florida authorities on April 22 (not
on April 15 as he alleged, and as we were obligated to credit on
the Rule 12(b)(6) motion), and the process of removing him to
Florida had begun. The certified court records include the
Florida arrest warrant, and references to court appearances by
Tobey and his lawyer in Illinois on April 23, within twentyfour
hours of his arrest. Florida dockets show that he was
represented by a different lawyer in Florida proceedings and
that she waived her client’s personal appearance at arraignment
and all pre-trial hearings. The records also include
Tobey’s signature on his “Offender’s Request for Interstate
Compact Transfer,” signed January 9, 2012. In that document,
he agreed to return to the sending state (in this case, Florida)
when ordered to do so by either the sending or receiving state
(Illinois), agreed not to resist any effort to return him to the
sending state, and waived any constitutional right he had to
extradition.9
8 (...continued)
effect of statutory law and are binding in the compacting states. Id. Illinois
is a compacting state. 45 ILCS 170/5.
9 See Rule 3.109 of the ICAOS Rules. An ICAOS Advisory Opinion
interpreting that Rule holds that, in seeking a compact transfer of supervi-
(continued...)
32 Nos. 16-3927 & 16-4037
The records that Tobey himself attached to his complaint
reveal that a surveillance officer discovered in March 2013 that
Tobey had internet access on his cell phone in violation of the
conditions of probation of both Illinois and Florida. When
directed to disconnect that internet access, Tobey declined,
saying that his attorney told him that he did not have to
comply. By Tobey’s own admissions in his complaint, after
being told that he had failed the sexual history polygraph
multiple times, he refused to sign the proposed behavioral
agreement with his therapists unless his attorney approved it.
In other words, Tobey’s own complaint supplies extensive
facts supporting the lawful revocation of his probation.
Chibucos was not only allowed to share this information with
her Florida counterpart; she was required by the interstate
compact to do so. Once Tobey was removed to Florida for
revocation proceedings in that state, Chibucos and Stanton had
no control over the Florida proceedings (or lack of proceedings,
as Tobey has claimed).
Tobey’s response to much of this in the district court and on
appeal has been to double down on the claims he made in his
verified complaint,10 namely, that he was arrested a week
9 (...continued)
sion, an offender accepts that a sending state can retake him or her at any
time and that formal extradition hearings would not be required.
10 Although the Federal Rules of Civil Procedure do not require it in this
instance, Tobey filed a verified complaint. See Fed. R. Civ. P. 11 (“Unless a
rule or statute specifically states otherwise, a pleading need not be verified
or accompanied by an affidavit.”). But see also Fed. R. Civ. P. 23.1(b)
(continued...)
Nos. 16-3927 & 16-4037 33
before court documents indicate and that court records are
mistaken or falsified.11 He corroborates this claim with a
10 (...continued)
(requiring a verified complaint for shareholder derivative suits); Fed. R. Civ.
P. 65(b)(1) (requiring a verified complaint when requesting a temporary
restraining order without notice to the adverse party). Tobey attached a
signed “Verification” statement to the complaint “declar[ing] under penalty
of perjury under the laws of the United States of America that the facts
stated in the foregoing complaint are true and correct to be [sic] the best of
my knowledge, information, and belief.” R. 1-1, at 27. See 28 U.S.C. § 1746
(setting forth the proper form for unsworn declarations under penalty of
perjury). “[A] verified complaint is not just a pleading; it is also the
equivalent of an affidavit for purposes of summary judgment, because it
contains factual allegations that if included in an affidavit or deposition
would be considered evidence, and not merely assertion.” Beal v. Beller,
847 F.3d 897, 901 (7th Cir. 2017). Federal Rule 11 requires that a pleading be
signed by an attorney of record or by a party personally if the party is
unrepresented. Tobey’s complaint is signed by one of his attorneys, who
thereby certified to the court that, among other things, “to the best of [his]
knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances … the factual contentions have evidentiary
support or, if specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or discovery[.]”
Fed. R. Civ. P. 11.
11 In his briefs and at oral argument, Tobey repeatedly asserted that a
report from his sex offender therapist that he attached to his complaint
contradicts claims by the defendants and demonstrates that Tobey was
compliant with the terms of his probation. But that report is dated June 22,
2014, more than a year after Tobey was extradited to Florida, and it has little
bearing on whether he was compliant prior to his extradition. In fact, it
reveals that he failed three polygraph exams prior to his extradition, failed
an additional polygraph after the extradition, and was continuing to deny
the “use of child pornography.” The therapist ultimately recommended an
(continued...)
34 Nos. 16-3927 & 16-4037
calendar entry he had for meeting Chibucos on April 15, and
asserts that his criminal defense lawyer, Gregory Nikitas, also
had a calendar entry to meet with him that same day, ostensibly
to review the behavioral agreement prior to meeting with
Chibucos. Nikitas was “unavailable” and Tobey went to the
meeting with Chibucos where he was arrested, beginning his
odyssey to Florida. He continues to assert that he was never
brought before a judge at any time in this process and that
unspecified documents do not accurately reflect what happened
to him. He also cites the order of the Florida court
(attached to his complaint) that eventually resulted in his
return to Illinois as evidence that he was wrongfully removed
to Florida.
That document, titled “Order Dismissing VOP Warrant,”
does very little to support Tobey’s version of events. It reveals
in its very title that there was a Florida warrant for Tobey’s
arrest, a fact that he continues to deny on appeal. The Order
notes, consistent with the defendants’ version of events, that
Tobey was on probation in both Illinois and Florida, that he
was taken into custody on April 22, 2013 for violating the terms
of his probation, that violating Illinois probation triggered a
probation violation warrant to be issued in Florida, and that
before the Illinois case could be heard, Tobey was “prematurely”
transferred to Florida. The Order also observed that the
Florida court had ordered Tobey to be returned to Illinois in
May 2013 but that procedural issues complicated his return.
Because the acts forming the violation of probation occurred in
11 (...continued)
additional six months of sex offender services.
Nos. 16-3927 & 16-4037 35
Illinois, Florida elected to have the matter first resolved in
Illinois, after which the Florida state’s attorney planned to
revisit the case if necessary.
It appears in part that some of the confusion for Tobey and
his civil attorneys regarding the extradition process was caused
by the use in Illinois of a separate docket number for extradition
proceedings. That is, when the lawyers checked the docket
for Tobey’s criminal case, they did not find any documents
related to his extradition. But the defendants brought the
extradition docket to their attention and still Tobey’s civil
lawyers did not change their position. The district court
nevertheless concluded that the public records of Tobey’s court
proceedings were not sufficient to show that Tobey or his
counsel lacked a good faith basis in pursuing the claims
asserted. The court noted that Tobey cited additional evidence
on which his attorneys relied in filing the suit. A review of
Tobey’s opposition to the motion for sanctions shows that
Tobey planned to present a variety of “proofs” that he was
arrested on April 15 and transported to Florida on April 21: a
series of contacts with his Illinois criminal defense attorney
Gregory Nikitas by Tobey’s family between April 15 and April
21; an arrangement by Tobey’s son to pick up his car on April
15; records of Tobey’s collect calls from the Lake County jail
from April 15 to April 21; and the absence of transcripts of
court proceedings at the purported extradition hearing on
April 23, among other things. Citing this promised (but not yet
supplied to the district court or this court) evidence, the district
court found that the defendants failed to demonstrate that
Tobey’s conduct or that of his attorneys rose to the level of a
Rule 11 violation.
36 Nos. 16-3927 & 16-4037
The defendants, with the full force of the certified public
record behind them, are understandably disappointed with the
district court’s decision. After all, Tobey’s factual claims
amount to a massive conspiracy against him, perpetrated by
his probation officer, polygraph examiner, states’ attorneys,
judges, docket clerks and court personnel in Illinois and
Florida (not to mention sheriff’s deputies and a prison transport
company, among others). What else could explain the
enormous paper trail that contradicts Tobey’s claims that he
was arrested on April 15 without cause and without process of
law and then kidnapped and transported to Florida? Granted,
the district court’s one-page order rejecting sanctions is thin,
but the court cited the correct standard for deciding the
question and provided a sufficient explanation to allow for
meaningful appellate review. See Independent Lift Truck Builders
Union v. NACCO Materials Handling Group, Inc., 202 F.3d 965,
969 (7th Cir. 2000). We uphold any exercise of the court’s
discretion that could be considered reasonable, even if we
might have resolved the question differently. Yeoman v. Pollard,
875 F.3d 832, 837–38 (7th Cir. 2017). It was not unreasonable at
that stage of the proceedings for the court to conclude that
there appeared to be evidence on both sides and that the claims
were therefore not brought in bad faith, and we affirm the
judgment.
On appeal, however, it is more difficult to understand the
continued pursuit of this case by Tobey and his lawyers.
Tobey’s lawyers are now aware that a vast paper trail, including
certified court records, contradicts their client’s claims.
They are also aware that the extradition proceedings occurred
under a different case number. That extradition record inNos.
16-3927 & 16-4037 37
cludes an appearance signed by Nikitas on April 23, and
docket entries indicating that Tobey and his lawyer appeared
in the Lake County court on extradition proceedings on April
23 and April 26. Tobey’s civil lawyers have had plenty of time
to investigate whether the promised evidence supporting
Tobey’s story actually exists, whether there are records of
collect calls from the Lake County jail between April 15 and
April 21, whether Tobey’s criminal defense lawyer can back up
his story, and whether his family is willing to aver that they
communicated with counsel and retrieved Tobey’s car between
April 15 and April 21. We pressed Tobey’s attorneys at oral
argument for evidence that Nikitas was not in court with
Tobey in Illinois after he was taken into custody in Illinois.
They supplied, in a post-argument letter, an exchange of text
messages between Tobey and Nikitas on July 5, August 2, and
August 3, 2016, three years after the events. Tobey’s lawyer
confirmed that he had a calendar entry to meet with Tobey at
11 a.m. on May 15 and to meet with Chibucos at 1 p.m. that
same day. In response to a text regarding whether Nikitas
recalled being in court with Tobey before Judge Collins (the
judge who presided over the extradition proceeding) on April
23, 2013, Nikitas responded, “Don’t think so. That is not on the
clerk’s computer.” Nikitas appears to have made the same
mistake as Tobey’s counsel here, failing to check the separate
extradition docket. It might have been reasonable to rely on
those texts when Tobey’s lawyers in this civil case were
unaware of the existence of the extradition docket showing
copious evidence to the contrary. That reliance is no longer
warranted.
38 Nos. 16-3927 & 16-4037
It is time for Tobey and his lawyers to demonstrate that
there was a good-faith factual and legal basis for putting the
defendants and the courts to the trouble and expense of sorting
out Tobey’s legally complex and factually dubious claims on
appeal. We therefore issue a rule to show cause why Tobey
and his lawyers should not be sanctioned for filing a frivolous
appeal under Federal Rule of Appellate Procedure 38. Salata v.
Weyerhaeuser Co., 757 F.3d 695, 701 (7th Cir. 2014) (in order to
impose sanctions under Rule 38, we must determine both that
an appeal is frivolous and that sanctions are appropriate). In
response, Tobey’s lawyers should detail all steps they took to
investigate Tobey’s factual assertions, especially after the
obvious problems with his story had been brought to their
attention by the defendants, and especially before they filed
this appeal. They should also address why they believed that
absolute immunity did not shield Stanton in whole and
Chibucos in part.

Outcome: AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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