TOM GEDAMINSAS v. THE STATE OF ILLINOIS (2002)

ORDER

This malicious prosecution claim is before us on the respondent's/2-615 and/2-619 motions to dismiss.

Nature of the Claim

Claimant brings this malicious prosecution claim against the respondent and its Department of Public Aid (IDPA), as well as against Richard Falen, as an employee or agent of IDPA, alleging damages suffered due to their filing (with claimant's ex-wife) of a petition in the circuit court for issuance of a rule to show cause why the claimant, Mr. Gedaminsas, should not be held in contempt for failure to pay child support arrearages owing to Mrs. Gedaminsas, and to IDPA. Claimant alleges that that petition was knowingly false when made (Complaint f3) and lead to a body attachment issuing from that court, which lead to claimant's arrest and incarceration for 10 days. Claimant seeks $100,000 damages for his injuries, which include extreme embarrassment and getting fired from his employer of thirteen years and requiring him to hire an attorney to obtain reinstatement to his job.

The Motions to Dismiss

The respondent's three-pronged motions to dismiss, in summary, assert:

1. failure to state a cause of action for malicious prosecution, due to claimant's failure to allege facts constituting four of the five elements of that tort (termination of the instituted proceedings in favor of the claimant; want of probable cause to institute the proceedings; malice in bringing the proceeding; and special injury);

2. lack of jurisdiction of this court over the named individual respondent (Richard Falen), who was an agent of IDPA (an employee of an IDPA contractor, who signed the child support complaint within the scope of his, and his employers, agency, according to the IDPA Departmental Report);

3. failure to exhaust alternative sources of recovery under/25 of the Court of Claims Act (705 ILCS 505/25) and our Rule 60 (74 Ill.Admin.Code 790.60) by failing to pursue to exhaustion his potential remedies against the State's Attorney's office, as his circuit court lawsuit against the State's Attorney was dismissed with leave to amend, and claimant never amended nor otherwise pursued an action against the State's Attorney [or his funding county], and has not shown any exhaustion against his ex-wife (Judy Gedaminsas), who was a co-signer of the child support petition for rule to show cause in the circuit court and is thus seemingly on the same footing as the IDPA bringing the petition.

We have reviewed claimant's response.

Analysis

Two of the three grounds asserted by the respondent for dismissal require little discussion:

First, is clear that this court lacks jurisdiction over individuals -- whether they are State employees or contractors or agents -- as this court has held too many times to warrant citation; our statutory jurisdiction under/8 of the Court of Claims Act (705 ILCS 505/8) extends only to the State and its agencies. The claim against Mr. Falen will be dismissed with prejudice.

Second, it is clear that this complaint fails to allege facts that comprise a cause of action for malicious prosecution, on each of the elements asserted by the respondent. Although claimant alleges that the allegations of the petition for rule (presumably referring to the arrearage allegations at least) were knowingly false, we are troubled by the claimant's failure to allege, with any specificity, any facts that support the conclusory allegation of malice by IDPA in bringing those charges. Malice, after all, is the critical element of the tort of malicious prosecution.

However, we must add another reason for dismissing this claim and this complaint. A point is raised in the IDPA Departmental Report (but, curiously, not in the motion to dismiss) that, we believe, is terminally dispositive of the original complaint and its legal theory.

As the IDPA points out (Departmental Report, page 2, at ff9-11), the damages alleged in the complaint are alleged to result from the claimant's 10-day incarceration pursuant to order (body attachment) of the circuit court in the child support litigation. But that incarceration was not caused by the initiation of the rule to show cause by the IDPA -- which is the claimants theory as pleaded in his complaint. Instead, the arrest and incarceration resulted from the circuit court's body attachment (order dated June 8, 2000; Exhibit C to Departmental Report), which resulted from Mr. Gedaminsas failure to appear in court on June 8, 2000 as he had been ordered to do by a prior order issued by the circuit court (Exhibit B to Departmental Report; date illegible), which appears to have been directed to be served (and presumably was served) by mail.

Thus, IDPA contends, on a pure proximate causation basis, that the damages claimed by Mr. Gedaminsas were not caused by the IDPA's allegations or initiation of the rule to show cause, and could not have been proximately caused by that pleading or its contents. Instead, IDPA argues, the damages asserted in this claim resulted from the claimant's own conduct, i.e., his failure to appear on the designated court date.

We agree with the IDPA's first conclusion: on the basis of the circuit court litigation facts (the Exhibit B and C court orders) asserted here in the Departmental Report (which under our rules must be taken as prima facie evidence, see Rule 140; 74 Ill.Admin.Code 790.140), this complaint must be dismissed for want of causation of the damages asserted. We cannot reach any position on the IDPA's second conclusion: that the damages are Claimant's own fault. That conclusion is speculative. The record at this stage of proceedings, even with the factual contents of the Departmental Report, is far too meager and leaves numerous factual possibilities open, which cannot now be resolved.

Claimant's current theory is defective as a pleading matter and is precluded by the later events in the circuit court proceedings on the facts disclosed by the current record. If there is something more, or different, that supports a liability claim, the Claimant must allege it in an amended complaint. The Claimant is plainly is trying to allege that something was done tortiously, and that he should not have been incarcerated. That much is clear. Why and how that incarceration can be ascribed to wrongful conduct by the IDPA is a matter that must be pleaded in an ensuing complaint, if Claimant is to maintain this theory of his claim.1 We will allow him to file an amended complaint to do so, if he can, or to plead a different theory of liability.

In light of our disposition of the claim, as well as the parallel questions arising as to the existence of a genuine claim for malicious prosecution against Claimant's ex-wife, it is not necessary now to address the exhaustion issue, which may be renewed later if an amended complaint is filed.

Conclusion

For the foregoing reasons, respondent's motions to dismiss are granted in part and denied in part, and it is hereby ORDERED:

1. The complaint is stricken, and this claim is dismissed without prejudice;

2. This claim is dismissed as to Richard Falen, with prejudice;

3. Claimant is granted leave to file an amended complaint, consistent with this order, not later than 35 days after the date of this order;

4. Respondent's motion to dismiss for failure to exhaust alternative sources of recovery is denied as moot, without prejudice.

EPSTEIN, J.