TOM GEDAMINSAS v. THE STATE OF ILLINOIS (2003)

ORDER ON SECOND MOTION TO DISMISS

This malicious prosecution claim against the Respondent's Department of Public Aid (IDPA) and one of its employees, Richard Falen, is back before us on the Claimant's amended complaint and the Respondent's second motion to dismiss.

The individual respondent.

In our prior order, we dismissed the claim as to the individual named respondent, Richard Falen, for lack of jurisdiction over individuals, with prejudice. (Order of October 7, 2002.) Claimant has again named Mr. Falen in his amended complaint. There is no basis nor leave to do so. This claim will be dismissed as to Mr. Falen, again, and again with prejudice. Any further pleading that names Mr. Falen shall not be allowed.

The claim against IDPA

In Illinois, a malicious prosecution action requires allegations and proof of five elements:

1. commencement or continuation of a criminal or civil proceeding against the plaintiff by the defendant;

2. termination of the proceedings in favor of the plaintiff;

3. the absence of probable cause for such proceeding;

4. malice by the defendant; and

5. resulting damages and, in a claim based on a civil proceeding, special damages.

Ritchey v. Makson, 71 Ill. 2d 470, 376 N.E.2d 991 (1978); Friedes v. Sani-Mode Mfg. Co., 33 Ill. 2d 291, 211 N.E.2d 286 (1965); Balthazar v. Dowling, 65 Ill.App. 3d 824 (2d Dist. 1978); Berlin v. Nathan, 64 Ill.App. 3d 940, 381 N.E.2d 1367 (1st Dist. 1978); Arguden v. State of Illinois, 46 Ill.Ct.Cl. 267 (1993).

The malicious prosecution claim against the IDPA in the amended complaint, based on the erroneous initiation (by IDPA and the Claimant's ex-wife) of a child support collection action against him, suffers the same basic defects as the original complaint -- failure to allege elements two through five against IDPA -- which require little further discussion. The core allegations of the amended complaint are no different than those of the original complaint.

The amended complaint pays some attention to the fact that the damages assserted by the Claimant were caused (according to both complaints) not by the IDPA enforcement action itself, but by the circuit court's issuance of a body attachment against the claimant and his ensuing incarceration for failure to appear in that proceeding, as this court observed in our previous order.

Claimant now alleges that the Body Attachment Order ... was issued at the request of the State's Attorney (Am. Compl., par. 3) and claims, obliquely, that the petition for a rule to show cause (on which the body attachment was presumably based) was supported by a false affadivit made in the Petition (Am. Compl., par. 11). In addition, the claimant now alleges that the Petitioner and their [sic] counsel failed to inform the claimant of the court's hearing by either Certified Mail or Personal Service (ibid.). Reading the complaint liberally, claimant alleges that this failure to give notice was responsible for his failure to appear and ultimately, with the false affidavit, for the incarceration that generated his damages.

The respondent attacks the sufficiency of these allegations by pointing out that the State, the respondent here, is not liable for the errors or omissions of the State's Attorney, who was the legal counsel, citing Washington v. State's Attorney of Cook County. Washlow v. Clerk of the Circuit Court of Livingston Co., 54Ill.Ct.Cl.317 (joint op., Nos. 00 CC 2224, 94 CC 0722) (2001).

Although the respondent's point is correct as to respondeat superior liability arising from the underlying constitutional relationship and the general statutory relationship between the State and the State's Attorneys, the respondent disregards the fact that in the child support enforcement action in this claim, in Cook County at least, the State's Attorney was acting as the legal counsel -- and hence as the agent -- for the IDAP (The court notices that that relationship arises by agreement between the state, by the Attorney General, and the State's Attorney pursuant to statutory authorization [see, / 12-16, Public Aid Code; 305 ILCS 5/12-16]; that special relationship is of record here by virtue of the circuit court pleadings attached to the amended complaint.) Thus the acts and omissions of the State's Attorney, as IDPA agent, could bind the State as master under the specific principal-agent relationship that obtains in these Cook County IDPA enforcement actions.

However, despite the failure of that defense, the cryptic allegation of a false affidavit and the allegations of lack of adequate notice, even taken together, do not fill the gap in the missing allegations for claimant's malicious prosecution claim even if we consider the civil proceeding subject of that claim to be the contempt proceeding against the claimant rather than the larger enforcement action. The amended complaint, so read, still fails to allege all the elements of this tort. Most importantly for this claim, we find no allegations that suggest malice toward the claimant.

In light of this conclusion, the court need not take up the parties arguments as to the Claimant's exhaustion of alternative remedies (against the State's Attorney).

This court is sympathetic to the plight that this claimant appears to have suffered. If the allegations of his two complaints are true (as for present purposes we assume them to be), he was mistakenly caught up in the machinery of Illinois child support enforcement system and incarcerated without good cause. But in seeking redress for that claimed injustice against the IDPA, the claimant must make out a cause of action, which in two pleadings in this court he has failed to do.

If the amended complaint had alleged facts constituting malice by the IDPA or by the State's Attorney acting as IDPA's agent, or even facts that could with inferences support a finding of malice, this court would give the claimant yet another opportunity to replead to fill in the more technical elements of the claim, despite his failure in two complaints to do so even nominally. Malice is, after all, the gist of the tort of malicious prosecution.

But in the absence of any allegation of malice in the amended complaint, and in light of this Claimant's disregard of this court's prior dismissal with prejudice of the individual respondent, we will now dismiss this claim with prejudice. If the Claimant wishes to try again, he can petition for rehearing and to amend -- with an adequate proposed second amended complaint attached -- within the time provided in our Rules and seek to convince us that he has a genuine and cognizable claim for damages against the State in this matter.

Conclusion

For the foregoing reasons, respondent's motions to dismiss for failure to state a cause of action and for want of jurisdiction over the individual respondent are granted, and it is hereby ORDERED

1. The amended complaint is dismissed;

2. This claim is dismissed, with prejudice, as to all respondents.

EPSTEIN, J.