OPINION AND ORDER
ROBERT L. MILLER, Jr., Chief District Judge.
In his amended complaint, pro se plaintiff Mark Price has alleged that he was the victim of a conspiracy by three governmental employees of St. Joseph County (Michael Dvorak, Joseph Nagy, and Tim Corbett) and several non-governmental defendants (Robert Urbankski, Natakit Buraprteep, Robert McElwee, Key Bank National Association, Christopher Riley, and Mitchell Heppenheimer) in violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and the Racketeer Influence and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962. All of the defendants, with the exception of Mr. Urbanski and Mr. Buraprateep, have moved to dismiss Mr. Price's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Mr. Urbanski and Mr. Buraprateep separately moved for summary judgment on the claims asserted against them. For the reasons set forth below, the court grants those motions.
The following facts are based upon Mr. Price's allegations. They are recited only for purposes of resolving this motion and are taken in the light most favorable to him as legally possible. At all times relevant to his complaint, Mr. Price was the principal of construction contractor Thermotech Services. In 2005, Thermotech entered into a contract with Nat Corp. to provide construction services associated with the remodeling of a South Bend restaurant. Key Bank financed the project. In early 2006, Key Bank representative Bob McElwee notified Mr. Price that Key Bank would no longer be releasing construction funds unless Nat Corp. could provide proof of additional funding. In March 2006, Nat Corp. and Thermotech entered into an addendum of their 2005 contract so that Key Bank would release additional construction funds.
The project continued to experience funding issues, and Nat Corp. notified Mr. Price that it was seeking additional investors. On May 10, 2006, Mr. Price attended a meeting where he was introduced to the owners of Target Leasing, John Martell and Robert Urbanski. Mitchell Heppenheimer, the attorney for Target Leasing, Mr. McElwee, and Key Bank attorney Christopher Riley. At this meeting, Natakit Buraprateep, on behalf of Nat Corp., and Mr. McElwee, on behalf of Key Bank, told Mr. Price that the meeting's purpose was to have Mr. Price answer the potential investors' questions about construction and for Mr. McElwee to answer any questions in regards to financing. Mr. Price didn't attend the second half of the meeting related to financing.
After the meeting, on May 23, Mr. Urbanski presented a release to Mr. Price that cleared all previous agreements in place between Nat Corp. and Thermotech and indicated that Key Bank would provide one additional release to finalize the transaction with Target Leasing. Mr. Price signed this additional release on June 5, and Mr. Urbanski took over management of the project's day to day operations.
In mid-June, a dispute arose between Mr. Urbanski, Mr. Price, and Mr. Buraprateep about building materials used on the job site. According to Mr. Price, Mr. Urbanski asked him to provide additional materials that he believed were purchased by Target Leasing at the time of closing. Mr. Price disagreed, and Mr. Urbanski offered to provide a deposit for the materials, which Mr. Price claims that he never received. Mr. Price says that Mr. Urbanski directed materials to be sent to the job site and charged them to Mr. Price's account without his permission. In response, Mr. Urbanski stated that Mr. Price was paid before Target Leasing purchased the project and that the releases signed before the closing cleared any commitments to Mr. Price. In early July, Mr. Urbanski fired Mr. Price from the project.
According to Mr. Price, on July 11, Mr. Urbanski insisted that Mr. Price owed additional tile and threatened to have him arrested for theft of materials from the project "because he had friends in the prosecutor's office." Amended Complaint at ¶ 35. Mr. Price further claims that Mr. Urbanski threatened not to pay the suppliers as the releases provided. On this same day, Mr. Price discovered that he was still listed as the contractor of record and that the project's ownership hadn't changed from Nat Corp. to Target Leasing, despite the alleged representations by Mr. McElwee, Mr. Riley, Mr. Urbanski, and Mr. Buraprateep. Mr. Price cancelled his building permit and filed a mechanic's lien against the project.
Two days later, on July 13, Officer Tim Corbett, a police commander with the St. Joseph County Prosecutor's Office, County Metro Homicide Unit, visited Mr. Price at his father's home, where Mr. Price was doing some construction work. Officer Corbett presented himself at the front door of the home with badge and gun in view, and Mr. Price's father allowed him to enter. According to Mr. Price, Officer Corbett told him that he needed to comply with Mr. Urbanski's demands, or he would go to jail. Mr. Price asked Officer Corbett for information about Mr. Urbanski's demands, but Officer Corbett conveyed that he didn't know anything about the details of the matter and would return with a list of demands from Mr. Urbanski.
Mr. Price notified the South Bend Police Department about Officer Corbett's visit and learned that Corbett was a commander of the homicide unit, not a city police officer. On July 15, Mr. Price went to the St. Joseph County Sheriff's office to communicate with Officer Corbett and was told that Officer Corbett would visit him the next Monday. Mr. Price claims that he was frightened and tried to file a complaint against Officer Corbett with the Sheriff's office, but he was told that any complaints needed to be filed with the prosecutor's office. Mr. Price says that he was intimidated to go to the prosecutor's office because of his previous conversations with Officer Corbett, so Chief John Botich with the Sheriff's office offered to deliver a complaint on Mr. Price's behalf. Mr. Price met with Chief Botich again on July 18 and provided him with a complaint to deliver to the prosecutor's office.
A few days later, Nancy Sulok, a reporter with the South Bend Tribune, contacted Mr. Price about Officer Corbett's visit. On July 20, Mr. Price read an article published by Ms. Sulok in the Tribune, which reported that Mr. Urbanski believed that Mr. Price had stolen materials from him. Mr. Urbanski stated that he contacted Joseph Nagy, a friend in the prosecutor's office, who suggested that he call Tim Corbett. Ms. Sulok's later articles stated that St. Joseph County Prosecutor Michael Dvorak investigated the matter by asking for written reports from both Mr. Nagy and Officer Corbett and issued one-day suspensions to both for failing to follow proper procedures.
Following the publication of Ms. Sulok's initial article, Mr. Buraprateep filed an incident report for larceny against Mr. Price on July 21, and on July 27, Mr. Buraprateep filed a civil complaint for replevin in the St. Joseph County Superior Court. Both claims allege that Mr. Price took materials from the project site. Key Bank intervened in the replevin suit, and Mr. Buraprateep gave deposition testimony regarding the details of the May 10 meeting and the subsequent releases.
On March 6, 2007, Mr. Price made a request for access to public records about the incident with Officer Corbett and received a response from the prosecutor's office three days later. This response contained the complaint filed by Chief Botich on behalf of Mr. Price and a memorandum written by Mr. Dvorak to Ms. Sulok in response to her inquiry about the status of his investigation into the matter. The memorandum states that Mr. Dvorak "concluded that this matter was not handled in accordance with office policies." The prosecutor's office also provided Mr. Price with a copy of the disciplinary action notice that was issued to Officer Corbett as well a statement that Mr. Nagy was given verbal notice of his discipline. After reviewing these materials, Mr. Price sent a certified letter to Mr. Dvorak asking that "he intervene in the matter" because Mr. Price believed that his civil rights had been violated. Mr. Dvorak never responded to Mr. Price's letter.
Mr. Price sent letters to the members of the St. Joseph County Council and the St. Joseph County Commissioners alleging that: 1) Mr. Urbanski made false statements to enlist the help of the prosecutor's office; 2) Officer Corbett tried to extort materials from him; 3) Mr. Dvorak refused to investigate his accusations and covered up Officer Corbett's actions by describing the incident as a violation of office policy; 4) Mr. Price attempted to file charges against Officer Corbett but neither the South Bend Police Department nor the St. Joseph County Police investigated the issue; and 5) the prosecutor's office failed to contact him regarding his complaint.
Mr. Price's amended complaint recounts these same allegations, asserting seven causes of action against both the governmental defendants, Mr. Dvorak, Mr. Nagy, and Officer Corbett, as well as against the non-governmental defendants, Mr. Urbanski, Mr. Buraprateep, Mr. McElwee, Mr. Riley, Mr. Heppenheimer, and Key Bank. Specifically, Mr. Price claims that the defendants violated his constitutional and statutory rights in connection with the construction dispute and the prosecutor's office's involvement in the dispute. All of the defendants, with the exception of Mr. Urbanski and Mr. Burprateep, have moved to dismiss Mr. Price's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and the remaining two defendants have moved the court for summary judgment on the claims against them.
MOTIONS TO DISMISS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the complaint's sufficiency, not its underlying merits. See
A complaint suffices if any facts consistent with its allegations could be established by affidavit or testimony at a trial.
(A) Section 1983 Claims
In his amended complaint, Mr. Price alleges five causes of action under 42 U.S.C. § 1983. To maintain a claim under § 1983, a plaintiff must demonstrate that a government official, acting under color of state law, violated his constitutionally protected rights.
(i) Claims against Mr. Dvorak
Mr. Price asserts four causes of action under § 1983 against Mr. Dvorak in both his individual capacity and his official capacity as county prosecutor for St. Joseph County, Indiana. In Count I, Mr. Price claims that Mr. Dvorak violated his right to due process as guaranteed by the Fourteenth Amendment when he told South Bend Tribune reporter Nancy Sulok that he had "fully reviewed" the incident involving Mr. Nagy and Officer Corbett, but didn't provide Mr. Price the opportunity to make a statement. Count IV asserts that Mr. Dvorak's refusal to intervene or "acknowledge repeated attempts by plaintiff to question what occurred" violated Mr. Price's First Amendment right to challenge authority, and Count V alleges a First Amendment claim against Mr. Dvorak for making misleading statements to the press and preventing Mr. Price from publicly criticizing the prosecutor's office. Finally, Count VI states a claim against Mr. Dvorak for violation of Mr. Price's right to equal protection as guaranteed by the Fourteenth Amendment.
In his motion to dismiss Mr. Price's amended complaint, Mr. Dvorak argues that the claims against him should be dismissed because, as a prosecutor, he enjoys absolute immunity from liability under § 1983. While prosecutors enjoy absolute immunity for core prosecutorial functions such as initiating criminal proceedings, absolute immunity is limited to acts taken within the scope of prosecutorial duties. See
Mr. Dvorak still may be entitled to qualified immunity, which shields government officers performing discretionary functions from civil litigation.
Due Process Claim. In Count I of the amended complaint, Mr. Price argues that Mr. Dvorak reviewed the incident involving Mr. Nagy and Officer Corbett but refused to intervene on Mr. Price's behalf and didn't allow him the opportunity to give a statement, purportedly violating his right to due process as provided by the Fourteenth Amendment. Even when taken in the light most favorable to Mr. Price, these facts don't form the basis of a civil rights action. The Due Process Clause of the Fourteenth Amendment forbids a state from depriving any person of life, liberty, or property without due process of law.
Mr. Price's amended complaint doesn't suggest that Mr. Dvorak's refusal to intervene on his behalf deprived him any cognizable property or liberty interest. For example, Mr. Price hasn't suggested any reason to think that Mr. Dvorak's failure to obtain a statement from him regarding the Corbett incident in any way affected his previously filed mechanic's lien, his ability to defend himself in the related state court actions, his filing of a complaint with the prosecutor's office, or his ability to pursue the present case. Nor has Mr. Price suggested a deprivation of any benefit to which he was entitled to receive. Therefore, Mr. Price hasn't adequately alleged a viable due process claim against Mr. Dvorak.
First Amendment Claims. In Count IV of the amended complaint, Mr. Price contends that Mr. Dvorak's refusal to acknowledge his attempts to raise questions about the Corbett incident violated his First Amendment right to challenge authority. In Count V, Mr. Price maintains that Mr. Dvorak's allegedly misleading statements to the press prevented him from publicly presenting information that would have been critical of the prosecutor's office in violation of his First Amendment right to free speech. The allegation that Mr. Dvorak gave inaccurate information to the press doesn't implicate any liberty or property interests sufficient to constitute a violation of his constitutional rights. See generally
Equal Protection Claim. Finally, in Count VI of the amended complaint, Mr. Price claims that Mr. Dvorak discriminated against him in violation of the Equal Protection Clause of the Fourteenth Amendment by giving preferential treatment to "some citizens" over others. To establish a prima facie case of discrimination under the equal protection clause, Mr. Price is required to show that he is a member of a protected class, that he is otherwise similarly situated to members of the unprotected class, and that he was treated differently from members of the unprotected class.
Where "the power of government is brought to bear on a harmless individual merely because a powerful state or local official harbors a malignant animosity toward him, the individual ought to have a remedy in federal court."
Mr. Price contends that Mr. Dvorak singled him out by selectively enforcing the policies of the prosecutor's office to his detriment. To prove an equal protection claim based on a "class of one" theory, Mr. Price must also prove that Mr. Dvorak acted with discriminatory purpose to treat him differently than other groups of similarly situated individuals. See
Because Mr. Price hasn't adequately alleged facts which form the basis of a constitutional violation of his rights to due process, free speech, or equal protection, Mr. Dvorak is entitled to qualified immunity on Mr. Price's claims against him. As such, the court dismisses Counts I, IV, V, and VI of the amended complaint as against Mr. Dvorak.
(ii) Conspiracy claims against Mr. Urbanski, Mr. Nagy, and Officer Corbett
Count I of Mr. Price's amended complaint alleges that Mr. Nagy, Officer Corbett, and Mr. Urbanski conspired against him "to prevent due process of plaintiff to seek redress of lien and contract dispute in court" in violation of his right to due process as guaranteed by the Fourteenth Amendment. Count III asserts a claim against the same defendants for participating in a scheme to prevent Mr. Price from seeking redress in a court of law in retaliation for "the filing of a lien and for removing his building permits after he was fired" in violation of his First Amendment rights. The governmental defendants move to dismiss these claims, arguing that Mr. Price hasn't stated a valid conspiracy claim under § 1983.
"To establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and a private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights; and (2) those individual(s) were willful participant(s) in joint activity with the State or its agents."
Although Mr. Price makes several allegations about the defendant's purported conspiracy, he doesn't provide any factual support indicating the existence of an agreement between the county officials and private actor Urbanksi or any details as to what, when, why, or how the supposed agreement deprived him of his constitutional rights. See
In addition to the lack of specificity in the conspiracy allegations, Mr. Price hasn't shown that he suffered an injury for which the Constitution provides a remedy. State actors are prohibited from impending a party's access to the courts; to state a claim, however, Mr. Price must allege that "state action hindered his .. . efforts to pursue a nonfrivolous legal claim and that consequently [he] suffered some actual concrete injury." See
Mr. Price alleges no facts indicating that his mechanic's lien was affected or that he wasn't able to properly defend the replevin action in state court. Mr. Price doesn't suggest that he was prevented in any way from pursuing a contract dispute regarding the ownership of the tile and other materials at issue. Although Mr. Price concludes that Officer Corbett restrained his freedom of movement, he doesn't suggest that Officer Corbett arrested, searched, or detained him in any way. Further, Mr. Price was able to file his complaint with the prosecutor's office, and Mr. Dvorak reviewed that complaint, as demonstrated by the issuance of discipline against Officer Corbett and Mr. Nagy. Mr. Price hasn't sufficiently alleged that the defendants hindered the pursuance of his claims or that he actually suffered injury as a result of their actions. The court dismisses Counts I and III as against Mr. Urbanski, Mr. Nagy, and Officer Corbett.
(B) Section 1985 Claim
Count II of the amended complaint seeks to state a claim against Mr. Urbanski, Mr. Nagy, and Officer Corbett under 42 U.S.C. § 1985(3) for "employ[ing] a scheme to prevent plaintiff's right to seek redress in his claim." Section 1985(3) provides in relevant part: "[i]f two or more persons in any state or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1983(3). To maintain a claim under § 1985(3), a plaintiff must allege: "(1) the existence of a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an injury to person or property or a deprivation of a right or privilege granted to U.S. citizens."
As with his equal protection claim against Mr. Dvorak, Mr. Price hasn't alleged that he is a member a protected class. The amended complaint contains no allegations as to Mr. Price's race, sex, age, heritage, religion, or political affiliation. Even if Mr. Price could suggest a class-based discriminatory motive, Count II of the amended complaint doesn't allege enough facts to support a claim under § 1985(3). A § 1985 complaint must indicate the parties, the general purpose, and approximate date of the agreement to form a conspiracy so that the defendant has notice of the charges against him.
(C) RICO Claims
Count VII of the amended complaint asserts a RICO claim against Mr. Urbanski, Mr. Buraprateep, Mr. McElwee, Mr. Riley, and Mr. Heppenheimer for conspiring to "defraud plaintiff and illegally acquire property" through various predicate acts, including: defamation, invasion of privacy, intimidation, misleading conduct, extortion, theft by deception, intentional infliction of emotional distress, and cruel and unusual punishment. Mr. McElwee, Key Bank
The RICO Act prohibits various forms of infiltration of legitimate business "enterprises" involved in interstate commerce through a "pattern of racketeering activity." 18 U.S.C. § 1962. In particular, "RICO renders criminally and civilly liable `any person' who uses or invests income derived `from a pattern of racketeering activity' to acquire an interest in or to operate an enterprise engaged in interstate commerce, § 1962(a); who acquires or maintains an interest in or control of such an enterprise `through a pattern of racketeering activity," § 1962(b); who, being employed by or associated with such an enterprise, conducts or participates in the conduct of its affairs `through a pattern of racketeering activity," § 1962(c); or finally, who conspires to violate the first three subsections of § 1962, § 1962(d)."
"In order to state a viable cause of action under § 1962(c), a plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity."
(i) Pattern of racketeering activity
To satisfy the requirement of pleading a "pattern" of racketeering activity, Mr. Price must demonstrate "at a minimum, two predicate acts of racketeering." Id. at 598-599. "A predicate act must be one of the specifically identified acts of racketeering listed in 18 U.S.C. § 1961," which defines "predicate act" solely by reference to federal statute.
Mr. Price claims that Mr. Riley produced a misleading release, filed a motion to intervene in the state court replevin action but omitted relevant loan documents, and knowingly remained silent in the state court suit when he was aware that false statements were being made regarding the alleged mediation. As to Mr. Heppenheimer, Mr. Price alleges that he introduced himself as a friend and attorney at the May 10, 2006 meeting, notarized a false statement by Mr. Buraprateep, participated in characterizing the May 10 meeting as a "mediation" at Mr. Buraprateep's deposition, drafted a list of items for the state court replevin case, and "filed bogus lawsuits and misleading statements to harass" Mr. Price. Finally, Mr. Price claims that Mr. McElwee misleadingly represented to him that the property at issue was being sold to Mr. Urbanski, knowingly participated in the state court replevin suit, and misrepresented payments from Key Bank to Mr. Buraprateep. Mr. Price lists these allegations under the heading "misleading conduct," but this claim isn't identified as an act of racketeering listed in § 1961. Similarly, Mr. Price alleges a predicate act of "intentional infliction of emotional distress" against all of the RICO defendants, but this claim isn't included in the list of predicate acts in § 1961. Because Mr. Price alleges no conduct by Mr. Riley, Mr. Heppenheimer, Mr. McElwee, or Key Bank sufficient to constitute a pattern of racketeering activity, he fails to state a cognizable RICO claim against these defendants.
In addition to pleading two predicate acts, "[t]o establish a RICO pattern it must also be shown that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity."
Even if Mr. Price's alleged "predicate acts" qualified as RICO predicate acts under § 1961 (and they don't), he hasn't asserted any facts to suggest that these acts constitute a threat of continuing racketeering activity. At best, Mr. Price alludes to one scheme, aimed at a single victim, involving few acts, and taking place over a period of approximately six months. These facts don't allow an inference of the requisite pattern of long-term criminal conduct necessary to suggest the existence of a genuine threat of continued criminal activity. See, e.g.,
To proceed under § 1962, a RICO complaint must also identify an "enterprise."
Count VII of Mr. Price's amended complaint includes a number of independent individuals who allegedly wronged him in different ways. Mr. Price. doesn't identify how these individuals are related or how their alleged efforts were structured or coordinated. While he presents limited facts regarding the acts in question, Mr. Price doesn't explain how these acts comprised a common course of conduct or whether the defendants were pursuing goals separate from the acts themselves. This "nebulous, open-ended description of the enterprise does not sufficiently identify this essential element of the RICO offense." See
(iv) RICO conspiracy
Count VII of the amended complaint states no conspiracy claim under § 1962(d). To state a conspiracy claim under § 1962(d), a plaintiff must allege that: "(1) the defendant agreed to maintain an interest in or control of an enterprise or to participate in the affairs of an enterprise through a pattern of racketeering activity, and (2) the defendant further agreed that someone would commit at lest two predicate acts to accomplish those goals."
Mr. Price's amended complaint doesn't plead any facts indicating an agreement by the defendants as to which roles they would play in the enterprise or any agreement by the defendants that someone would commit two specific predicate acts on behalf of the enterprise and in furtherance of the conspiracy. See
Because the complaint doesn't state a claim under either § 1962(c) or (d), the court dismisses Count VII of Mr. Price's amended complaint as against Mr. Riley, Mr. McElwee, Key Bank, and Mr. Heppenheimer.
SUMMARY JUDGMENT MOTION
Mr. Urbankski and Mr. Buraprateep have moved the court for summary judgment on Mr. Price's claims against them. Summary judgment is appropriate when "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In deciding whether a genuine issue of material fact exists, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."
In their summary judgment motion, Mr. Urbanski and Mr. Buraprateep join in the governmental and non-governmental defendants' arguments in support of dismissal. They also argue that summary judgment is appropriate because Mr. Price hasn't presented sufficient evidence to create a genuine issue of fact for trial. Mr. Urbanski reiterates the governmental defendants' argument that the § 1983 claims asserted in Counts I, II, and III don't contain allegations necessary to demonstrate that Mr. Urbanski reached an understanding with Mr. Nagy and Officer Corbett in regards to the alleged conspiracy against Mr. Price. Citing
Finally, Mr. Urbanski and Mr. Buraprateep reiterate the non-governmental defendants' arguments in support of dismissal on Count VII. In particular, none of the conduct attributed to Mr. Urbanski and Mr. Buraprateep — defamation, invasion of privacy, intimidation, misleading conduct, extortion, theft by deception, and intentional infliction of emotional distress — are brought under the federal statutes specifically defined as RICO predicate acts in § 1961. In addition, Mr. Price doesn't present any facts to satisfy the continuity and enterprise requirements of § 1962(c) or the structure requirement of § 1962(d).
For the reasons already stated, the court agrees that Mr. Price hasn't stated a cause of action under § 1983 or § 1985 against Mr. Urbanski. Likewise, the RICO allegations against Mr. Urbanksi and Mr. Buraprateep don't adequately state a claim for relief under § 1962. Mr. Price hasn't presented evidence sufficient to create a genuine issue of material fact on the claims against Mr. Urbanski and Mr. Buraprateep. Accordingly, the defendants are entitled to summary judgment on Counts I, II, III, and VII against Mr. Urbanski and Count VII against Mr. Buraprateep.
For the foregoing reasons, the court GRANTS the motions to dismiss by the governmental defendants [Doc. No. 42], Key Bank and Mr. McElwee [Doc. No. 60], Mr. Riley [Doc. No. 64], Mr. Heppenheimer [Doc. No. 73]. The court also GRANTS Mr. Urbanski's and Mr. Buraprateep's motion for summary judgment [Doc. No. 68].