Ayot v. Berlin

2021 IL App (1st) 201137-U

• Court: Appellate Court of Illinois
• Decided: November 5, 2021
• Docket: 1-20-1137
• Status: Unpublished

Opinion

2021 IL App (1st) 201137-U

FIFTH DIVISION Order filed: November 5, 2021

No. 1-20-1137

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) Appeal from the JAMES AYOT, ) Circuit Court of ) Cook County Plaintiff-Appellant, ) ) v. ) No. 20 L 109 ) ROBERT BERLIN, PATRICIA McCONNELL, DIANE ) SALTOUN, DuPAGE COUNTY STATE’S ) ATTORNEY’S OFFICE, OFFICE OF THE ILLINOIS ) ATTORNEY GENERAL ) Honorable ) Jerry A. Esrig, Defendants-Appellees. ) Judge Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Delort and Justice Connors concurred in the judgment.

ORDER

¶1 Held: We affirmed the order of the circuit court dismissing the plaintiff’s amended complaint No. 1-20-1137

for the failure to state a cause of action and sanctioning the plaintiff for filing a frivolous pleading.

¶2 The plaintiff, James Ayot, appeals, pro se, from an order of the circuit court of Cook

County, dismissing his amended complaint against the defendants, Robert Berlin, Patricia

McConnell, Diane Saltoun, the DuPage County State’s Attorney’s Office, and the Office of the

Illinois Attorney General. For the reasons that follow, we affirm.

¶3 On January 3, 2020, the plaintiff filed a complaint entitled “Complaint of RICO violations

and fraud.” The complaint named Robert Berlin, the DuPage County State’s Attorney, and the

DuPage County State’s Attorney’s Office as defendants (The County Defendants). The complaint

also named Patricia McConnell and the Office of the Illinois Attorney General as defendants (The

State Defendants). The complaint alleged that the plaintiff was “kept in filthy conditions and

denied a vegetarian diet as ordered by doctors” while serving a 30-day prison sentence in DuPage

County jail for contempt of court. After he filed a federal complaint alleging “torture” regarding

his treatment (case no. 17 CV 6750), the County Defendants engaged in a campaign of harassment

against him and “criminal conduct” during that litigation. He also alleged that employees of the

Office of the Illinois Attorney General, including Patricia McConnell, were aware of this conduct

and did not intervene.

¶ 4 The County Defendants and the State Defendants each filed a motions to dismiss the

plaintiff’s complaint, asserting grounds under both section 2-615 and section 2-619 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2020)). In addition, the County

Defendants filed a motion pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) for

sanctions, arguing that the plaintiff’s complaint was “frivolous and vexatious.” The motion alleged

that the plaintiff had a history of filing multiple frivolous lawsuits in both state and federal court

and that the plaintiff had been enjoined from filing additional federal complaints by the executive

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committee of United States District Court for the Northern District of Illinois. The motion

requested an order barring the plaintiff from filing additional pleadings, an award of attorney fees,

and a restriction on filing further lawsuits without the prior approval of the court. The plaintiff

responded to both motions, and in addition, sought sanctions against the County Defendants under

Illinois Supreme Court Rule 137.

¶5 On March 16, 2020, before the circuit court ruled on the defendants’ pending motions, the

plaintiff filed a motion for leave to file an amended complaint, which the circuit court granted. The

plaintiff filed his amended complaint, adding Diane Saltoun, an employee of the Office of the

Illinois Attorney General, as a defendant (hereinafter included with the State Defendants).

¶6 The facts alleged in the amended complaint are as follows. On or around March 20, 2017,

the plaintiff discovered that the DuPage County State’s Attorney’s Office was “fraudulently

claiming on Vinelink” that he had four open and pending cases for violently attacking women and

children. Vinelink is a website run by both the DuPage County State’s Attorney’s Office and the

Illinois Attorney General’s Office. The plaintiff contacted the DuPage State’s Attorney’s Office to

correct the information and they refused. He prepared a motion to compel and appeared before

Judge Bugos in the DuPage County circuit court. During the hearing before Judge Bugos, Assistant

State’s Attorney (ASA) Patrick Collins from DuPage County told the court that the DuPage County

State’s Attorney Office had nothing whatsoever to do with Vinelink. Based on this representation,

Judge Bugos “thr[e]w [the plaintiff] out of his court room” and later scheduled a contempt of court

hearing against him. The plaintiff contacted the Office of the Attorney General for assistance, but

the employee he spoke with, Diane Saltoun, refused to assist him. Faced with this “official

stonewalling,” the plaintiff pursued the matter in federal court where he obtained a court order

requiring that the information on Vinelink be corrected.

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¶7 The amended complaint also alleged that, when the plaintiff appeared before Judge Bugos

in the circuit court of DuPage County on contempt charges, Judge Bugos and ASA Collins “felt

humiliated” by the federal court ruling, and as a consequence, he was found in contempt of court

and sentenced to 30 days imprisonment. While in custody, the plaintiff was kept in a “filthy cell

and not allowed to change his clothes or shower for 15 days.” He was also not fed for two weeks.

The plaintiff described his treatment as “revenge” for humiliating the DuPage County State’s

Attorney’s Office. The plaintiff reported his mistreatment to another employee of the Office of the

Illinois Attorney General, Patricia McConnell, but she took no action. In response to this treatment,

the plaintiff filed a federal complaint (case no. 17 CV 6750) and served the DuPage County State’s

Attorney’s office. However, the defendants used “illegal and unethical conduct” to frustrate that

litigation.

¶8 The amended complaint was not divided into counts but included subheadings including:

“aiding and abetting”; “abuse of office and malicious prosecution”; “fraud” and “evidence

tampering and suppression.” The amended complaint concluded that these actions by the County

Defendants constituted “classic RICO mafia style” and that they were “facilitated and protected”

by the State Defendants. The plaintiff sought $7.5 million in damages.

¶9 On June 18, 2020, the County Defendants filed a combined motion to dismiss the amended

complaint under to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). The County

Defendants sought dismissal pursuant to section 2-615, arguing that the plaintiff’s amended

complaint failed to state a cause of action, but rather consisted of “mere conclusions, opinions,

complaints, and generalities that do not sufficiently or reasonably inform the Defendant of any

cause(s) of action or even the nature of the claim.” The County Defendants sought dismissal under

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section 2-619 asserting estoppel based upon prior decisions involving similar allegations which

were dismissed by the federal court in case number 17 CV 6750 and the circuit court of DuPage

County in case number 16 L 840. In the alternative, the County Defendants argued that venue was

improper in Cook County under section 2-103(a) of the Code of Civil Procedure (735 ILCS

5/2103(a) (West 2020)).

¶ 10 On June 23, 2020, the State Defendants also filed a combined motion under section 2619.1

of the Code. The State Defendants sought dismissal pursuant to section 2-615, arguing that the

plaintiff’s amended complaint failed to state a cause of action. Under section 2-619, the State

Defendants sought dismissal, asserting sovereign immunity.

¶ 11 On September 18, 2020, the circuit court granted both motions. The circuit court found that

the plaintiff’s amended complaint failed to allege sufficient facts to support his claims. The court

also found that the plaintiff’s claims of aiding and abetting against the State Defendants were

barred by sovereign immunity and that the plaintiff was collaterally estopped from relitigating the

issues decided and dismissed with prejudice by the federal court in case no. 17 CV 6750 and the

circuit court in case 16 L840. In addition, the circuit court granted the County Defendants’ motion

for Rule 137 sanctions and barred the plaintiff from filing any further proceedings related to the

events described in the complaint. The court denied the plaintiff’s motion for sanctions and

dismissed the plaintiff’s amended complaint with prejudice. This appeal followed.

¶ 12 Before addressing the merits of this appeal, we first address the brief filed by the plaintiff.

Illinois Supreme Court Rule 341 (eff. Oct. 1, 2020) governs the form and content of appellate

briefs. McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. Compliance with Rule 341 is mandatory,

and the fact that a party appears pro se does not relieve him from complying, as nearly as possible,

with the rules for practice before this court. Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8; see also

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Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 7 (“An appellant’s pro se status

does not alleviate the duty to comply with our supreme court's rules governing appellate

procedure.”).

¶ 13 We find the plaintiff’s brief fails to comply with Rule 341(h) in numerous respects. First,

there is no table of contents as required by Rule 341(h)(1). The brief’s statement of facts is

incomplete and fails to satisfy Rule 341(h)(6). The plaintiff’s two-paragraph statement of facts

does not include “all facts necessary for an understanding of the appeal” and lacks citations to the

record. Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). The argument section is similarly deficient.

Contrary to the requirements of Rule 341(h)(7), the argument section of the plaintiff’s brief

contains no citations to the record and the plaintiff’s arguments are not supported by citation to

authorities. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 14 When a brief fails to comply with the requirements of Rule 341, it is within our discretion

to strike the brief and dismiss the appeal. McCann, 2015 IL App (1st) 141291, ¶ 12 (citing

Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77). However, in this case the issues are simple

and we have the benefit of cogent appellees’ briefs. See Twardowski v. Holiday Hospitality

Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001). Accordingly, we will exercise our discretion

to address the appeal on its merits. Id. Nevertheless, we will treat as forfeited any inadequately

supported arguments.

¶ 15 In dismissing the plaintiff’s amended complaint, the circuit court found that the amended

complaint failed to set forth a cause of action, that the action against the State Defendants is barred

by the doctrine of sovereign immunity, and that the plaintiff is collaterally estopped from

relitigating the issues which were decided and dismissed by federal court in case number 17 CV

6750 and the circuit court of DuPage County in case number 16 L 840. We review the circuit

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court’s dismissal under either section 2-615 or section 2-619 of the Code de novo, independent of

the reasoning of the circuit court. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.

¶ 16 We address first the propriety of the circuit court’s dismissal of the plaintiff’s action on

section 2-615 grounds. When a complaint is dismissed pursuant to section 2-615 of the Code, the

only question before this court is whether the complaint stated a cause of action upon which relief

could be granted. Kirchner v. Green, 294 Ill. App. 3d 672, 679 (1998). In performing our review,

we take all well pled facts in the subject complaint as true and draw all reasonable inferences from

those facts which are favorable to the plaintiff. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991).

However, conclusions of law or fact contained within the complaint that are unsupported by

allegations of specific fact are not taken as true. Id.

¶ 17 As noted earlier, the plaintiff’s amended complaint was not pled in counts, making it

difficult to determine whether it was intended to plead a single cause of action under the Racketeer

Influenced and Corrupt Organization (RICO) Act (18 USC § 1961 et seq. (West 2018)) or multiple

causes of action for a RICO Act violation, aiding and abetting, fraud, and malicious prosecution.

We will address the question of whether the amended complaint stated a cause of action under any

of these theories.

¶ 18 The plaintiff alleged that the County Defendants violated the RICO Act . Section 1964 of

the RICO Act (18 USC § 1964 (West 2018)) provides civil remedies for RICO Act violations. A

complaint alleging a RICO Act violation must allege: an injury to the plaintiff’s business or

property by reason of the defendant’s violation of section 1962 (18 USC § 1962 (West 2018)). See

DeGuelle v. Camilli¸664 F.3d 192, 198 (7th Cir. 2011). To state a claim under section 1962, the

plaintiff was required to allege (1) conduct of (2) an enterprise (3) through a pattern of racketeering

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activity. Id. at 199. Racketeering activity has a broad definition that includes, for example, murder,

kidnapping, gambling, arson, robbery, bribery, extortion, and other serious criminal offenses. See

18 USC § 1961(1) (West 2018).

¶ 19 In the plaintiff’s amended complaint, there are no allegations of a “pattern of racketeering

activity.” The plaintiff merely alleges in conclusory terms that various court proceedings were

decided against him, and that the County Defendants misled the courts. In short, there are no

allegations of criminal behavior. For example, the plaintiff argues that he did not expect the

assistant State’s Attorney to “blatantly lie.” There are no facts pled to support this conclusion. The

plaintiff’s amended complaint fails to state a cause of action under the RICO Act.

¶ 20 In order to state a claim for aiding and abetting, a plaintiff must allege the following: (1)

the party whom the defendant aided performed a wrongful act that caused an injury; (2) the

defendant was generally aware of his role as part of the overall wrongful or tortious activity when

he provided the assistance; and (3) the defendant knowingly and substantially assisted in the

principal violation. Johnson v. Filler, 2018 IL App (2d) 170923, ¶ 16. In this case, the plaintiff’s

claim of aiding and abetting fails to allege action by the State Defendants that substantially assisted

the County Defendants in the performance of any wrongful or tortious conduct. The amended

complaint alleges nothing more than that the State Defendants decided not to investigate or take

other action in response to the plaintiff’s complaints about the County Defendants. Failure to take

action after the fact does equate with knowingly and substantially assisting in the principal

violation. Therefore, we conclude the plaintiff’s amended complaint fails to state a cause of action

for aiding and abetting.

¶ 21 In order to state a cause of action for malicious prosecution, a plaintiff must allege (1) the

commencement or continuation by the defendant of an original judicial proceeding against the

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plaintiff; (2) termination of the original proceeding in favor of the plaintiff; (3) absence of probable

cause for the proceedings; (4) malice; and (5) special damages. Grundhoefer v. Sorin, 2014 IL App

(1st) 131276, ¶ 11. The factual allegations contained in the plaintiff’s amended complaint fail to

support any of the elements. The amended complaint fails to state a cause of action for malicious

prosecution.

¶ 22 In order to set forth a cause of action for fraud, a complaint must allege with particularity:

(1) a false statement of material fact made by the defendant; (2) knowledge or belief by the

defendant that the statement was false; (3) an intention to induce the plaintiff to act; (4) action by

the plaintiff in reasonable reliance upon the truth of the statement; and (5) damage to the plaintiff

resulting from that reliance. Avon Hardware Co. v. Ace Hardware Corp., 2013 IL App (1st)

130750, ¶ 15. The plaintiff’s amended complaint failed to allege facts in support of each of the

elements of fraud.

¶ 23 Finally, there are no known private causes of action for abuse of office or evidence

tampering and suppression.

¶ 24 In summary, the plaintiff’s amended complaint failed to state any cause of action upon

which relief could be granted and was, therefore, properly dismissed by the trial court. Having

found that the plaintiff’s amended complaint failed to state a cause of action, we find it unnecessary

to discuss the dismissal based on the section 2-619 grounds of sovereign immunity or collateral

estoppel

¶ 25 Likewise, we find it unnecessary to discuss the propriety of the circuit court’s order

sanctioning the plaintiff for filing frivolous pleadings. The plaintiff raised no challenge to the

sanctions provision of the circuit court’s order in his brief in this appeal, and accordingly the issue

is waived. Ill. S. C. R 341(h)(7)(eff. Oct 1, 2020).

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¶ 26 For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 27 Affirmed.

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