2019 IL App (1st) 190197 No. 1-19-0197
Fourth Division August 29, 2019 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) JOSHUA ZALE, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) No. 2017 CH 11060 v. ) ) The Honorable MORAINE VALLEY COMMUNITY COLLEGE, ) John Joseph Hynes, ) Judge Presiding. Defendant-Appellee. ) ) ______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the dismissal of plaintiff Joshua Zale’s complaint against
defendant Moraine Valley Community College, in which plaintiff took issue with a warning
issued by the defendant college in response to a comment made by plaintiff during a theater
class, claiming that the sanctions imposed on him violated his due process rights and an
implied contract between plaintiff and the defendant college. Plaintiff appeals and, for the
reasons that follow, we affirm. No. 1-19-0197
¶2 BACKGROUND
¶3 On August 14, 2017, plaintiff filed a pro se complaint against the defendant college,
alleging that he was enrolled as a student during the 2016-17 school year. Plaintiff alleged
that one of the courses in which he was enrolled was an acting class, where he was given an
assignment to improvise a scene in which he was to impersonate a pimp who was to persuade
his prostitute to give him money. After the class, his professor informed plaintiff that he had
used an unacceptable word during his performance. Plaintiff and the professor met on April
20, 2017, to discuss plaintiff’s use of the word, which plaintiff alleged “was precisely within
the assignment he had been given.” Defendant’s assistant dean of liberal arts and director of
academic arts was present at the meeting and, during the meeting, “accused Plaintiff of
mistreating her as a woman.”
¶4 Plaintiff’s complaint did not set forth the specific details of the incidents leading to the
report against him, but the record contains an incident report entered by the assistant dean, as
well as notes commemorating a conversation the defendant’s dean of students had with the
professor concerning the report. According to the professor, approximately six weeks before
April 20, plaintiff had been involved in an improvisational scene in his theater class, in which
plaintiff was in the role of a pimp and the professor was in the role of a prostitute. During the
scene, plaintiff used the word “c***,” and the professor instructed plaintiff not to use that
word. According to the professor, the moment passed, and plaintiff did not bring it up again.
However, several weeks later, on April 18, plaintiff engaged the professor in a provocative
line of conversation, involving plaintiff’s thoughts on Jewish people, “safe zones, affirmative
action, and modern-day feminism,” during which plaintiff brought up the incident from class
and suggested that he could say anything he liked because it was protected by the first
2 No. 1-19-0197
amendment. Two days later, on April 20, plaintiff followed the professor into his office after
they had attended a campus speaker event, stating that he wanted to “ ‘continue our argument
from the other day.’ ” Plaintiff again began speaking about the first amendment and its
relationship to the student code of conduct. The professor called the assistant dean and asked
her to come to his office, which she did. They attempted to speak with plaintiff about “the
Code [of Conduct], Title IX, and students being comfortable on campus.” Plaintiff began to
“argue over” the assistant dean and to interrupt her, at one point calling her a “ ‘little girl’ ”
before she left the office. According to the professor, the conversation became loud enough
that a colleague came over and asked them to be quieter.
¶5 According to the assistant dean’s report, on April 20, 2017, the professor called her and
asked her to come to his office, where she discovered him in conversation with a student. The
professor asked her what steps he was to take when a student made inappropriate comments
in a classroom, and she explained the options. The student “jumped in” and stated that the
first amendment permitted him to say anything he liked, and the professor and the assistant
dean “verbally shared Code of Conduct and Title IX information with the student.” However,
the student insisted that “it wouldn’t stand up in the court of law” and stated that he was
“ ‘smarter than the lawyers,’ ” at which point the assistant dean asked the student if he was in
law school. According to the assistant dean, at one point, she informed the student that his
behavior and words could be perceived as intimidating and bullying, and he backed up into
his chair, crossed his arms, and repeatedly asked, “ ‘you think this is intimidating?’ ” Another
faculty member entered the room and asked everyone to quiet down, as he had a student in
the next room taking an exam, and the student replied “ ‘boo hoo.’ ” The student later asked
the assistant dean if she was “ ‘making this a woman thing’ ” and referred to her as a “ ‘little
3 No. 1-19-0197
girl’ ” as she was leaving the office. The assistant dean reported that “[t]hroughout the entire
conversation, the student was disrespectful towards [the professor], [the other faculty
member], and [the assistant dean] and could be perceived as harassing or intimidating in
various situations.” As an example, the assistant dean pointed to the student’s frequent habit
of speaking over the professor and the assistant dean and not permitting them to speak, even
after the professor raised the issue with him.
¶6 In his complaint, plaintiff alleged that on April 26, 2017, he received a letter from
defendant’s dean of students, 1 and, after receiving the letter, plaintiff “demanded that the
individuals who were accusing him of misconduct be present at any hearing which was to be
held regarding the charges against him.” The dean denied plaintiff’s request, and as a result,
plaintiff refused to participate in any hearing. On May 4, 2017, plaintiff received a letter
informing him that he would be required to write an essay and that failure to do so would
result in a hold being placed on his records. Plaintiff refused to write the essay, and on May
19, 2017, plaintiff received a letter informing him that a hold had been placed on his records,
preventing him from enrolling in future courses. As a result, plaintiff alleged that he had been
deprived of the ability to continue with his education at the defendant college.
¶7 Plaintiff alleged that he was deprived of procedural due process because the charges
against him were conclusory and did not provide notice of the conduct with which he was
charged; he was deprived of the right to confront his accusers; the hearing was to be
conducted by the dean, who was not an unbiased decisionmaker; and the punishment was
arbitrary and capricious. Plaintiff further alleged that the manner in which the proceedings
were handled failed to comply with the defendant college’s code of student conduct and that
1 We describe the contents of each of the letters received by plaintiff in detail below. 4 No. 1-19-0197
the penalties imposed were done in retaliation for plaintiff’s exercise of his right to free
speech.
¶8 Plaintiff requested that the trial court grant him the following relief: (1) ordering the
defendant college to rescind any and all charges against him and any penalties imposed upon
him, (2) ordering the defendant college to allow plaintiff to enroll in any courses for which
he is qualified, and (3) awarding plaintiff actual and punitive monetary damages.
¶9 Attached to the complaint were copies of the letters referenced in the complaint. First, an
April 26, 2017, letter from the dean stated that, based on a report from the assistant dean and
plaintiff’s professor, “it is important that we discuss the incident that took place on April 20,
2017 at 1:00 PM in the F Building. Actions of this nature, if accurate, are not acceptable at
the college and may have violated the Code of Student Conduct.” Specifically, the letter
stated that plaintiff was accused of violating two sections of the code:
“1. IV.2 Disruption or obstruction of any operation of the college, including, but
not limited to, teaching, student conduct proceedings, college activities, public service
functions on or off campus, or other authorized non-college activities, when the act
occurs on college premises.
2. IV.3 Physical/Verbal Abuse of Harassment: Any act that threatens or endangers
the health or safety of any person, including but not limited to, physical abuse, verbal
abuse, threats, intimidation, harassment, coercion, intimate partner violence, and
stalking. For more information, see Sexual Discrimination, Harassment, and
Misconduct Policy.”
The letter asked plaintiff to contact the dean to schedule a meeting regarding the matter and
provided, in bold print, that “[t]his meeting must be scheduled by May 1, 2017, and held no
5 No. 1-19-0197
later than May 3, 2017. Failure to respond to this request may result in additional violations
and/or a hold on your records, and a hearing will be scheduled for you.”
¶ 10 Next, a May 4, 2017, letter from the dean stated that a hearing was held in plaintiff’s
absence on May 4, and that plaintiff had been determined “[r]esponsible” for three violations
of the code of student conduct: (1) “Disruption of college operation,” (2) “Physical/verbal
abuse & harassment,” and (3) “Failure to comply with a request to attend a meeting.” As a
result, two sanctions were imposed on plaintiff. First, plaintiff received a formal warning,
and second, plaintiff was required to write a two-page essay “on how [the defendant
college’s] five core values apply to [plaintiff’s] interaction with the staff members,” which
was to be submitted to the dean by May 18. The letter provided that plaintiff had the right to
appeal any decision or sanctions within five days of the receipt of the letter and warned that
“[f]ailure to complete or to abide by these sanctions by the indicated deadlines could result in
a hold placed on your records or further disciplinary action.”
¶ 11 Finally, a May 19, 2017, letter from the dean stated that plaintiff had not submitted the
required essay. Consequently, the letter provided: “A registration hold has been placed on
your record. This hold will remain in place until you have satisfactorily resolved this matter
and completed the assigned sanction. Please note that failure to complete your sanction could
result in further disciplinary action.”
¶ 12 On October 20, 2017, the defendant college filed an answer to plaintiff’s complaint.
¶ 13 On October 23, 2017, plaintiff filed an amended pro se complaint, which was largely
identical to his prior complaint, with the exception of the additional allegation that the
defendant college’s sexual discrimination, harassment, and misconduct policy violated the
first amendment because it was “vague, ambiguous and overbroad”; plaintiff did not specify
6 No. 1-19-0197
which sections of the policy were allegedly unconstitutional. Plaintiff also alleged that the
defendant college had “cease[d] its illegal actions” upon the filing of plaintiff’s lawsuit.
Plaintiff’s amended complaint therefore changed the relief requested to (1) ordering the
defendant college to “rescind [the] current version of [the] Sexual Discrimination,
Harassment and Misconduct Policy, with the purpose of preventing any future illegal actions
on the part of the Defendant in associated matters concerning students and faculty” and
(2) awarding plaintiff actual and punitive monetary damages.
¶ 14 Attached to the amended complaint were the same three letters that had been attached to
the original complaint, as well as two additional exhibits. First, attached to the amended
complaint was a chain of e-mails between plaintiff and the dean, beginning with an e-mail
from the dean containing the April 26, 2017, letter in which plaintiff was notified of the
reports of misconduct against him. Plaintiff replied to the e-mail the same day, stating that he
would be “more than happy to schedule a meeting,” provided that the assistant dean and his
professor would be in attendance. Plaintiff stated that “[o]therwise I see no point” in
scheduling a meeting. The dean sent a response the next day, stating that when plaintiff
attended the meeting, the dean would “share with [plaintiff] the information that was
forwarded from the staff members” but that they would not be present at the meeting.
However, the dean stated that he “can certainly follow up with them if there are any
questions or further information [the dean] might need from them.” The dean informed
plaintiff that “[t]his will be your opportunity to hear the information and give your response
to the allegations.” On the same day, plaintiff replied, stating that “[i]f the staff members will
not be present, then there will be no meeting.” Plaintiff also expressed impatience with the
manner in which the matter was being handled and indicated that if the defendant college
7 No. 1-19-0197
attempted to impose “any consequence whatsoever in this matter, I may have to escalate this
situation into the legal realm.” (Emphasis omitted.) The dean responded the same day,
informing plaintiff that it was “up to you if you choose to schedule a meeting with me and/or
if you want to ‘escalate this situation into the legal realm.’ ” However, he informed plaintiff
that the defendant college would be “moving forward with our process by following the
established procedures as outlined in the Code of Student Conduct.”
¶ 15 Also attached to the amended complaint was a letter from the defendant college’s
attorney, 2 informing plaintiff that the defendant college disputed plaintiff’s allegations and
would defend against them but that he had consulted with the defendant college and that
“[t]here is no hold placed on your enrollment for future classes. Should you desire to enroll
in any classes for the fall 2017 academic semester, you are free to do so.”
¶ 16 On December 11, 2017, the defendant college filed an answer to the amended complaint.
On the same day, the defendant college filed a motion to strike portions of plaintiff’s
amended complaint, attaching as an exhibit a copy of the defendant college’s “Sexual
Discrimination, Harassment and Misconduct Policy” (sexual discrimination policy).
Specifically, the defendant college sought to strike the portions of the complaint alleging that
the sexual discrimination policy was unconstitutional, the prayer for relief seeking to
“rescind” the sexual discrimination policy, and the prayer for relief seeking punitive
damages. The defendant college claimed that plaintiff had not identified what portion of the
35-page policy allegedly violated plaintiff’s rights or how it did so. The defendant college
also claimed that the trial court lacked the authority to order the defendant college to engage
2 The copy of the letter attached to the amended complaint is scanned in such a way that the date of the letter is cut off. However, a full copy of the letter is located elsewhere in the record and shows that it was dated August 21, 2017. 8 No. 1-19-0197
in a wholesale rescission of the sexual discrimination policy. Finally, the defendant college
claimed that plaintiff lacked standing to take any action designed to prevent “ ‘future illegal
actions’ ” on the part of the defendant college, as his claim arose from a single incident
resulting only in a warning. The defendant college also claimed that the prayer for relief
seeking punitive damages was improper, as the defendant college was immune from any
punitive damages claims.
¶ 17 On February 21, 2018, the trial court entered an order granting the defendant college’s
motion in part. The court found that it was undisputed that plaintiff was not enrolled at the
defendant college, and did not register for classes despite the opportunity to do so, and,
therefore, his original claim for injunctive relief was moot. With respect to plaintiff’s claims
concerning the sexual discrimination policy, the court found that plaintiff lacked standing to
seek any injunctive relief as to the validity of the policy and that his request for rescission
was not well-pled. The court entered and continued the motion to strike the request for
punitive damages and transferred the case to the law division since the only remaining claim
was based on breach of an implied contract between plaintiff and the defendant college.
¶ 18 On April 6, 2018, the defendant college filed a motion seeking to have the case
transferred to the fifth municipal district. The defendant college claimed that in his initial
pretrial memorandum, plaintiff indicated that he was seeking $10,000 in damages, meaning
that it was a municipal department case. On April 16, 2018, plaintiff filed a response in
opposition to the motion, as well as a motion for leave to amend his complaint. On April 30,
2018, the trial court granted the defendant college’s motion to transfer, and the case was
transferred to the fifth municipal district.
9 No. 1-19-0197
¶ 19 On August 22, 2018, plaintiff again filed a motion for leave to amend his complaint,
which was granted by the trial court on September 18, 2018. Plaintiff’s pro se second
amended complaint 3 was similar to his first two complaints in large part but contained
additional allegations. Plaintiff alleged that, as a student, he had entered into an implied
contract with the defendant college. Plaintiff alleged that this implied contract incorporated
the defendant college’s sexual discrimination policy, which was “vague, ambiguous and
overbroad” in violation of the first amendment. Plaintiff incorporated his prior response to
the defendant college’s motion to strike to provide examples of the way in which he alleged
the policy violated the first amendment, such as the failure to specify exactly what language
would be considered inappropriate. Plaintiff also alleged that the defendant college “did not
even follow” its policies, “further violating the implied contact” between plaintiff and the
defendant college. Plaintiff’s prayer for relief sought (1) rescission of the current versions of
defendant’s code of conduct and sexual discrimination policies, “as any formulation and
implementation of contracts of this nature, which serve to subvert the United States
Constitution, by a tax payer funded public entity that is bound to uphold the Constitution, is
illegal” and (2) actual and punitive damages in the amount of $150,000.
¶ 20 On October 18, 2018, the defendant college filed a combined motion to dismiss
plaintiff’s second amended complaint pursuant to section 2-619.1 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)). The defendant college claimed that the
complaint should be dismissed under section 2-619(a)(2) of the Code (735 ILCS 5/2-
619(a)(2) (West 2016)) because plaintiff lacked standing, since he was not a current student
3 The record shows that plaintiff never separately filed the second amended complaint, the proposed copy of which was attached to his motion for leave to file it. However, the defendant college filed a motion to dismiss based on the proposed second amended complaint, as though it had been properly filed, and we will likewise treat the proposed second amended complaint as the actual second amended complaint. 10 No. 1-19-0197
and he had not suffered any injury. The defendant college also claimed that, to the extent
plaintiff was bringing a due process claim, the complaint should be dismissed under section
2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)) because plaintiff had waived
his right to due process by refusing to participate in the process offered to him. The
defendant college additionally claimed that the complaint should be dismissed under section
2-615 of the Code (735 ILCS 5/2-615 (West 2016)) because plaintiff had failed to plead
sufficient facts to support any of his claims. Finally, the defendant college again asked that
plaintiff’s request for punitive damages be stricken.
¶ 21 Attached to the motion to dismiss was an affidavit from the dean, who averred that
plaintiff was not currently enrolled at the defendant college and that there were no current
barriers that would prevent him from enrolling in classes.
¶ 22 On December 7, 2018, plaintiff filed a response to the motion to dismiss, claiming that he
had standing, that he had not waived any due process argument, and that the allegations of
the second amended complaint stated causes of action for violations of his due process rights
and for breach of contract.
¶ 23 On the same day, plaintiff filed a motion for leave to file a pro se third amended
complaint. The majority of the allegations in the proposed complaint were the same as in his
prior complaints but added references to documents produced by the defendant college in
discovery, which were attached to the proposed complaint. Plaintiff also added an allegation
that he had been deprived of a property interest by the defendant college’s actions because he
was deprived of the ability to continue with his education with defendant and could no longer
utilize his existing credits to receive a degree from the defendant college.
11 No. 1-19-0197
¶ 24 On December 17, 2018, the defendant college filed a motion to strike the proposed third
amended complaint, as plaintiff did not have leave to file it.
¶ 25 On January 3, 2019, after a hearing, the trial court entered a memorandum opinion and
order granting the defendant college’s motion to dismiss plaintiff’s second amended
complaint. First, the court found that plaintiff did not have standing to contest the defendant
college’s policies and procedures since he was not enrolled as a student and had not been
enrolled since the spring semester of 2017, despite the fact that he had been free to do so.
Second, the court found that plaintiff was unable to establish a direct injury to his property or
rights, as required for a breach of contract claim, since he was free to register for classes and
received only the equivalent of a written warning for his conduct. Third, the court found that
there was no dispute that plaintiff had received notice of a hearing and an opportunity to be
heard, as well as receiving notice of the decision of the administrator and an opportunity to
appeal. The court further found that plaintiff refused to participate in any aspect of the
disciplinary process, during which he would have been able to raise his issues, and that
“[d]ue process is not denied when a party fails to avail himself of the opportunity to be heard
after it is offered to him.” Accordingly, the trial court dismissed plaintiff’s complaint in its
entirety pursuant to section 2-619 and found that it had no need to consider the defendant
college’s arguments under section 2-615.
¶ 26 The trial court also addressed the defendant college’s motion to strike plaintiff’s proposed
third amended complaint, finding that the new complaint “is identical to his Second
Amended Complaint except his new complaint references specific sections of the attached
exhibits to his complaint.” The court found that, “[o]ther than these references, Plaintiff’s
claims for relief are identical.” Consequently, based on its ruling on defendant’s section 2-
12 No. 1-19-0197
619 motion to dismiss, the court struck the proposed third amended complaint and dismissed
it with prejudice.
¶ 27 On February 1, 2019, plaintiff filed a notice of appeal.
¶ 28 On February 4, 2019, plaintiff filed a “notice of filing for the preparation of a
supplemental record on appeal,” which he claimed was pursuant to Illinois Supreme Court
Rule 324 (eff. July 1, 2017), as well as a transcript of his discovery deposition 4 and the
defendant college’s answer to plaintiff’s first amended complaint, “in preparation for a
supplemental record on appeal.”
¶ 29 ANALYSIS
¶ 30 On appeal, plaintiff takes issue with the trial court’s dismissal of his proposed third
amended complaint, as well as certain questioning by the defendant college’s counsel during
his deposition. As an initial matter, the defendant college argues that plaintiff’s appeal should
be dismissed because of plaintiff’s failure to comply with Illinois Supreme Court Rule 341
(eff. May 25, 2018). Rule 341(h) governs the contents of the appellant’s brief and provides
that the brief must contain (1) a statement of points and authorities summarizing the points
argued and the authorities cited in the argument section, (2) an introductory paragraph setting
forth the nature of the action and of the judgment appealed from, (3) a statement of the issues
presented for review, (4) a statement of jurisdiction, (5) the pertinent portions of any statutes
involved, (6) a statement of facts, (7) argument, (8) a conclusion, and (9) an appendix. Ill. S.
Ct. R. 341(h) (eff. May 25, 2018). Plaintiff’s brief omits almost all of these required
elements, including only argument, a conclusion paragraph, and an appendix.
4 This is the first time the transcript from plaintiff’s deposition appears in the record on appeal. 13 No. 1-19-0197
¶ 31 Furthermore, the argument section of the brief is seriously deficient. Rule 341(h)(7)
provides that the argument section “shall contain the contentions of the appellant and the
reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill. S.
Ct. R. 341(h)(7) (eff. May 25, 2018). While plaintiff includes record citations, there is no
citation to any legal authority whatsoever in his brief. The sole authority cited throughout his
briefing is a single quotation of the first amendment, which is included in his reply brief.
¶ 32 We recognize that plaintiff is proceeding pro se on this appeal. However, when litigants
appear pro se, their status does not relieve them of their burden of complying with the court’s
rules. Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 30; Holzrichter v. Yorath, 2013 IL App
(1st) 110287, ¶ 78; Epstein v. Galuska, 362 Ill. App. 3d 36, 39 (2005). “ ‘While this court is
not bound to enforce strict, technical compliance with the rules where, despite minor
inadequacies in an appellate brief, the basis for an appeal is fairly clear [citation], a party’s
failure to comply with basic rules is grounds for disregarding his or her arguments on
appeal.’ ” Oruta, 2016 IL App (1st) 152735, ¶ 30 (quoting Epstein, 362 Ill. App. 3d at 42).
Supreme court rules are not advisory suggestions, but rules to be followed. In re Marriage of
Hluska, 2011 IL App (1st) 092636, ¶ 57. Where an appellant’s brief fails to comply with
supreme court rules, this court has the inherent authority to dismiss the appeal. Oruta, 2016
IL App (1st) 152735, ¶ 30; Epstein, 362 Ill. App. 3d at 42. Accordingly, since plaintiff’s brief
fails to comply with the requirements of Rule 341, we may, in our discretion, dismiss his
appeal. Fender v. Town of Cicero, 347 Ill. App. 3d 46, 51 (2004). However, we will proceed
to consider plaintiff’s arguments, despite the serious deficiencies in his briefing, because the
issues presented are easily resolved. See Fender, 347 Ill. App. 3d at 51-52 (considering the
14 No. 1-19-0197
appeals despite “glaring” deficiencies in briefing due to the gravity of the allegations and the
straightforward issues of law).
¶ 33 This does not mean, however, that both of plaintiff’s arguments are properly before this
court. On appeal, plaintiff appears to challenge certain lines of questioning asked during his
deposition. The defendant college asks us to strike the deposition transcript and any
arguments related to it from the record and from plaintiff’s brief. As noted, after the trial
court’s January 3, 2019, order, plaintiff filed a notice of appeal on February 1, 2019. In
connection with that appeal, on February 4, 2019, plaintiff filed a “notice of filing for the
preparation of a supplemental record on appeal,” which indicated that plaintiff intended to
file a supplemental record on appeal that contained plaintiff’s deposition transcript, which he
attached to the notice of filing. We agree with the defendant college that this transcript is not
properly before us. It was not presented to the trial court in connection with any matter
before it and was not before the trial court at the time it entered its January 3, 2019, order.
The first time the transcript appears in the record on appeal is in connection with a notice of
filing of a supplemental record. 5 Similarly, the first time plaintiff made any arguments
concerning the contents of the deposition is on appeal; plaintiff did not raise any issues with
the deposition before the trial court, and the deposition is not an issue in this case.
Consequently, we do not consider plaintiff’s claims concerning the deposition and consider
only the issues that are properly before this court. See Clark v. Brokaw Hospital, 126 Ill.
App. 3d 779, 784 (1984) (striking deposition transcripts where the depositions were not
before the trial court at the time the appealed-from order was entered); Susman v. North Star
5 We note that no supplemental record has been filed in the instant appeal. 15 No. 1-19-0197
Trust Co., 2015 IL App (1st) 142789, ¶¶ 41-42 (refusing to consider argument raised for the
first time on appeal).
¶ 34 We turn, then, to the remaining issue raised by plaintiff—whether the trial court erred in
dismissing his proposed third amended complaint. First, we note that while the parties and
the trial court referred to “dismiss[ing]” the third amended complaint, that is not entirely
accurate. Plaintiff filed his third amended complaint on December 7, 2018, on the same day
as he filed his response to the motion to dismiss. However, at the same time, plaintiff also
filed a motion for leave to file an amended complaint. Accordingly, the third amended
complaint is technically a proposed third amended complaint that plaintiff sought to file, and
the trial court’s order striking and dismissing it should be considered in that context. 6
¶ 35 Section 2-616(a) of the Code provides that amendments to complaints may be allowed at
any time before judgment, on just and reasonable terms. 735 ILCS 5/2-616(a) (West 2016).
The decision to allow an amendment to a pleading rests within the sound discretion of the
trial court, and we will not reverse the trial court’s decision absent an abuse of that discretion.
Axion RMS, Ltd. v. Booth, 2019 IL App (1st) 180724, ¶ 26. “A trial court abuses its
discretion when no reasonable person would take the view adopted by the trial court.” Axion
RMS, 2019 IL App (1st) 180724, ¶ 26. To determine whether a trial court has abused its
discretion, we look to the four factors set out by our supreme court: “(1) whether the
proposed amendment would cure the defective pleading; (2) whether other parties would
sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed
6 This, of course, leaves aside the fact that plaintiff never technically filed a separate second amended complaint after receiving leave to do so. However, as previously noted, since the defendant college treated the proposed second amended complaint as though it was filed, we continue to do so as well. 16 No. 1-19-0197
amendment is timely; and (4) whether previous opportunities to amend the pleading could be
identified.” Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).
¶ 36 In the case at bar, the first factor proved dispositive to the trial court—it found that the
proposed third amended complaint was “identical to his Second Amended Complaint except
his new complaint references specific sections of the attached exhibits to his complaint.
Other than these references, Plaintiff’s claims for relief are identical.” We agree with the trial
court that plaintiff’s third amended complaint would not have cured the deficiencies of the
second amended complaint.
¶ 37 First, to the extent that plaintiff is challenging the defendant college’s policies generally,
we agree that he lacks standing as he is not currently a student. It is well established that
standing requires some injury in fact to a legally cognizable interest. Glisson v. City of
Marion, 188 Ill. 2d 211, 221 (1999). “The claimed injury may be actual or threatened, and it
must be (1) distinct and palpable; (2) fairly traceable to the defendant’s actions; and
(3) substantially likely to be prevented or redressed by the grant of the requested relief.”
Glisson, 188 Ill. 2d at 221 (citing Greer v. Illinois Housing Development Authority, 122 Ill.
2d 462, 492-93 (1988)). In the case at bar, plaintiff is not a student at the defendant college
and has not been so since the spring 2017 semester. Accordingly, we agree with the trial
court that plaintiff has no legally cognizable interest in the defendant college’s policies as a
nonstudent. We find unpersuasive plaintiff’s claim that he has an interest in the defendant
college’s policies because his credit hours constitute a property interest. Plaintiff cites no
authority for this proposition, and even if his credit hours gave him a sufficient interest in the
defendant college’s policies for standing purposes, that property interest has not been injured
by the defendant college’s sexual discrimination policy or its code of conduct. As a
17 No. 1-19-0197
nonstudent, the defendant college’s policies would not implicate plaintiff’s use of those
credits. Consequently, the defects present in the second amended complaint concerning
plaintiff’s challenge to the defendant college’s policies generally are not cured by the
allegations contained in the proposed third amended complaint.
¶ 38 Second, with respect to plaintiff’s allegations that the defendant college breached its
contract with plaintiff though its imposition of sanctions, we again agree with the trial court
that plaintiff has not established any injury from the sanctions. As noted, standing requires
some injury in fact to a legally cognizable interest. Glisson, 188 Ill. 2d at 221. Additionally,
injury to the plaintiff is a required element in a breach-of-contract claim. See Burkhart v.
Wolf Motors of Naperville, Inc., 2016 IL App (2d) 151053, ¶ 14 (setting forth elements of
breach-of-contract cause of action). In the case at bar, plaintiff received a written warning
and was ordered to write an essay. When plaintiff did not write the essay, he received a hold
on his account for three months, a sanction that could have been avoided had plaintiff
complied with the initial sanction. Plaintiff is currently free to register for classes and has
been free to do so for nearly two years. We agree with the trial court that plaintiff has not
alleged any injury from the imposition of the defendant college’s sanction. Plaintiff claims
that his injury arises from the fact that he was prevented from registering for three months.
However, the dean’s May 19, 2017, letter informing plaintiff of the hold specifically noted
that the hold would be lifted upon completion of the sanction, meaning that plaintiff had full
control over the length of the hold. Accordingly, we find this argument unpersuasive and
agree with the trial court that the third amended complaint contains the same deficiencies
present in the second amended complaint.
18 No. 1-19-0197
¶ 39 Finally, we agree with the trial court that plaintiff has failed to allege any deprivation of
his due process rights. Fundamentally, “[d]ue process of law requires that a party be accorded
procedural fairness, i.e., given notice and an opportunity to be heard.” Gredell v. Wyeth
Laboratories, Inc., 346 Ill. App. 3d 51, 62 (2004); see also BAC Home Loans Servicing, LP
v. Mitchell, 2014 IL 116311, ¶ 28 (“The fundamental requirement of due process is the
opportunity to be heard, and that right ‘has little reality or worth unless one is informed that
the matter is pending.’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950))). “Due process is a flexible concept, whose requirements depend on the
government action at issue and the private interest implicated by that action.” Grimm v.
Calica, 2017 IL 120105, ¶ 21. In the case at bar, it is undisputed that plaintiff received notice
of the allegations against him, received notice of the hearing and the opportunity to be
present at the hearing, received notice of the results of the hearing, and received notice of his
appeal rights, and it is also undisputed that plaintiff affirmatively declined to participate in
the proceedings. “Due process is not denied when a party fails to avail himself of the
opportunity to be heard after it is offered to him.” In re E.L., 152 Ill. App. 3d 25, 33 (1987);
see also First Lien Co. v. Markle, 31 Ill. 2d 431, 438-39 (1964) (finding that due process was
not denied where the defendants had notice of an increased assessment and an opportunity to
be heard but “availed themselves of neither right”). Here, plaintiff chose not to participate in
the process offered to him, and we agree with the trial court that plaintiff’s failure to avail
himself of the process offered to him resulted in the waiver of his right to be heard. See
Brooks v. Board of Trustees of the University of Illinois, 90 Ill. App. 3d 591, 592 (1980)
(where the plaintiff failed to appeal parking tickets, finding that “[d]ue process was not
denied—it was waived”).
19 No. 1-19-0197
¶ 40 In the case at bar, plaintiff’s proposed third amended complaint contains the same defects
present in his second amended complaint. Consequently, we cannot find that the trial court
erred in dismissing the case in its entirety with prejudice.
¶ 41 CONCLUSION
¶ 42 Plaintiff’s third amended complaint did not cure the defects present in the second
amended complaint, and the trial court properly dismissed the case in its entirety with
prejudice.
¶ 43 Affirmed.
20 No. 1-19-0197
No. 1-19-0197
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2017-CH- 11060; the Hon. John Joseph Hynes, Judge, presiding.
Attorneys Joshua Zale, of Oak Lawn, appellant pro se. for Appellant:
Attorneys John B. Murphey, of Rosenthal, Murphey, Coblentz & Donahue, for of Chicago, for appellee. Appellee: