In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1448
M ARK G EINOSKY,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10-cv-01438—John W. Darrah, Judge.
A RGUED JANUARY 13, 2012—D ECIDED M ARCH 28, 2012
Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Plaintiff Mark Geinosky
received twenty-four bogus parking tickets and made a
federal case out of it. At first blush, this case might seem
like a good candidate for the summary Rule 12(b)(6)
dismissal granted by the district court. A closer look at
the alleged facts, however, reveals a disturbing pattern.
Absent a reasonable explanation, and none has even
been suggested yet, the pattern adds up to deliberate
2 No. 11-1448
and unjustified official harassment that is actionable
under the Equal Protection Clause of the Fourteenth
Amendment. We therefore reverse the dismissal of
Geinosky’s “class-of-one” equal protection claim as well
as his related civil conspiracy claim. We affirm the dis-
missal of Geinosky’s substantive due process claim,
however. He has not pled facts suggesting a deprivation
that meets the high threshold for such claims established
by the Supreme Court and by our precedents.
All of Geinosky’s parking tickets concerned the same
Toyota and were received over a fourteen-month period
beginning in October 2007. All arrived in the mail, typically
in batches of three or four. All were written by officers
of Unit 253 of the Chicago Police Department. Some of
the tickets were inconsistent with others received at
the same time, implying, for example, that the Toyota
was in two places almost at once or was simultaneously
double-parked and parked on the sidewalk. All thirteen
of the tickets attributed to Officer Wilkerson and issued
on May 2, July 8, August 27, and October 7, 2008
had sequential citation numbers and concerned alleged
violations that occurred on each date at exactly 10:00 p.m.
Ten of the tickets were issued while Geinosky’s estranged
wife was in possession of the Toyota. Another ten were
issued after he got the car back, and the last four were
issued even after Geinosky sold the Toyota. Because
none of the twenty-four tickets were legitimate, Geinosky
had all of them dismissed, but he had to go to court
seven times to do so.
Before filing this lawsuit, Geinosky tried other paths
to stop the harassment. He complained to police super-
No. 11-1448 3
visors in Unit 253, to the police department’s Internal
Affairs Division, and to the Independent Police Review
Authority. After Internal Affairs closed the case without
investigating, Geinosky contacted the Chicago Tribune,
which ran several stories about his plight as part of
its Problem Solver column. The Internal Affairs Divi-
sion then reopened the case and began an investiga-
tion. Geinosky also filed this lawsuit. While this appeal
was pending, the Tribune reported that the internal
investigation had resulted in a recommendation to fire
several defendant officers from Unit 253. See Jon Yates,
Problem Solver: Police cite 3 officers over fake tickets; man
vindicated, Chicago Tribune, Nov. 7, 2011, available at
http://www.chicagotribune.com/business/problemsolver/
ct-biz-1107-problem-geinosky-20111107,0,7221534.column
(last visited Mar. 23, 2012).1
1
Perhaps our reference to this recent newspaper story might
raise an eyebrow, but it should not. The defendants moved to
dismiss for failure to state a claim under Rule 12(b)(6). A motion
under Rule 12(b)(6) can be based only on the complaint
itself, documents attached to the complaint, documents that
are critical to the complaint and referred to in it, and informa-
tion that is subject to proper judicial notice. See Fed. R. Civ. P.
10(c) (written instrument that is exhibit to pleading is part of
pleading for all purposes); Papasan v. Allain, 478 U.S. 265, 268 n.1
(1986) (judicial notice of public records); 188 LLC v. Trinity
Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002) (documents
referred to in complaint and central to claim); Wright v. Associ-
ated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994) (same). If a
moving party relies on additional materials, the motion must
(continued...)
4 No. 11-1448
1
(...continued)
be converted to one for summary judgment under Rule 56. Fed.
R. Civ. P. 12(d).
A plaintiff, however, has much more flexibility in opposing
a Rule 12(b)(6) motion and in appealing a dismissal. A party
appealing a Rule 12(b)(6) dismissal may elaborate on his
factual allegations so long as the new elaborations are con-
sistent with the pleadings. See Chavez v. Illinois State Police,
251 F.3d 612, 650 (7th Cir. 2001); Highsmith v. Chrysler Credit
Corp., 18 F.3d 434, 439-40 (7th Cir. 1994) (reversing dismissal
in relevant part based on such new elaborations); Dawson v.
General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992) (reversing
dismissal based on new elaborations). In the district court,
too, a party opposing a Rule 12(b)(6) motion may submit
materials outside the pleadings to illustrate the facts the party
expects to be able to prove. Thomas v. Guardsmark, Inc., 381 F.3d
701, 704 (7th Cir. 2004) (denying motion to strike new materials
submitted on appeal); Early v. Bankers Life and Casualty Co., 959
F.2d 75, 79 (7th Cir. 1992) (reversing dismissal; plaintiff is free
to assert new facts in brief opposing motion to dismiss); Roe v.
Bridgestone Corp., 492 F. Supp. 2d 988, 1007 (S.D. Ind. 2007)
(“Such documents are not evidence, but they provide a way
for a plaintiff to show a court that there is likely to be some
evidentiary weight behind the pleadings the court must evalu-
ate.”). In the turmoil concerning civil pleading standards
stirred up by Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff who
is opposing a Rule 12(b)(6) or Rule 12(c) motion and who can
provide such illustration may find it prudent to do so. (It may
also be prudent to explain to the district court that the
materials are being submitted for illustrative purposes and
(continued...)
No. 11-1448 5
Geinosky sued the City of Chicago and eight of the
officers then assigned to Unit 253 under 42 U.S.C. § 1983.
He alleges “class-of-one” discrimination in violation of
the Equal Protection Clause, denial of substantive due
process rights, and an unlawful civil conspiracy. The
district court dismissed all claims on defendants’ Rule
12(b)(6) motion for failure to state a claim. We affirm
only with regard to the substantive due process claim.
The district court, relying on McDonald v. Village of
Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004), held
that Geinosky’s equal protection claim failed because
he did not specifically identify a similarly situated indi-
vidual who was treated differently. In selective inves-
tigation or prosecution cases such as McDonald, a “mean-
ingful application of the ‘similarly situated’ requirement”
serves to distinguish between constitutional claims
for discrimination and ordinary tort claims, and the
plaintiff must eventually offer evidence of a similarly
situated person. Id. But as we explain below, in a straight-
forward official harassment case like the allegations
here, forcing the plaintiff to name a person not so
severely harassed serves no such purpose (and in any
event certainly is not necessary in the complaint itself).
Are there people in Chicago who have not received
more than a dozen bogus parking tickets from the
same police unit in a short time? Geinosky could find
1
(...continued)
should not be used to convert the motion into a Rule 56
motion for summary judgment.)
6 No. 11-1448
hundreds of those people on any page of the Chicago
phone book.
We review de novo the district court’s dismissal for
failure to state a claim, presuming the truth of the
facts alleged in Geinosky’s complaint and drawing all
reasonable inferences in his favor. E.g., London v. RBS
Citizens, N.A., 600 F.3d 742, 745 (7th Cir. 2010). We
discuss each of his claims below, starting with equal
protection.
I. Equal Protection “Class-of-One”
The Equal Protection Clause of the Fourteenth Amend-
ment, ratified to help protect the equality that had been
won in the Civil War, is most familiar as a guard against
state and local government discrimination on the basis
of race, national origin, sex, and other class-based dis-
tinctions. E.g., Loving v. Virginia, 388 U.S. 1, 8-12 (1967);
see also United States v. Virginia, 518 U.S. 515, 533-34
(1996) (heightened scrutiny for legal classification based
on sex). The Equal Protection Clause has also come to
be understood to protect individuals against purely
arbitrary government classifications, even when a classifi-
cation consists of singling out just one person for differ-
ent treatment for arbitrary and irrational purposes. To
state a so-called “class-of-one” equal protection claim,
Geinosky must allege that he was “intentionally treated
differently from others similarly situated and that there
is no rational basis for the difference in treatment.”
Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601
No. 11-1448 7
(2008), citing Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000). We have held that class-of-one claims can
be brought based on allegations of the irrational or mali-
cious application of law enforcement powers. E.g., Hanes
v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009) (holding
that Engquist exemption for public employment deci-
sions does not extend to law enforcement decisions).
Although the police are necessarily afforded wide dis-
cretion in performing their duties, that discretion
does not extend to discriminating against or harassing
people. The district court correctly found that nothing
bars a properly pled class-of-one equal protection claim
in this context, but it erred when it found that
Geinosky’s pleadings were insufficient to state such a
claim.
Courts have understood that if class-of-one claims
are not defined appropriately, they might turn many
ordinary and inevitable mistakes by government officials
into constitutional violations and federal lawsuits. One
element of a proper class-of-one claim is a wrongful act
that necessarily involves treatment departing from
some norm or common practice. McDonald, 371 F.3d at
1009. But “the purpose of entertaining a ‘class of one’
equal protection claim is not to constitutionalize all
tort law nor to transform every claim for improper pro-
vision of municipal services or for improper conduct of
an investigation in connection with them into a federal
case.” Id. The appropriate limiting principle must be
tailored to the type of government action at issue.
For example, because the government traditionally
is given even more discretion in its role as employer
8 No. 11-1448
than in its role as enforcer of the law, public employees
simply do not have recourse to class-of-one claims if
they are singled out for firing. Engquist, 553 U.S. at 607
(“we are guided, as in the past, by the ‘common-sense
realization that government offices could not function
if every employment decision became a constitutional
matter’ ”). To bring an equal protection claim, public
employees aggrieved by their firing must be able to
allege and later prove discrimination against a protected
class. Under Engquist, the prohibition on class-of-one
claims in the public employment context is categorical.
In contrast, in the context of complicated government
investigations or prosecutions, we have relied on care-
ful application of the similarly-situated requirement
to distinguish between unfortunate mistakes and action-
able, deliberate discrimination. E.g., McDonald, 371 F.3d
at 1009. When the parties raise a serious question
whether differences in treatment stem from a discrim-
inatory purpose or from a relevant factual difference,
the key evidence is often what was done in the investi-
gation or prosecution of others in similar circum-
stances. The Supreme Court also relied on the similarly-
situated prong in Olech, in the context of providing munici-
pal services. 528 U.S. at 565.2
2
Several of our cases have suggested that a showing of sub-
jective ill will can be useful in distinguishing between
ordinary errors and discriminatory denials of equal protection.
E.g., Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir.
2000). The differential treatment alleged in Olech was “irrational
(continued...)
No. 11-1448 9
The district court here invoked the similarly-situated
requirement and faulted Geinosky for failing to identify
and describe any such individuals. But in this case, re-
quiring Geinosky to name a similarly situated person
who did not receive twenty-four bogus parking tickets
in 2007 and 2008 would not help distinguish between
ordinary wrongful acts and deliberately discriminatory
denials of equal protection. Such a requirement would
be so simple to satisfy here that there is no purpose
in punishing its omission with dismissal. Here, the
pattern and nature of defendants’ alleged conduct do
the work of demonstrating the officers’ improper dis-
criminatory purpose. Geinosky’s general allegation that
defendants “intentionally treated plaintiff differently
than others similarly situated” is sufficient here, where
the alleged facts so clearly suggest harassment by public
officials that has no conceivable legitimate purpose.
To require more would elevate form over substance.
Geinosky’s complaint states a class-of-one claim in light
of the pattern of unjustified harassment he has alleged.3
2
(...continued)
and wholly arbitrary,” apart from its subjective motivation,
and the Supreme Court declined to decide whether a showing
of subjective animus is required in every case. See 528 U.S. at
565. Our court recently heard argument en banc on this is-
sue. Further discussion is unnecessary here, as Geinosky’s
allegations tell a story that clearly suggests a vindictive
or harassing purpose.
3
Even in a case where a plaintiff would need to identify a
similarly situated person to prove his case, like the McDonald
(continued...)
10 No. 11-1448
Geinosky does not know for certain why he was tar-
geted. He suspects a connection between his estranged
wife and officers of Unit 253, but his case would be
just as strong if the officers picked him to harass for no
reason at all. The complaint clearly tells a story in which
Geinosky was targeted. Reason and common sense pro-
vide no answer to why he was targeted that could be
considered a legitimate exercise of police discretion.
Somewhere between the first several and the twenty-
fourth bogus tickets from officers of the same police
unit, Geinosky’s grievance rose to the level of an
actionable class-of-one discrimination claim.
We do not credit the city’s assertion that allowing
this suit will open the floodgates to a wave of ordinary
malicious prosecution (or other tort) cases brought as
constitutional class-of-one claims. The extraordinary
pattern of baseless tickets that Geinosky received will
remain rare, we trust, particularly now that the Police
Board and the courts are involved. The litigation flood-
gates should not open for the additional reason that
truly random law enforcement, as when an officer picks
3
(...continued)
case cited by the district court on this point, we see no basis
for requiring the plaintiff to identify the person in the com-
plaint. McDonald was decided on summary judgment, not on the
pleadings. See 371 F.3d at 994. Rule 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Even the more demanding pleading require-
ments under Iqbal and Twombly do not require a plaintiff to
identify specific comparators in a complaint.
No. 11-1448 11
one of many speeding cars to stop and ticket, provides
a rational basis for the selection even if the ticketed
driver feels she was unfairly singled out. Officers have
discretion for powerful reasons, not the least of which
is the impossibility of ticketing all traffic or parking
violations and the ineffectiveness of ticketing none.
Because officers must choose among violators, random
selection is certainly rational. We are not inviting every
driver with a couple of parking tickets (even invalid ones)
to sue in federal court. See Engquist, 553 U.S. at 604 (“But
allowing an equal protection claim on the ground that
a ticket was given to one person and not others, even
if for no discernible or articulable reason, would be in-
compatible with the discretion inherent in the chal-
lenged action.”).
But the pattern of conduct alleged here, as the district
court correctly wrote, “is not a legitimate exercise of
discretion.” No one has suggested, let alone demon-
strated as a matter of law, a rational and proper purpose
for the ticketing. On these unusual facts — many baseless
tickets that were highly unlikely to have been a product
of random mistakes — Geinosky’s general assertion that
other persons were not similarly abused does not
require names or descriptions in support. We reverse
the dismissal of plaintiff’s equal protection claim.
II. Civil Conspiracy
The district court also dismissed Geinosky’s section
1983 civil conspiracy allegations because they depended
on his dismissed substantive constitutional claims.
12 No. 11-1448
Because we reverse the dismissal of the equal protection
claim, we also reverse the dismissal of the dependent
conspiracy claim.
Citing Redd v. Nolan, 663 F.3d 287, 292 (7th Cir. 2011),
defendants argue that the complaint fails to allege a
conspiracy under the standards of Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009). We disagree. While the complaint
makes only rather conclusory direct allegations of con-
spiracy, the complaint also alleges a pattern of harass-
ment by several officers over a period of months. It is a
challenge to imagine a scenario in which that harass-
ment would not have been the product of a conspir-
acy. Under Twombly, all plaintiff needed to allege
was a plausible account of a conspiracy. See 550 U.S. at
556. This complaint goes well beyond that. In this
regard, the complaint here is fundamentally different
from the complaint in Redd, which contained “not a
whiff of a conspiratorial agreement.” 663 F.3d at 292.
Iqbal calls on us to apply our “judicial experience and
common sense.” 556 U.S. at ___, 129 S. Ct. at 1950. If
several members of the same police unit allegedly acted
in the same inexplicable way against a plaintiff on
many different occasions, we will not dismiss a com-
plaint for failure to recite language explicitly linking
these factual details to their obvious suggestion of col-
lusion. Geinosky’s allegations of a conspiracy among
the officers of Unit 253 to harass him by issuing
bogus parking tickets go well beyond the required
threshold.
No. 11-1448 13
Geinosky concedes that he is not seeking damages for
the first ten tickets, which were issued outside of the
applicable two-year statute of limitations period (before
March 3, 2008) by officers Hegewald, Whelehan, Reidy,
and Roque. It would be premature to dismiss those
officers from this case at this early stage. If Geinosky can
prove that they were part of a conspiracy, they can still
be held liable for the later actions of co-conspirators
that harmed the plaintiff during the limitations period.
See, e.g., In re Brand Name Prescription Drugs Antitrust
Litigation, 123 F.3d 599, 616 (7th Cir. 1997) (defendant
could be held jointly liable for later acts of co-conspirators
where it did not withdraw from conspiracy); Hoffman-
La Roche, Inc. v. Greenberg, 447 F.2d 872, 874 n.2 (7th Cir.
1971) (parties to a civil conspiracy are jointly and
severally liable for injuries to plaintiff); see also, e.g.,
Nader v. Democratic Nat’l Comm., 567 F.3d 692, 697 (D.C.
Cir. 2009) (under District of Columbia law, civil con-
spiracy is method of establishing vicarious liability for
underlying tort). Also, even if Geinosky cannot recover
damages for those discrete acts outside the limitations
period, those earlier acts may still be used to prove that
the conspiracy existed both before and during the limita-
tion period and harmed him during that period. See,
e.g., Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988); see
also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
105 (2002) (stating same rule with regard to analogous
“pattern or practice” and hostile work environment
claims). Geinosky has pled a conspiracy and discrete
actions that furthered that conspiracy both before and
during the limitations period. The district court’s
14 No. 11-1448
dismissal of Geinosky’s conspiracy claim is reversed
with regard to all defendants.4
III. Substantive Due Process
The district court correctly dismissed Geinosky’s
due process claim. Substantive due process claims can
address harmful, arbitrary acts by public officials. E.g.,
County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998).
But such claims must meet a high standard, even when
the alleged conduct was abhorrent, to avoid con-
stitutionalizing every tort committed by a public em-
ployee. Id. at 846, 854 (tactics in high-speed chase not
redressible under section 1983 even though they uninten-
tionally resulted in fleeing suspect’s death); Tun v.
Whitticker, 398 F.3d 899, 902-03 (7th Cir. 2005) (expulsion
from school not actionable). Although his allegations
of harassment are troubling, Geinosky has not pled facts
suggesting a deprivation that “shocks the conscience” in
the sense required in due process cases. See id., quoting
Rochin v. California, 342 U.S. 165, 172 (1952) (forcible
4
With regard to Officer Aguilar, the complaint alleges only
that he twice looked up the Toyota’s license plate number on
police department computers at roughly the time some of
the bogus tickets were issued. We might speculate that
perhaps he was investigating the conspiracy rather than
participating in it, but we cannot resolve the question of
Officer Aguilar’s alleged involvement on the pleadings
merely because we can imagine an innocent explanation for
the alleged actions.
No. 11-1448 15
stomach pumping to retrieve swallowed evidence was
a due process violation). We affirm the district court’s
dismissal of Geinosky’s substantive due process claim.
* * *
Law enforcement is a difficult and dangerous job and,
in the case of parking and traffic tickets, often an
especially thankless one. Society grants considerable
discretion to the public servants charged with that job,
with the understanding that limited resources and
factual nuances will require that some people are some-
times treated differently than others. But a grant of dis-
cretion is a grant of trust. If officers betray that trust
by deliberately targeting someone for harassment, that
discrimination can violate our constitution, and section
1983 provides a remedy. Plaintiff Geinosky alleged a
pattern of deliberate and unconstitutional harassment,
even though accomplished through the relatively mild
mechanism of bogus parking tickets. His First Amended
Complaint states class-of-one equal protection and civil
conspiracy claims upon which relief can be granted. The
judgment of the district court is A FFIRMED in part and
R EVERSED in part, and the case is R EMANDED for further
proceedings consistent with this opinion.
3-28-12