Opinion
No. 99 C 4812
January 16, 2001
MEMORANDUM OPINION AND ORDER
Pending are Defendants' motions to strike and dismiss portions of Plaintiffs' Second Amended Complaint. For the reasons set forth below these motions are granted in part and denied in part.
BACKGROUND FACTS
On and prior to June 21, 1998 Margarita Foster was Defendant Officer Reggie Foster's ("Foster") wife. On and prior to June 21, 1998, Plaintiff Marisol Escobar ("Escobar") and Margarita Foster were co-workers. In the weeks and months prior to June 21, 1998 Defendant Foster was working at a bar/nightclub in Chicago called Tequila.
Sometime in May or June of 1998, Margarita Foster asked Plaintiff Escobar whether her husband, Defendant Foster, was flirting with women while working at Tequila. Margarita Foster was told that women approached Defendant Foster at Tequila because he is a police officer.
On June 21, 1998, Defendant Foster was working in uniform driving a squad car with another police officer. At the same time, Plaintiff Escobar was traveling in an automobile at or near Western and Armitage Avenues in Chicago. Without cause, Defendant Foster pulled Plaintiff Escobar's car over and asked to see her driver's license and automobile insurance. Afterwards, Plaintiff Escobar telephoned Margarita Foster to inform her that her husband Defendant Foster had pulled her over for no reason and that Defendant Foster was angry with Plaintiff Escobar. Margarita Foster called Plaintiff Escobar in response. Margarita left a voice-mail for Plaintiff and stated that she had talked to her husband and that he indicated that he was going to seek out Plaintiff. The voice on that audiotape is that of Margarita Foster.
Later, in the early hours of June 21, 1998, Plaintiff Escobar drove to a restaurant to wait for her boyfriend, Plaintiff Eric Martinez ("Martinez"). Defendant Foster, driving a squad car, made a U-turn and blocked Plaintiff Escobar's access to the restaurant. Defendant Frank Rodriguez ("Defendant Rodriguez") was with Defendant Foster at that time. Foster got out of the squad car and shouted profanities towards Plaintiff Escobar. Defendant Foster then threatened to arrest Plaintiff Escobar because she purportedly did not have a driver's license. Plaintiff Escobar explained that she did have a license and that there was no reason to arrest her. Defendant Foster then arrested Plaintiff Escobar.
Plaintiff Eric Martinez who witnessed was going on asked Defendants Foster and Rodriguez why Plaintiff Escobar was being arrested. Defendant Foster then slammed Plaintiff Martinez into a wall and placed him under arrest. Defendant Foster then deliberately hit Plaintiff Martinez's head against the squad car when arresting Plaintiff. Both Plaintiffs were taken into custody and processed at the police station. The charges against both Plaintiffs were subsequently dismissed.
In July of 1999 Plaintiffs filed their original complaint in the Circuit Court of Cook County. This case was removed on July 23, 1999. On February 28, 2000 Plaintiffs filed their First Amended Complaint. Counts I-IV, Plaintiffs' state law claims for battery, unlawful detention, malicious prosecution, and intentional infliction of emotional distress, were dismissed with prejudice against the City of Chicago ("the City") on May 3, 2000. Count VII of Plaintiffs complaint, Plaintiffs' civil rights action pursuant to § 1983, against the City of Chicago was dismissed without prejudice pursuant to this same order.
On September 5, 2000 Plaintiffs filed their Second Amended Complaint. In Count I of the Second Amended Complaint, Plaintiffs allege a claim for battery under Illinois common law against Defendant Foster. Count II alleges that the actions of Defendant Foster constituted unlawful detention under Illinois common law. Count III alleges a common law malicious prosecution claim against Defendants Foster and Rodriguez. Count IV purports to allege a claim under Illinois common law for intentional infliction of emotional distress against Defendants Foster and Rodriguez. Count V is brought under 42 U.S.C. § 1983 and alleges that Defendants Foster and Rodriguez "violated Plaintiffs rights" under the First, Fourth and Fourteenth Amendments to the United States Constitution." In Count VI, Plaintiffs allege a federal malicious prosecution claim pursuant to 42 U.S.C. § 1983 against Defendants Foster and Rodriguez. Finally, Plaintiffs bring another Section 1983 policy claim against the City of Chicago in Count VII.
DISCUSSION
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6) tests the sufficiency of the complaint, not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A dismissal for failure to state a claim is improper "unless it appears beyond a doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 785.Ct. 99, 101 (1957). The court will accept all well-pleaded factual allegations in the complaint as true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2 975 Ct. 2490, 2493 (1977). In addition, the court will construe the complaint liberally and will view the allegations in a light most favorable to the non-moving party. Craigs, Inc. v. General Electric Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993). However, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiffs claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992). At this juncture it is not a function of the court to determine whether the plaintiff will prevail, but only that plaintiff pleaded sufficient facts to proceed.
COUNT VII
Count VII of Plaintiffs' Second Amended Complaint alleges that the City deprived Plaintiffs of their constitutional rights under the First, Fourth, and Fourteenth Amendment as a result of the City's failure to properly screen hires, failure to properly train and supervise, failure to investigate complaints, failure to discipline and otherwise control officers engaged in the excessive use of force and other police abuse. Plaintiffs further allege that the City has a policy of maintaining a code of silence about police misconduct (Count VII, Pars. 31-37).
The City moves to dismiss Count VII on four independent grounds. First, the City argues that Plaintiffs' policy claim against the City is time-barred by the two year statute of limitations. Next, the City argues that Count VII is deficient because it consists of boilerplate and conclusory allegations bereft of any operative facts which give the City notice as to what the "policy" consists of or how the alleged policy was the moving force cause behind Plaintiffs' alleged constitutional injuries. Third, the City argues that Plaintiffs' policy claim is deficient because it is based on single incident rather than a custom. Finally, the City argues that Plaintiffs' policy claim should be dismissed because Plaintiffs have failed to allege the necessary elements of causation. Each of these arguments will be addressed in turn.
The City's first argument, that Plaintiffs' Section 1983 claim against the City is time barred, is insufficient as a matter of law. Initially, the City cites no case law in support of this argument. Furthermore, it is undisputed that Plaintiffs originally filed their First Amended Complaint containing Count VII well before the two-year statute of limitations expired.
Federal Rule of Civil Procedure 15(c) allows an amendment to the pleadings to relate back to the date of the original pleading when (1) relation back is permitted by the law that provides the statutes of limitations applicable to the action, or (2) the claim asserted in the amended complaint arose of out the conduct, transaction or occurrence set forth in the original pleading. Fed.R.Civ.P. 15(c). Plaintiffs clearly satisfy part (2) of Rule 15(c) because it is undisputed that Count VII arose out of the conduct, transaction and occurrence set forth in the First Amended Complaint. Count VII was dismissed against the City without prejudice. Hence, Count VII survives the City's first argument.
The City's second argument seeks dismissal of Count VII on the basis that Plaintiffs' allegations are unacceptable because they are conclusory and fail to put the City on notice as to the alleged unconstitutional policies. Consideration of this argument necessarily begins with the Supreme Court's decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S. Ct 1160, 1162 (1993), which rejected attempts to impose a heightened pleading standard for § 1983 claims and held that notice pleading is sufficient. Id. at 168, Notice pleading, however, is not synonymous with conclusory statements. As the Seventh Circuit has explained:
Although Fed.R.Civ.P. 8 does not require detailed factual pleading, a plaintiffs assertions must still direct the defendant to the factual cause of the plaintiffs' alleged injury. "Boilerplate allegations of a municipal policy, entirely lacking in any factual support that a [municipal] policy does exist, are insufficient . . . The absence of any facts to support plaintiffs claim renders the allegations mere legal conclusion of section 1983 liability devoid of any well-pleaded facts."McTigue v. City of Chicago, 60 F.3d 381, 382, quoting Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 734 (7th Cir. 1994).
Although a claimant may sue a local government unit under § 1983, the local government unit cannot be held liable under § 1983 on a respondeat superior theory for employing a tortfeasor. See Monell v. Dept. of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2118, 2035-36, 56 L.Ed.2d 611 (1978). Rather, the viability of a § 1983 action against a governmental body rests on an allegation that the execution of the local governmental body's "official policy" itself results in a deprivation of a constitutionally protected right. See Monell, 436 U.S. at 694. To state a § 1983 municipal liability claim plaintiffs must allege an "affirmative link" between the policy and the constitutional violation such that the enforcement of the policy was the "moving force" behind the violation. See Cornfield By Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993) (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436 (1985).
There are three recognized contexts where a municipality or other local governing body can be sued under § 1983:
(1) for an express policy that causes a constitutional deprivation; (2) for a widespread practice that, although not authorized by written law or express municipal policy, causes a constitutional deprivation, and is so permanent and well settled as to constitute a custom and usage with the force of law; or (3) for an allegation that the constitutional injury was caused by a person with "final policymaking authority."Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994).
Because this is a motion to dismiss, we accept as true plaintiffs well-pleaded factual allegations and draw all reasonable inference in the light most favorable to him. See Cornfield by Lewis v. School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). Plaintiffs' amended allegations can no longer be considered boilerplate because Plaintiffs direct the City to the specifics of the alleged municipal policies and customs. Here, Plaintiffs have stated that the City police department had in force and effect policies, practices, and customs which include, inter alia: (a) failure to properly screen hires, hire, train, supervise and investigate complaints against officers, and otherwise control police officers engaged in the excessive use of force and other police abuse. They have also alleged that the police department maintains a code of silence about police misconduct. Plaintiffs also allege that the City fails to adequately keep records of misconduct and fails to properly discipline officers who use excessive force (Count VII, Pars. 31-37). These acts if found to be true could possibly raise an inference that the City's policy making officials had knowledge of unconstitutional conduct and possibly ratified it by acquiescence. Thus, the City's second argument is insufficient as a matter of law to warrant dismissal of Count VII.
The City's third argument puts forth that dismissal is warranted because this is a single incident of the claimed constitutional deprivation. Generally a single instance such as the one described in Plaintiffs' complaint is not enough to state a claim under § 1983 unless "the evidence that the municipality had acted and that the plaintiff had suffered a deprivation of federal rights also prove[s] fault and causation." Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 1389 (1997). This "rigorous" standard for liability and causation "ensure[s] that the municipality is not held liable solely for the actions of its employees." Id. Thus, a complaint based on a claim that a municipal policymaker specifically directed the action resulting in the deprivation of the plaintiffs rights can be properly attributed to the municipality even if the action was tailored to a particular situation and was not intended to control decisions in later situations. Id. at 406. On the other hand, the decision of a single employee to engage in conduct which results in the deprivation of the plaintiffs rights is, by itself, not enough to allege a custom or practice against a municipality. Id.
While Plaintiffs have not alleged that the City's police department specifically directed Defendants Foster and Rodriguez to engage in the complained of conduct Plaintiffs have alleged that the City's policies allows officers to engage in misconduct with a sense of, if not actual impunity. We find for purposes of this motion to dismiss that these allegations save Plaintiffs' claim. Admittedly, it is a close determination because we certainly could be dealing with an isolated incident resulting from the relationship of Plaintiff Escobar with Defendant Foster's wife, but for purposes of this motion to dismiss it is sufficient. As set forth in Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 480 (7th Cir. 1997) it would be error to dismiss the action against the City solely on the pleadings.
The City's fourth argument in support of dismissal of Count VII puts forth that Plaintiffs' policy claim fails to allege that its actions or inactions were a proximate cause of Plaintiffs' damages. The City also asserts that "Plaintiffs do not allege that the City was deliberately indifferent to the plainly obvious consequence of the constitutional injury sustained by Plaintiffs," as required by Bryan County. For pleading purposes, we find that paragraphs 29-37 of Plaintiffs' Second Amended Complaint set forth sufficient facts to satisfy the pleading requirements regarding causation for purposes of this motion to dismiss.
COUNTS III AND VI
Count III of Plaintiffs' Second Amended Complaint sets forth a common law malicious prosecution claim against Defendants Foster and Rodriguez. Count VI sets forth a malicious prosecution claim against both Defendants under 42 U.S.C. § 1983. On March 29, 2000 Plaintiffs voluntarily dismissed Counts II, III and IV of their First Amended Complaint against Defendant Rodriguez. In Plaintiffs' Second Amended Complaint Count III continues to reference Officer Rodriguez. Because he was voluntarily dismissed by Plaintiffs and Plaintiffs have set forth absolutely no new facts or argument as to why Officer Rodriguez is being renamed in Count III we assume this pleading is in error. Therefore, Officer Rodriguez' motion to strike as to Count III is granted. Defendants argue that Plaintiffs have not alleged sufficient conduct by Defendants Foster and Rodriguez to support a malicious prosecution claim under common law and federal law against them because Counts III and VI consist of conclusory paragraphs alleging that Defendants conduct constitutes malicious prosecution.
To state a claim for malicious prosecution under Section 1983, a plaintiff must demonstrate that: (1) he has satisfied the requirements of a state law cause of action for malicious prosecution; (2) the malicious prosecution was committed by state actors; and (3) he was deprived of liberty. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996) ( citing Smart v. Board of Trustees of the University of Illinois, 34 F.3d 432, 434 (7th Cir. 1996). Under Illinois law, plaintiff must allege that (1) the defendant commenced or continued judicial proceedings; (2) the proceedings ended in plaintiff's favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously in initiating or continuing the proceeding; and (5) plaintiff suffered injuries. Washington v. Summerville, 127 F.3d 552, 557 (7th Cir. 1997). The City relies on Sneed v. Rybicki, 146 F.3d 478 (7th Cir. 1998), Reed v. City of Chicago, 77 F.3d 1049 (7th Cir. 1996), Albright v. Oliver, 114 S.Ct. 807, 811 (1994) and Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir. 1997), cert. denied, 523 U.S. 1073 (1998) to support its position that dismissal of these two Counts is warranted.
In Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir. 1998), the Seventh Circuit upheld the dismissal of a Section 1983 claim for malicious prosecution because Sneed had plead only false arrest:
To plead malicious prosecution he must allege more than he was arrested without probable cause and eventually convicted. He must do more than state conclusively that the defendants maliciously prosecuted him. He must allege some action that supports the conclusion that a malicious prosecution occurred. Sneed has not done this. He has not alleged that the "detective gave perjured testimony," or "falsified any information or evidence." Nor did he allege that the police withheld exculpatory evidence. Sneed made no allegations of police wrongdoing after his arrest.Id. at 481.
Similarly, in Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996), the Court held that Reed failed to state a claim for malicious prosecution under Section 1983 where he alleged that defendants lacked probable cause to arrest and charge him with murder and that the defendants testified before the grand jury and at the hearing on the motion to quash. The Seventh Circuit noted that Reed did not allege that the defendants gave perjured testimony or falsified any information. Because there were no allegations of improper acts after Reed's arrest, the Court concluded that Reed failed to state a malicious prosecution claim. In Washington v. Summerville 127 F.3d 552 (7th Cir. 1997) the Seventh Circuit affirmed the dismissal of a malicious prosecution claim even though the plaintiff alleged that the police officers "conspired to fill out false and incomplete statements and reports," to use the statement and reports to charge, imprison, and prosecute plaintiff, to give false testimony at the grand jury and at his motion to suppress hearing, and to conceal all the misconduct. Washington alleged that the officers did not note his illegal arrest and coerced confession in their reports nor did they testify about the illegal arrest and coerced confession.
In sharp contrast to Sneed and Reed, Plaintiffs have alleged that they were falsely charged with disorderly conduct and these charges were later dismissed. Furthermore, after her arrest Plaintiff Escobar received a traffic ticker for purportedly blocking access. Whether these charges were dismissed or stricken with leave to reinstate as the City argues is unclear. However, this factual dispute is not one suitable for purposes of this motion to dismiss. In addition, the City fails to cite any case law to support their argument that a criminal case that has been stricken with leave to reinstate cannot form the basis for a malicious prosecution claim under Illinois or federal law.
Unlike Washington, Plaintiffs have alleged that Defendants Foster and Rodriguez initiated and pursued criminal proceedings against them rather than simply effectuating an arrest. Plaintiffs allege that they were falsely arrested initially and even after their arrest Plaintiff Escobar was subsequently ticketed with a false charge.
Obviously, Counts III and VI set forth facts not only as to whether Defendants Rodriguez and Foster wrongfully arrested and charged Plaintiffs, but also as to whether they covered up their misconduct, drafted false arrest reports, and wrongfully initiated and pressed charges. It bears keeping in mind that these two Defendants were the motivating force and only complaining witnesses in the charges against the two Plaintiffs and these charges were ultimately dismissed. See Cervantes v. Jones, 188 F.3d 805, 809-10 (7th Cir. 1999), cert. denied 120 S.Ct. 1159 (2000). Moreover, the City's arguments that allegations relating to Assistant Corporation Counsel Bode and Marsh should be stricken is moot because nowhere in the Second Amended Complaint are these references made to these two Corporation Counsels. Finally, the motion to strike as to the statement "plaintiffs produced an audiotape of this voice-mail to assistant Corporation Counsel Dawn Bode and Russell Marsh" is no longer found in the Second Amended Complaint and is also moot. Therefore, defendants' motion to dismiss counts III and VI is denied.
FIRST AMENDMENT CLAIMS
Defendant's final argument with respect to Counts V, VI and VII puts forth that Plaintiffs' First Amendment claims should be dismissed. We agree. In this case, Plaintiff Martinez alleges that he asked why Plaintiff Escobar was being arrested and placed under arrest. Plaintiff Martinez claims that this is political expression that strikes at the heart of the First Amendment citing Bennett v. Village of Oak Park, 749 F. Supp. 1329 (N.D. Ill. 1990). We find that Plaintiffs have insufficiently set forth any case law to support their argument that the conduct involved here violates the First Amendment. The case Plaintiff cites Bennett v. Village of Oak Park does not exist at 749 F. Supp. 1329.
CONCLUSION
For the reasons set forth above the City of Chicago motion to dismiss and strike plaintiffs' Second Amended Complaint is granted in part and denied in part (#68-1). Defendants Rodriguez's and Foster's motions to dismiss and strike are granted in part and denied in part (##24-1, 24-2, 28-1, and 28-2).