Opinion
Case No. 02 C 8406.
October 27, 2004
MEMORANDUM OPINION AND ORDER
In this case brought under 42 U.S.C. § 1983, defendant Chicago Police Detective Matthew Weber ("Weber") has moved to dismiss the six-count second amended complaint filed by plaintiff, Terrance Smith ("Smith"). In response to Weber's arguments, Smith has conceded that his claims in Count II (arrest without probable cause in violation of the Fourth and Fourteenth Amendments), Count IV (respondeat superior liability on the part of the City of Chicago for the willful and wanton shooting of Smith by Weber) and Count V (respondeat superior liability on the part of the City of Chicago for expressly authorizing Weber to use excessive force) are barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Although Smith did not respond to Weber's arguments concerning the applicability of Heck to Count VI of the complaint, which alleges that Weber and the City of Chicago maliciously abused the criminal process against Smith and falsely arrested and falsely imprisoned Smith, Smith now states that he wants to proceed with Count I of his second amended complaint only. Thus, the court will address only the arguments pertaining to Count I.
In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.512 U.S. at 486-487, 114 S. Ct. at 2372 (emphasis in original).
Neither party addressed Count III of Smith's second amended complaint, which alleges that it is the policy and practice of the City of Chicago to authorize certain officers, including defendant Weber, to use unauthorized and excessive force, in violation of Smith's constitutional rights against unlawful seizure pursuant to the Fourth and Fourteenth Amendments. (Pl. Second Amended Complaint at ¶¶ 32-34). This is presumably because Count III is alleged against the City of Chicago only. Although Corporation Counsel represents Weber, she has not appeared on behalf of the City and it appears that the City of Chicago has never been served with a copy of the summons and complaint. The file reflects that Weber may not have provided the Marshal's Service a summons and a copy of the complaint for the City.
In Count I, Smith alleges that (1) Weber used excessive force and unreasonably seized Smith in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution during the course of the arrest that occurred on January 22, 2002. Smith alleges that he was unarmed and attempting to remove himself from the area of a shooting outside of the Epitome Nightclub (E-2) when Weber shot him from behind. The court's jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). For the reasons stated herein, the court grants Weber's motion to dismiss [#21] without prejudice to Smith's filing a third amended complaint.
This arrest gave rise to the charges that were challenged in the now-abandoned counts of the Second Amended Complaint. On March 15, 2004, Smith was found guilty of aggravated discharge of a firearm in the direction of another person or in the direction of a vehicle he knows or reasonably should know to be occupied by a person; aggravated unlawful use of a weapon; and unlawful use or possession of a weapon by a felon. A district court may take judicial notice of matters in the public record without converting a 12(b)(6) motion into a motion for summary judgment. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994).
MOTION TO DISMISS STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Ass'n, 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in favor of the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999); Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996).
DISCUSSION
Weber argues that Smith has failed to state a claim of excessive force under the Fourth Amendment in Count I because the allegations in Smith's second amended complaint, that he was unarmed and did not pose a threat of death or grievous bodily injury to anyone and that Weber lacked probable cause (Pl. Second Amended Complaint at ¶¶ 18-21), are contrary to the convictions and therefore are under Heck doctrine an impermissible attack on his convictions. In response, Smith acknowledges the impropriety of such allegations in light of Heck and requests that the court allow him leave to file a third amended complaint in accordance with Heck. Smith contends that whether Weber used reasonable or unreasonable force on January 20, 2002 is still a proper issue before this court. See Robinson v. Doe, 272 F.3d 921 at 923 (7th Cir. 2001) ("Police might well use excessive force in effecting a perfectly lawful arrest. And so a claim of excessive force in making an arrest does not require overturning the plaintiff's conviction even though the conviction was based in part on a determination that the arrest itself was lawful.") (citations omitted). Although plaintiff's convictions are significant obstacles to his ultimate proof, the court agrees with plaintiff that the facts do not foreclose a claim of excessive force.
Smith also has conceded that he improperly relied upon the Fourteenth Amendment as the basis for his claim of excessive force against Weber in Count I. See Graham v. Connor, 490 U.S. 386 at 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (" all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach.") (emphasis in original).
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its complaint with leave of court, and leave to amend should be "freely given when justice so requires." Fed.R.Civ.P. 15(a). The court "need not allow an amendment when there is undue delay, dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile." Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001), citing Foman v. Davis, 371 U.S. 178, 182 (1962). However, delay is not a sufficient basis for denial of leave to amend unless the delay has caused the opposing party undue prejudice. Textor v. Board of Regents, 711 F.2d 1387, 1391 (7th Cir. 1983). "Generally, `the grant of leave to amend . . . is within the discretion of the trial court.'" Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995), quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971).
Since Weber has not responded to Smith's request for leave to file a third amended complaint, no undue prejudice to Weber is apparent from the delay, and Rule 15(a) requires that leave to amend be freely given, the court grants Smith leave to file a third amended complaint.
CONCLUSION
For the reasons stated above, the court GRANTS Weber's motion to dismiss Smith's second amended complaint [#21] WITHOUT PREJUDICE to Smith's filing a third amended complaint in accordance with this opinion by November 8, 2004. Weber is given until November 29, 2004 to plead or otherwise respond to the third amended complaint. Plaintiff is given until November 8, 2004, to show cause why the claims against the City of Chicago should not be dismissed pursuant to Rule 4(m), Fed.R.Civ.P. This case will be called for a status hearing on November 8, 2004 at 9:30.