Moriconi v. Williamson et al
Filing
42
OPINION entered by Judge Sue E. Myerscough on 9/6/2011. Defendants' Motion to Dismiss First Amended Complaint (d/e 40) is GRANTED IN PART and DENIED IN PART. Counts III and IV are DISMISSED WITHOUT PREJUDICE. Plaintiff shall file a Second Amended Complaint on or before 9/19/2011. Defendants shall answer or otherwise plead on or before 10/3/2011. (MAS, ilcd)
E-FILED
Wednesday, 07 September, 2011 09:17:28 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAUL F. MORICONI,
Plaintiff,
v.
NEIL WILLIAMSON, Sheriff,
Sangamon County, Illinois,
TRAVIS KOESTER, Deputy
Sheriff, Sangamon County, Illinois ,
and BRAD TWERYON, Deputy
Sheriff, Sangamon County, Illinois,
and SANGAMON COUNTY,
ILLINOIS, a body politic,
Defendants.
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No. 11-3022
OPINION
SUE E. MYERSCOUGH, United States District Judge.
This cause is before the Court on the Motion to Dismiss First
Amended Complaint (Motion) (d/e 40) filed by Defendants Neil
Williamson, Sheriff, Sangamon County, Illinois; Travis Koester, Deputy
Sheriff, Sangamon County, Illinois; Brad Tweryon, Deputy Sheriff,
Sangamon County, Illinois; and Sangamon County, Illinois, a body
politic. Plaintiff, Paul F. Moriconi, has filed a response to the Motion.
For the reasons stated below, Defendants’ Motion is GRANTED IN
PART and DENIED IN PART.
I. BACKGROUND
In June 2011, this Court granted, in part, Defendants’ Motion to
Dismiss and granted Plaintiff leave to file an amended complaint. This
Court also directed Plaintiff to add Sangamon County as a party
pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948
(2003) (“a county in Illinois is a necessary party in any suit seeking
damages from an independently elected county officer. . . in an official
capacity”).
In July 2011, Plaintiff filed his First Amended Complaint. The
First Amended Complaint alleges that on July 28 and 29, 2009,
Defendants investigated a purported altercation at a tavern known as
Bootleggers in Springfield, Illinois. Upon arriving at the scene, Deputies
Koester and Tweryon told Plaintiff, who was trying to break up the
altercation, to back away from one of the participants in the altercation.
Plaintiff “allegedly failed to back up quickly enough to suit” the
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Deputies. (First Amd. Cmplt. ¶¶ 19, 36). Deputies Koester and
Tweryon then used a taser device on Plaintiff.
Plaintiff was knocked to the ground, arrested, and taken into
custody. Plaintiff alleges he was nearly killed, suffered personal injury,
emotional distress, and damage to his reputation, all of which are
permanent.
Plaintiff further alleges that “Defendant”–although it is not clear
from the Complaint which Defendant– “implemented a policy for taser
use which permitted and guaranteed the unlawful use of excessive force
and[,] alternatively[,] if the policy is considered to be reasonable[,] then
the Defendants violated the Policy.” (First Amd. Cmplt., ¶¶ 20, 37).
Plaintiff also alleges that Deputies Koester and Tweryon were not
properly trained in the use of taser devices and their conduct in using the
taser on Plaintiff violated the “Sangamon County Sheriff’s Department’s
written policies and guidelines pertaining to the use of Taser devices.”
(First Amd. Cmplt., ¶¶ 22, 39). Finally, Plaintiff alleges that Sheriff
Williamson “in his official capacity permitted and encouraged by a
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policy[,] which on its face may have appeared to be reasonable[,] the
unlawful use of tasers by his Deputies involving excessive force which
violated the Constitutional rights of Plaintiff as aforesaid.” (First Amd.
Cmplt. ¶ 88).
Counts I and II are excessive force claims brought against Deputies
Koester and Tweryon in their individual capacities. Count III is an
excessive force claim against Sheriff Williamson in his official capacity.
Count IV, as clarified by Plaintiff in his response to the Motion to
Dismiss, is not an “independent action other than indemnification from
the County of Sangamon.”
II. ANALYSIS
In their Motion, Defendants assert: (1) Counts I and II should be
dismissed because each count fails to state a claim upon which relief may
be granted; (2) Deputies Koester and Tweryon are entitled to qualified
immunity on Counts I and II; (3) Count III should be dismissed because
no unconstitutional conduct has been established and, therefore, the
Sheriff’s Department cannot be liable; and (4) Count III should be
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dismissed for failure to state a claim.1
A.
Standard of Review
A motion to dismiss under Federal Rule Civil Procedure 12(b)(6)
permits dismissal of a complaint for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). For purposes of the
motion, a court must accept as true all well-pleaded allegations contained
in the complaint and draw all inferences in the light most favorable to the
non-moving party. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529,
533 (7th Cir. 2011). To avoid dismissal for failure to state a claim, the
complaint must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). That
statement must be sufficient to provide the defendant with “fair notice”
of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1083
(7th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
Defendants also asserted that, although Sangamon County was properly
named as a party pursuant to Carver, 324 F.3d 947, Plaintiff improperly filed a
substantive count against Sangamon County. Plaintiff has clarified in his response
that Sangamon County was named only for purposes of indemnification.
1
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(2007). This means that (1) “the complaint must describe the claim in
sufficient detail to give the defendant ‘fair notice of what the . . . claim is
and the grounds upon which it rests” and (2) its allegations must
plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a “speculative level.” EEOC v. Concentra Health
Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). Plaintiff must provide
more than “boilerplate allegations” to survive the motion to dismiss.
Eckert v. City of Chicago, 2009 WL 1409707,*6 (N.D. Ill. 2009).
B.
Counts I and II State a Claim
In Counts I and II, Plaintiff alleged that Deputies Koester and
Tweryon, acting in their individual capacity, forcibly and unlawfully
utilized a taser device against Plaintiff with illegal and excessive force.
Where an excessive force claim arises in the context of an
investigatory stop or an arrest, the claim is analyzed under the Fourth
Amendment’s reasonableness standard. Graham v. Connor, 490 U.S.
386, 394 (1989). To make a successful excessive force claim, Plaintiff
must allege that a government actor used objectively unreasonable force
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that in some way restrained his liberty. Graham, 490 U.S. at 395 n. 10
(citation omitted). Whether excessive force was used is evaluated by an
"objective reasonableness" standard. Id. at 397.
Defendants assert that Plaintiff admitted he did not remove himself
from the altercation as requested by Defendants and was tasered because
he did not follow their proper instructions. According to Defendants,
Deputy Koester and Tweryon’s conduct was not unconstitutional under
those circumstances.
At this stage in the proceedings, the Court accepts as true all wellpleaded facts and draws all permissible inferences in Plaintiff’s favor.
Estate of Davis, 633 F.3d at 533. Applying that standard here, Plaintiff
alleged that despite backing away as directed, Deputies Koester and
Tweryon used a taser device on Plaintiff for not doing so quickly enough.
Plaintiff has sufficiently stated an excessive force claim. See Rhyan v.
City of Waukegan, 2010 WL 5129736, *2 (N.D. Ill. 2010) (“The
unnecessary and unprovoked usage of pepper spray can form the basis for
a Section 1983 excessive force claim”; the fact that the defendants may
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have a justification for their actions cannot be considered on a motion to
dismiss); Martin v. Special Agents, 169 F.Supp.2d 805, 808 (N.D. Ill
2001) (finding the plaintiff stated a claim for excessive force where he
alleged “that although he was physically prevented from complying with
an officer’s command to lie on the ground, the officer kicked plaintiff’s
shoulder with such force as to dislocate it”). Therefore, Defendants’
Motion to Dismiss Counts I and II for failure to state a claim is denied.
C.
At this Stage of the Proceedings, Deputies Koester and Tweryon
Are Not Entitled to Qualified Immunity on Counts I and II
Defendants also argue that Deputies Koester and Tweryon are
entitled to qualified immunity on Counts I and II. This Court disagrees
that, at this stage in the proceedings, Deputies Koester and Tweryon are
entitled to qualified immunity.
The doctrine of qualified immunity shields government officials
who perform discretionary functions from liability for civil damages so
long as their actions do not violate clearly established constitutional
rights. See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); Upton v.
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Thompson, 930 F.2d 1209, 1211-12 (7th Cir. 1991). To defeat qualified
immunity, a plaintiff must demonstrate (1) the defendant’s conduct
violated the plaintiff’s constitutional rights and (2) the violated right was
clearly established at the time of the alleged misconduct. Lewis v.
Downey, 581 F.3d 467, 478 (7th Cir. 2009).
Whether a defendant’s conduct violated a plaintiff’s constitutional
right often “hinges on the resolution of fact questions.” Id. Because of
such factual issues, a complaint is generally not dismissed pursuant to
Rule 12(b)(6) on qualified immunity grounds. Alvarado v. Litscher, 267
F.3d 648, 651 (7th Cir. 2001); see also Moran v. Stratton, 2008 WL
1722148, at *7 (C.D. Ill. 2008) (based on the allegations in the
complaint, a determination on the defendant’s claim of qualified
immunity would be premature).
Moreover, if the facts are truly as Plaintiff alleges, then no
reasonable officer would think that he would be justified in using a taser
on Plaintiff. See, e.g., Lewis v. Downey, 581 F.3d 467, 479 (7th Cir.
2009) (finding “a reasonable officer would understand that employing a
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taser gun under the version of the facts that [the plaintiff] has described
would violate the prisoner’s constitutional rights”).
Therefore, this Court finds it is premature to determine whether
Deputies Koester and Tweryon are entitled to qualified immunity.
Deputies Koester and Tweryon may renew their request for qualified
immunity later in the proceedings.
D.
Count III Fails to State a Claim
Defendants last argue that Plaintiff has failed to sufficiently allege
an official capacity claim against Sheriff Williamson. In his response to
the Motion to Dismiss, Plaintiff asserts that he sufficiently stated a claim
in Count III because he alleged that (1) Deputies Koester and Tweryon
instituted their own policy of taser use; and (2) Sheriff Williamson
instituted a policy of excessive and unlawful force in the use of tasers.
Plaintiff brought Count III against Sheriff Williamson in his official
capacity. A claim brought against an officer in his official capacity is
treated as a suit against the governmental entity of which an officer is an
agent. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); see also
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Gibson v. City of Chicago, 910 F.2d 1510, 1519 n. 14 (7th Cir. 1990)
(“An official capacity suit against a municipal official is merely another
way of asserting a claim against the municipality”). To maintain a §
1983 claim against the Sheriff’s Department, Plaintiff must demonstrate
that his constitutional rights were violated by some official policy or
custom. Monell v. Department of Social Services of City of New York,
436 U.S. 658, 694 (1978) (a local government is responsible under §
1983 “when execution of a government’s policy or custom . . . inflicts the
injury”). A plaintiff may establish an official policy or custom by
showing:
(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that,
although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a
“custom or usage” with the force of law; or (3) an allegation
that the constitutional injury was caused by a person with
final policy-making authority.
Palmer v. Marion County, 327 F.3d 588, 594-95 (7th Cir. 2003)
(citations omitted). Plaintiff has not alleged an official policy or custom
under any of these three routes.
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First, Plaintiff has not alleged an express policy that, when
enforced, caused a constitutional deprivation. Instead, Plaintiff alleges
that the taser policy was reasonable on its face. (First Amd. Cmplt. ¶
88). “A plaintiff can *** plead himself out of court if he pleads facts that
preclude relief.” Kinder v. Gas City Police Department, 2011 WL
781478, at *2 (N.D. Ind. 2011). By alleging that the taser policy was
reasonable on its face, Plaintiff essentially alleged that Deputies Koester
and Tweryon failed to follow the policy. This is insufficient to state a
claim of liability against the Sheriff’s Department. See Dandridge v.
County of Winnebago, 1996 WL 267881, at *3 (N.D. Ill. 1996)
(allegation that the defendants’ failure to follow the express policy caused
his injury was insufficient to state a claim under the express policy
theory). Moreover, “[u]nless there is an unconstitutional policy that
causes the injury, there cannot be municipal liability.” Nevinger v. Town
of Goodland, Ind., 2011 WL 2694662, at *2 (N.D. Ind. 2011).
Plaintiff also argues, in his response to the Motion to Dismiss, that
he alleged that Deputies Koester and Tweryon implemented their own
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policies for taser use which permitted and guaranteed the unlawful use of
excessive force. However, Plaintiff does not explain in his response to the
Motion to Dismiss how that would subject the Sheriff’s Department to
liability. See, e.g., Alexander v. City of South Bend, 320 F.Supp.2d 761,
780 (N.D. Ind. 2004) (noting that to maintain a suit against a municipal
entity, the plaintiff “must establish a ‘policy or custom’ attributable to
municipal policymakers”).
Second, Plaintiff has not alleged facts suggesting a widespread
custom or practice that is so well settled as to constitute a custom or
usage with the force of law. Plaintiff only alleged the one instance of
taser use by Deputies Koester and Tweryon for which Plaintiff seeks
relief. See City of Oklahoma City v. Tuttle, 471 808, 824 (1985)
(“Proof of a single incident of unconstitutional activity is not sufficient to
impose liability under Monell, unless proof of the incident includes proof
that it was caused by an existing, unconstitutional municipal policy,
which policy can be attributed to a municipal policymaker”); Graham v.
Village of Dolton, 2011 WL 43026, at *6 (N.D. Ill. 2011) (“A plaintiff’s
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own isolated experiences, however, are insufficient to state a claim for
municipal liability under a custom theory”).
Third, Plaintiff has not alleged facts suggesting that the individuals
who allegedly caused the constitutional deprivation--Deputies Koester
and Tweryon–were persons with final policymaking authority. See
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (“municipal
liability may be imposed for a single decision by municipal policymakers
under appropriate circumstances”). Moreover, as stated in McGreal v.
Ostrov, 2002 WL 1784461, at *3 (N.D. Ill. 2002):
The “policymaker” prong of Monell requires more
than the act of a policymaker. It is necessary for
the policymaker’s act to have been in conformance
with, or in the creation of, governmental rules that
have the effect of law (and then the rule must
violate the plaintiff’s constitutional rights). * * *
And, a policymaker’s decision will rarely have the
force of policy unless the decision will govern
similar issues in the future.
Plaintiff has failed to allege a claim under the third theory of municipal
liability.
Finally, although the First Amended Complaint contains some
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references to a failure to train Deputies Koester and Tweryon, Plaintiff
does not argue in his response to the Motion to Dismiss that failure to
train is a basis for liability on the part of the Sheriff’s Department.
Moreover, simply stating that the Sheriff’s Department failed to train its
police officers would be insufficient to state a claim against the Sheriff’s
Department. See Nevinger v. Town of Goodland, Ind., 2011 WL
2694662, *4 (N.D. Ind. 2011) (“Simply stating that a municipality has
failed to train its police officers cannot survive” a motion to dismiss); see
also City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (failure to
train can serve as a “basis for § 1983 liability only where the failure to
train amounts to deliberate indifference to the rights of persons with
whom the police come into contact”).
Therefore, this Court dismisses, without prejudice, Count III for
failure to state a claim. Because Count III is the only Count directed at
the Sheriff’s Department, Count IV–which is based solely on
indemnification– is also dismissed without prejudice.
III. CONCLUSION
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For reasons stated. Defendants’ Motion to Dismiss First Amended
Complaint (d/e 40) is GRANTED IN PART and DENIED IN PART.
Counts III and IV are DISMISSED WITHOUT PREJUDICE. Plaintiff
shall file a Second Amended Complaint on or before September 19,
2011. Defendants shall answer or otherwise plead on or before October
3, 2011.
ENTER: September 6, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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