Parker v. City of Quincy et al
Filing
13
OPINION denying 7 Defendant's Motion to Dismiss for Failure to State a Claim. Count I of the Plaintiff's complaint states a substantive due process claim based on Defendant's actions. Counts II and III causes action recognized by Illinois law. Defendants have 14 days from the date they receive a copy of this Order to filed a response to Plaintiff's Complaint. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 03/30/2017. (SKN, ilcd)
E-FILED
Friday, 31 March, 2017 08:32:45 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARY PARKER,
Plaintiff,
v.
CITY OF QUINCY, ILLINOIS, a
Municipal Corporation, and
TERRY HAGAN,
Defendants.
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Case No. 16-cv-03064
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Defendants City of Quincy, Illinois, a
municipal corporation, and Terry Hagan’s Motion to Dismiss (d/e
7). Defendants’ Motion to Dismiss is DENIED. Although Count I of
Plaintiff’s Complaint does not state a procedural due process claim
upon which relief can be granted pursuant to 42 U.S.C. § 1983, the
allegations in Count I, taken as true, do state a cognizable
substantive due process claim based on the alleged actions of
Defendant Terry Hagan. Further, Counts II and III of Plaintiff’s
Complaint allege causes of action recognized by Illinois law, claims
over which this Court has supplemental jurisdiction.
Page 1 of 60
I. BACKGROUND
The following facts come from Plaintiff’s Complaint (d/e 1).
The Court accepts them as true at the motion to dismiss stage.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
In late 2010 or early 2011, Plaintiff began dating Tracy
Malone, a resident of Chicago, Illinois, after meeting him at a party
in Quincy, Illinois. During their relationship, Malone mentally
abused Plaintiff through control and violence. On one occasion,
Malone damaged Plaintiff’s car by kicking it. Because of Malone’s
actions, Plaintiff prohibited him from spending the night at her
apartment or being inside her apartment when she was not present.
Due to these restrictions, Malone stayed in the apartment of
Plaintiff’s downstairs neighbor when he came to Quincy to visit
Plaintiff.
On or about May 17, 2011, Malone physically attacked
Plaintiff. He poked Plaintiff in the eye, pushed her to the ground,
and punched and kicked her in the ribs. He also prevented Plaintiff
from calling 911 by grabbing her phone and running into the
apartment of Plaintiff’s downstairs neighbor. Plaintiff went to the
hospital for treatment of the injuries she suffered in the attack.
Page 2 of 60
After leaving the hospital, Plaintiff went to the Quincy Police
Department (QPD) and reported Malone’s attack to Officer David
Distin.
Later that night, after Plaintiff had returned home, Malone
broke into Plaintiff’s apartment and screamed, “Bitch, if I can’t have
you nobody can. I’m going to kill you.” Malone strangled Plaintiff
until she went limp. Upon leaving Plaintiff’s apartment, Malone
was met by Officer Distin and another officer, who had arrived to
arrest Malone for attacking Plaintiff earlier that day. The officers
arrested Malone, who was subsequently charged with home
invasion, aggravated domestic battery, theft, and domestic battery.
At some point after Malone’s May 2011 arrest, Plaintiff
discovered that she was pregnant with Malone’s child. On January
19, 2012, Plaintiff gave birth to T.M., her second child and first with
Malone.
Approximately four months earlier, on September 8, 2011,
Malone pleaded guilty to theft and domestic violence charges
stemming from the incident on May 17, 2011, and was sentenced to
four years in the Illinois Department of Corrections (IDOC). Malone
was released from prison on or about May 17, 2013. Several
Page 3 of 60
months earlier, in early 2013, Plaintiff and her two children moved
from an apartment to a nearby house.
In July 2013, Malone came to Quincy to help take care of T.M.
and Plaintiff’s other minor child, I.P., while Plaintiff served a 10-day
sentence of work release for driving on a suspended license. During
this visit, Malone entered Plaintiff’s residence and read her personal
letters and other private communications, the content of which
caused Malone to become jealous and extremely angry. Malone
threatened to physically harm Plaintiff. As a result, Plaintiff again
told Malone that he was not to be in her residence when she was
not there.
During a subsequent visit to Quincy by Malone, Plaintiff asked
him to watch her children while she went out with friends. Malone
later arrived at Plaintiff’s residence with the children and Plaintiff’s
mother. Malone demanded that Plaintiff take the children out with
her. When Plaintiff agreed to do so, Malone became angry, slashed
one of the tires on Plaintiff’s car, shoved Plaintiff to the ground, took
her cell phone and car key, and left. Plaintiff borrowed her cousin’s
car to meet her friends. When Plaintiff returned home, she found
that all four of the tires on her car had been slashed and that a flat
Page 4 of 60
screen television in her residence had been smashed. Plaintiff
called the police to report the damage. The next day, Plaintiff
discovered that someone had damaged her car by scratching the
paint with a key. She again called the police to report the damage.
The police attempted to locate Malone but discovered that he had
already taken the train back to Chicago.
On January 29, 2014, Plaintiff filed a Complaint for Child
Support against Malone in Adams County, Illinois. On March 13,
2014, a court order was entered in that case requiring Malone to
pay Plaintiff $170 per month toward the support of T.M. On
October 31, 2014, an arrest warrant was issued for Malone due to
his failure to appear, as ordered, before the Adams County judge
handling the case.
On February 6, 2015, Malone came to Quincy for a visit. The
following day, Malone screamed at Plaintiff at her mother’s house
because he was angry about posts on Plaintiff’s Facebook page. A
similar altercation occurred at Plaintiff’s mother’s house on
February, 8, 2015, during which Malone, who had been drinking
and appeared intoxicated, threatened to enter Plaintiff’s residence
and destroy her property. In response, Plaintiff, after dropping her
Page 5 of 60
children off at her aunt’s house, drove to her own house and put
certain electronics in her car so that Malone could not destroy
them. After returning to work, Plaintiff called 911 and reported
Malone’s threat to enter her house and destroy her property. She
informed the 911 dispatcher that she would call back when she
decided whether she wanted to meet with the police.
Around 90 minutes after Plaintiff’s 911 call, Malone left a
voicemail on Plaintiff’s cell phone that stated, “Bitch, I’m here. I’m
waiting.” Plaintiff did not listen to the voicemail at the time Malone
left it. About five minutes after Malone left the voicemail, the 911
dispatcher called Plaintiff and left a voicemail asking if she wanted
police assistance. Plaintiff called the dispatcher fifteen minutes
later, informed the dispatcher that she was at work, and reiterated
Malone’s threat to break into her house and destroy her property.
Plaintiff also informed the dispatcher that her work shift ended at
10:45 p.m. and that she wanted a police officer to go by her house
before then to ensure that Malone, who was not authorized to be
inside her house, was not there. Immediately after Plaintiff’s call,
the dispatcher conducted a computer check on Malone which
revealed that he had an active warrant for his arrest that had been
Page 6 of 60
issued due to Malone’s failure to appear in court.
At approximately 9:55 p.m. on February 8, 2015, Defendant
Terry Hagan, an officer with the QPD, arrived at Plaintiff’s house
and requested immediate backup after discovering that someone
was inside. Another officer was dispatched to the scene in response
to Defendant Hagan’s request. Defendant Hagan knocked on the
door of Plaintiff’s house. Malone came outside while talking on his
cell phone and smoking a marijuana blunt and told Defendant
Hagan that he had been living at Plaintiff’s house for the last year.
Defendant Hagan arrested Malone for misdemeanor possession of
marijuana and pursuant to the outstanding warrant for his arrest.
Defendant Hagan did not request a criminal history or a Law
Enforcement Automated Data System (LEADS) check on Malone,
which would have revealed Malone’s prior conviction for domestic
battery against Plaintiff and subsequent prison sentence. At the
time he arrested Malone, Defendant Hagan did not enter Plaintiff’s
house or make a cursory search to determine whether there was
any indication of unauthorized or forced entry, which would have
revealed that the door at the northeast corner of Plaintiff’s house
was broken. Defendant Hagan did not call Plaintiff to inform her
Page 7 of 60
that Malone was in her home or to determine the veracity of
Malone’s statement regarding his residency there.
Plaintiff, still at work, received a call from her mother
informing her that Malone had been arrested at Plaintiff’s house,
was in jail, and would be released on bond soon. Plaintiff called the
QPD to verify what her mother had told her. Plaintiff expressed her
concern that Malone was going to come to her house and kill her
after he was released. She requested that a police officer be present
at her house when she got home from work.
Defendant Hagan was present at Plaintiff’s house when
Plaintiff arrived. Plaintiff asked Defendant Hagan how Malone had
entered her house earlier that day; Defendant Hagan stated that he
did not know and that Malone had come to the door when he
knocked. Plaintiff, who was upset and crying, told Defendant
Hagan that Malone was going to hurt her once he got out of jail.
She tried several times to convince Defendant Hagan that she was
in danger.
While at her house with Defendant Hagan, Plaintiff, for the
first time, listened to the voicemail message Malone left on her cell
phone earlier that night. She played the voicemail for Defendant
Page 8 of 60
Hagan, who told Plaintiff that he would include information about
the voicemail in his report but stated that there was nothing else he
could do. After discovering the broken door in her house and
showing it to Defendant Hagan, Plaintiff asked Defendant Hagan if
he could arrest Malone for an offense that would prevent him from
being released on bond. Defendant Hagan responded that he would
include the additional information in his report and “look into it.”
Plaintiff’s mother arrived at Plaintiff’s house while Defendant
Hagan was still present. Plaintiff’s mother confirmed to Defendant
Hagan that Malone did not reside at Plaintiff’s house. Plaintiff
again told Defendant Hagan that Malone would return to her house
and hurt her after Defendant Hagan left. Defendant Hagan assured
Plaintiff that she would be safe and that he would be patrolling the
area. After watching Plaintiff prop a chair against the broken door
of her house in an attempt to secure it, Defendant Hagan left.
Around midnight on February 9, 2015, Plaintiff picked up her
two children from her aunt’s house and returned home. At around
2:30 a.m., Plaintiff heard a noise downstairs and footsteps on the
stairs. Malone burst into Plaintiff’s bedroom, where Plaintiff’s two
children were sleeping with Plaintiff in bed, and said, “Bitch, I’m
Page 9 of 60
gonna kill you.” Malone proceeded to stab Plaintiff 34 times before
running away. Plaintiff was able to call 911 and was transported to
the hospital. In addition to the 34 stab wounds, she suffered a
collapsed lung and internal bleeding. She underwent surgery,
requiring three blood transfusions, and survived Malone’s vicious
attack.
After being discharged from the hospital, Plaintiff was unable
to take care of herself or her children, and she needed around-theclock assistance until late March 2015.1 Plaintiff was prescribed
narcotic pain medication for her physical injuries. In addition,
Plaintiff suffered from extreme anxiety and depression, later
diagnosed as post-traumatic stress disorder (PTSD), and she
received both counseling and psychoactive medication as a result of
these mental and emotional issues.
On March 9, 2016, Plaintiff filed a three-count Complaint
against Defendants. Count I of Plaintiff’s Complaint is a claim
brought under 42 U.S.C. § 1983 against Defendant Hagan alleging
Although Plaintiff references only the month in her Complaint, the Court
notes that Plaintiff can only be referring to late March 2015, as Malone’s attack
occurred in February 2015 and Plaintiff’s Complaint was filed on March 9,
2016.
1
Page 10 of 60
that he violated Plaintiff’s constitutional right to due process.2
Count II is a state-law claim against Defendant Hagan alleging
willful and wanton misconduct in violation of the Illinois Domestic
Violence Act of 1986. Count III is a state-law claim against the City
of Quincy, Illinois, alleging that it is liable for the willful and wanton
misconduct of Defendant Hagan pursuant to the doctrine of
respondeat superior. On March 31, 2016, Defendants filed their
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, arguing, with respect to Plaintiff’s § 1983 claim,
that Plaintiff has failed to allege facts sufficient to plead a
constitutional violation and that Defendant Hagan is entitled to
qualified immunity. Defendant argues, with respect to Plaintiff’s
state law claim against Defendant Hagan, that the claim is barred
by the applicable statute of limitations. Defendant further argues
Although Plaintiff references her rights under the Equal Protection Clause in
paragraphs 94 and 96 of Count I of her Complaint, she has clarified that her §
1983 claim is intended to be based on alleged due process violations.
Response and Memorandum of Law in Opposition to Defendants’ Motion to
Dismiss (d/e 9), pp. 4-5. The Court notes briefly that Plaintiff’s Complaint is
insufficient to state a cognizable § 1983 claim based on equal protection
grounds. To state such a claim, a plaintiff must allege that “a state actor
purposefully discriminated against him because of his identification with a
particular (presumably historically disadvantaged) group.” Sherwin Manor
Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994). Plaintiff’s
Complaint is devoid of any allegations that Defendant Hagan purposely
discriminated against her because she is a woman or a member of any other
historically disadvantaged group.
2
Page 11 of 60
that because the claims against Defendant Hagan are deficient,
Plaintiff’s claim against the City of Quincy, Illinois, is likewise
deficient because it is based on vicarious liability, a theory of
liability that, in any event, does not apply to § 1983 claims.
II. JURISDICTION
This Court has original jurisdiction over Plaintiff’s due process
claim brought under 42 U.S.C. § 1983 because it is a claim to
“redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States.” 28
U.S.C. § 1343(a)(3); see also 28 U.S.C. § 1331 (“The district courts
shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”). Further, this
Court has supplemental jurisdiction over Plaintiff’s state-law claims
because those claims and Plaintiff’s § 1983 claim “form part of the
same case or controversy.” 28 U.S.C. § 1367(a).
III. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes
a motion to dismiss if a complaint fails “to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion
Page 12 of 60
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). Plausibility means alleging factual
content that allows a court to reasonably infer that the defendant is
liable for the alleged misconduct. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). A plaintiff’s complaint must
suggest a right to relief, “raising that possibility above a speculative
level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016).
When faced with a Rule 12(b)(6) motion to dismiss, the Court
“accept[s] as true all of the well-pleaded facts in the complaint and
draw[s] all reasonable inferences in favor of the plaintiff.” Roberts
v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal
conclusions and conclusory allegations merely reciting the elements
of the claim are not entitled to this presumption of truth.”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
The Court is “not obliged to ignore any facts set forth in the
complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc.
v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).
Page 13 of 60
IV. ANALYSIS
A.
Count I of Plaintiff’s Complaint States a Cognizable
Due Process Claim Under 42 U.S.C. § 1983.
Federal law imposes liability on “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution.” 42 U.S.C. § 1983. In order to state a cognizable §
1983 claim, the plaintiff “must assert the violation of a federal
right.” Golden State Transit Corp. v. City of Los Angeles, 493 U.S.
103, 106 (1989). The plaintiff must also assert that the person who
violated his rights acted under color of state law. Gomez v. Toledo,
446 U.S. 635, 640 (1980). Plaintiff claims that Defendant Terry
Hagan violated her due process rights both through his actions and
omissions on February 8, 2015. Because Plaintiff’s allegations can
be read as alleging violations of both her substantive and
procedural due process rights, the Court will discuss both claims
below. Although Count I of Plaintiff’s Complaint does not state a
cognizable procedural due process claim, Count I does state a
Page 14 of 60
cognizable cause of action under 42 U.S.C. § 1983 based on an
alleged violation of Plaintiff’s substantive due process rights.
1. Plaintiff’s factual allegations are sufficient to state a claim
against Defendant Hagan for violating Plaintiff’s substantive
due process rights.
Generally, “a State’s failure to protect an individual against
private violence simply does not constitute a violation of the Due
Process Clause.” DeShaney v. Winnebago Cnty. Dept. of Social
Servs., 489 U.S. 189, 197 (1989); see also Bond v. Atkinson, 728
F.3d 690, 693 (7th Cir. 2013) (“[T]he Constitution does not
guarantee mistake-free law enforcement.”). This general rule is
based on the fact that the purpose of the Due Process Clause “was
to protect the people from the State, not to ensure that the State
protected them from each other.” DeShaney, 489 U.S. at 196.
Indeed, “nothing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of its
citizens against invasion by private actors.” Id. at 195. In
DeShaney, the Supreme Court held that State actors did not violate
a child’s substantive due process rights by failing to remove the
child from his father’s care despite having reason to believe that the
father had abused the child on multiple occasions. Id. at 192-93,
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201.
The general rule that a State does not violate a person’s
substantive due process rights by failing to protect that person from
private violence is not absolute, however. Two exceptions exist.
The first exception applies when the State has a “special
relationship” with the person harmed, such as “a custodial
relationship that cuts off alternative avenues of aid.” D.S. v. E.
Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015).
Because Defendant Hagan did not, in any way, limit Plaintiff’s
ability to leave her house, seek refuge in a shelter, seek an
emergency order of protection against Malone, or otherwise protect
herself from Malone, the “special relationship” exception does not
apply to Plaintiff’s § 1983 claim. See DeShaney, 489 U.S. at 200
(“The affirmative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from its expressions of
intent to help him, but from the limitation which it has imposed on
his freedom to act on his own behalf.”).
The second exception to the general rule that a State does not
violate a person’s substantive due process rights by failing to
protect that person from private violence, the “state-created danger”
Page 16 of 60
exception, applies “when a state actor’s conduct creates, or
substantially contributes to the creation of, a danger or renders
citizens more vulnerable to a danger that [sic] they otherwise would
have been.” E. Porter Cnty. Sch. Corp., 799 F.3d at 798 (internal
quotation marks omitted). This exception is a narrow one. Flint v.
City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015); see also Doe v.
Village of Arlington Heights, 782 F.3d 911, 917 (7th Cir. 2015)
(noting that the cases in which the Seventh Circuit has “either
found or suggested that liability attaches under the ‘state-created
danger’ exception are rare and often egregious”).
To state a claim under the “state-created danger” exception, a
plaintiff must allege that “(1) defendants, by their affirmative acts,
created or increased a danger to the plaintiff; (2) defendants’ failure
to protect the plaintiff from that danger proximately caused
plaintiff’s injuries; and (3) defendants’ failure to protect the plaintiff
‘shocks the conscience.’” Flint, 791 F.3d at 770. The first
requirement—that State action created or increased a danger to the
plaintiff—“must not be interpreted so broadly as to erase the
essential distinction between endangering and failing to protect.”
Sandage v. Bd. of Comm’rs of Vanderburgh Cnty., 548 F.3d 595,
Page 17 of 60
599 (7th Cir. 2008); see also id. (“If all that were required was a
causal relation between inaction and harm, the rule of DeShaney
would be undone . . . .”). In order to increase a risk of private
violence so as to be liable to the victim for her injuries, the State
must do something to transform “a potential danger into an actual
one,” rather than just standing by and doing nothing to prevent
private violence. Id. at 600. In determining whether a danger has
been created or increased, the two relevant questions are (1) what
affirmative acts did the State take, and (2) what dangers would the
plaintiff have faced had the State not taken those actions. Wallace
v. Adkins,115 F.3d 427, 430 (7th Cir. 1997). This second inquiry
requires a comparison of the danger the plaintiff faced after the
State’s affirmative acts with the danger the plaintiff faced before
those acts were taken, not with the danger that the plaintiff would
have faced had the State done what the plaintiff expected it to do.
Id. (“However, the question is not what dangers [the plaintiff] would
have faced had the prison officials behaved as he wanted them to,
but what dangers he would have faced absent the affirmative acts
actually taken.”). The third requirement of the “state-created
danger” exception—that the State’s failure to protect the plaintiff
Page 18 of 60
“shocks the conscience”—is “an attempt to quantify the rare ‘most
egregious official conduct’ required for substantive due process
liability.” Flint, 791 F.3d at 770.
The allegations in Count I of Plaintiff’s Complaint regarding
Defendant Hagan’s conduct are sufficient at this stage to invoke the
“state-created danger” exception to the general rule set forth by the
Supreme Court in DeShaney— that a State does not violate a
person’s substantive due process rights by failing to protect that
person from private violence. But before the Court details why
Count I of Plaintiff’s Complaint survives Defendants’ Motion to
Dismiss, the Court must first explain why certain allegations in
Count I have no bearing on the Court’s analysis. A substantive due
process violation by Defendant Hagan requires an affirmative act on
his part. Flint, 791 F.3d at 770. Consequently, Defendant Hagan
would not have violated Plaintiff’s substantive due process rights if
he had chosen not to show up at her house on February 8, 2015,
despite having knowledge of Malone’s prior attacks on Plaintiff and
his recent threats to break into her house and destroy her property.
See DeShaney, 489 U.S. at 201 (“While the State may have been
aware of the dangers that Joshua faced in the free world, it played
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no part in their creation, nor did it do anything to render him any
more vulnerable to them.”). It follows that a substantive due
process claim against Defendant Hagan cannot be based on the fact
that he (1) did not arrest Malone for a felony, (2) did not provide
Plaintiff with information about relief available to domestic abuse
victims, (3) did not provide Plaintiff with transportation to a shelter
or a judge, (4) did not search Plaintiff’s house for evidence of forced
entry, or (5) did not request Malone’s criminal history. See Whitlock
v. Brueggemann, 682 F.3d 567, 588 (7th Cir. 2012) (“There is no
affirmative duty on police to investigate.”).
For Plaintiff to state a cognizable substantive due process
claim against Defendant Hagan, she must allege facts which show
that it is plausible that Defendant Hagan’s actions created or
increased a threat faced by Plaintiff. According to Plaintiff,
Defendant Hagan went to Plaintiff’s house, cordially conversed with
Malone regarding whether he resided at Plaintiff’s house, and
accepted Malone’s explanation that he resided there. See
Complaint, ¶ 68; Id., Count I, ¶ 95. Defendant Hagan arrested
Malone for possessing marijuana and having a warrant out for his
arrest. Id. ¶ 69. After Malone’s arrest, Defendant Hagan told
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Plaintiff that she would be safe and that he would be patrolling the
area. Id. ¶ 80. He spoke to Plaintiff’s mother, who informed him
that Malone did not reside with Plaintiff. Id. ¶ 79. Defendant
Hagan also informed Plaintiff that he would include information
about Malone’s threatening voicemail and Plaintiff’s broken door in
his report and would “look into” arresting Malone for an offense that
would prevent him from being released from jail on bond. Id. ¶¶
75-78. Plaintiff has adequately alleged that Defendant Hagan took
action on February 8, 2015. But to invoke the “state-created
danger” exception, she must allege that those actions placed her in
a more dangerous situation than she would have been in absent
those actions.
In an attempt to meet this burden, Plaintiff alleges that
Malone was “emboldened” by the actions of Defendant Hagan on
February 8, 2015, such that they increased the danger that Malone
posed to her. See id., Count I, ¶¶ 94-95. Of course, certain of
Defendant Hagan’s actions, such as his statements to Plaintiff
about his report and potentially arresting Malone for a more serious
crime and his conversation with Plaintiff’s mother, could not have
“emboldened” Malone, because they were committed after Malone
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had been arrested and removed from Plaintiff’s residence. Also
working against Plaintiff are the numerous allegations of Malone’s
attacks on Plaintiff before the events of February 8, 2015. On May
17, 2011, Malone pushed Plaintiff to the ground and struck her in
the ribs. Id. ¶¶ 15-16. Plaintiff’s injuries in this attack were
serious enough for her to seek medical attention at a hospital. Id. ¶
17. In another incident on the same date, Malone strangled
Plaintiff until she went limp. Id. ¶¶ 20-21. This attack was
immediately preceded by Malone’s threat to kill Plaintiff. Id. ¶ 20
(“Bitch, if I can’t have you nobody can. I’m going to kill you.”). In
yet another attack, Malone shoved Plaintiff to the ground after
having slashed one of the tires on her car with a knife. Id. ¶ 42.
These allegations show that Plaintiff was subject to the threat of
physical violence at the hands of Malone long before Defendant
Hagan arrived at Plaintiff’s house on February 8, 2015.
But Plaintiff’s substantive due process claim survives
Defendant’s Motion to Dismiss because of the manner in which
Malone carried out his attack on February 9, 2015. Although
Malone had attacked Plaintiff several times prior to that date, he
had never before attacked or harmed Plaintiff with a knife or any
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other deadly weapon. Plaintiff does not specifically allege that
Malone’s attempt on her life was the result of his arrest at the
hands of Defendant Hagan. But in his first attack on Plaintiff after
Defendant Hagan arrested him, Malone stabbed Plaintiff numerous
times. The Court must draw all reasonable inferences in favor of
Plaintiff, see Roberts, 817 F.3d at 564, and it is a reasonable
inference that Malone’s vicious knife attack was the proximate
result of being arrested by Defendant Hagan the day prior. In this
sense, Malone became a greater risk to Plaintiff as a result of
Defendant Hagan’s arrest. Indeed, the allegations of Plaintiff’s
Complaint indicate that Malone’s intent in breaking into Plaintiff’s
house on February 8, 2015, was to destroy her property, not to
harm her physically. See Complaint, ¶¶ 56, 58 (alleging that on
February 8, 2015, Malone said to Plaintiff, “Bitch, I’m going to go to
your house and break all your stuff,” and that Plaintiff
subsequently reported to a 911 dispatcher that Malone had
threatened to go into Plaintiff’s house and destroy her property).
However, as the events detailed in Plaintiff’s Complaint make clear,
Malone’s intent in breaking into Plaintiff’s house in the early
morning hours of February 9, 2015, was to do Plaintiff serious
Page 23 of 60
harm by stabbing her repeatedly. If one analyzes the allegations in
the Complaint in the light most favorable to Plaintiff, it was
Defendant Hagan’s arrest of Malone that caused Malone to become
a deadly threat to Plaintiff. Defendant Hagan’s arrest of Malone,
while lawful, occurred as a result of Plaintiff contacting the QPD.
This fact could not have been lost on Malone, and Defendant Hagan
had to have realized that Malone’s arrest could have caused an
increase in Malone’s anger level. According to the Complaint,
before his arrest, Malone was threatening to damage Plaintiff’s
property, but after his arrest, Malone stabbed Plaintiff numerous
times.
The fact that the action serving as the basis for Plaintiff’s
substantive due process claim was a lawful arrest by Defendant
Hagan is not inconsistent with the application of the “state-created
danger” exception to the rule promulgated in DeShaney. See Reed
v. Gardner, 986 F.2d 1122, 1126-27 (7th Cir. 1993) (holding that
the plaintiffs stated a substantive due process claim under 42
U.S.C. § 1983 by alleging that police arrested the driver of a vehicle
and left the keys with an intoxicated passenger who later struck
another vehicle while driving); White v. Rochford, 592 F.2d 382,
Page 24 of 60
382-83 (7th Cir. 1979) (holding that the plaintiffs stated a
substantive due process claim under 42 U.S.C. § 1983 by alleging
that police arrested a man for drag racing and subsequently left the
three child passengers in the car alone on the side of the road, an
experience that allegedly caused the children “mental pain and
anguish”). Defendant Hagan’s arrest of Malone, like the valid
arrests made in White and Reed, increased the danger that
someone—here, Plaintiff—faced. This case, as alleged by Plaintiff in
her Complaint, is therefore different from those in which DeShaney
barred plaintiffs’ § 1983 claims either because the defendant did
not act or because the defendant’s actions did not increase the
danger the plaintiff faced. See Windle v. City of Marion, 321 F.3d
658, 661-63 (7th Cir. 2003) (affirming the district court’s grant of
summary judgment in favor of an individual defendant because the
plaintiff’s claim was based on the defendant’s failure to act rather
than on the defendant’s actions); Wallace, 115 F.3d at 430
(affirming the district court’s dismissal of the plaintiff’s complaint
because the plaintiff would have faced the same danger absent the
actions taken by the defendant). In short, Defendant Hagan’s act
of arresting Malone on February 8, 2015, is sufficient for Plaintiff to
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invoke the “state-created danger” exception.
In conclusion, although DeShaney established a general rule
that a State does not violate an individual’s substantive due process
rights by failing to protect her from private violence, the “statecreated danger” exception to the rule allows § 1983 claims where
State action transforms a potential threat into an actual one,
thereby increasing the level of danger to which a person is
subjected. The allegations in Count I of Plaintiff’s Complaint are
sufficient to state a § 1983 claim under the “state-created danger”
exception. Accordingly, Count I of Plaintiff’s Complaint states a
cognizable claim under 42 U.S.C. § 1983 based on substantive due
process grounds.
2. Plaintiff’s factual allegations are insufficient to state a claim
against Defendant Hagan for violating Plaintiff’s procedural
due process rights.
In Count I of her Complaint, Plaintiff claims that Defendant
Hagan had a duty pursuant to the Illinois Domestic Violence Act of
1986 (Act) to use all reasonable means to prevent Malone from
abusing her further, including arresting Malone, offering Plaintiff
immediate and adequate information about relief available to abuse
victims, and providing or arranging transportation for Plaintiff and
Page 26 of 60
her children to a nearby place of shelter or safety or to the nearest
available judge so Plaintiff could file a Petition for an emergency
order of protection. Complaint, Count I, ¶ 93. Plaintiff also alleges
that Defendant Hagan’s actions and omissions violated Plaintiff’s
statutory rights. Id., Count I, ¶ 97. Because these allegations can
be construed as a claim based on a violation of Plaintiff’s procedural
due process rights, the Court analyzes such a claim below.
However, because Plaintiff does not have a property interest
protected by the Due Process Clause in police enforcement of the
Act, Plaintiff’s Complaint does not state a cognizable procedural due
process claim.
“An essential component of a procedural due process claim is
a protected property or liberty interest.” Domka v. Portage County,
Wisconsin, 523 F.3d 776, 779 (7th Cir. 2008). In the context of a
procedural due process claim in which the plaintiff alleges that the
State deprived her of property without due process, state law
governs whether something is “property” afforded procedural due
process while federal law determines the process that is required.
Goros v. County of Cook, 489 F.3d 857, 859 (7th Cir. 2007).
In DeShaney, the Supreme Court analyzed only the plaintiff’s
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substantive due process rights in the context of state protection
from private violence. See 489 U.S. at 195 (“The claim is one
invoking the substantive rather than the procedural component of
the Due Process Clause . . . .”). The Court declined to address the
plaintiff’s argument that a state child protection statute gave an
entitlement “to receive protective services in accordance with the
terms of the statute, an entitlement which would enjoy due process
protection against state deprivation.” Id. at 195 n.2.
The Supreme Court took up an issue similar to the one
sidestepped in DeShaney, however, in Town of Castle Rock,
Colorado v. Gonzales, 545 U.S. 748 (2005). In Castle Rock, the
plaintiff brought an action under 42 U.S.C. § 1983 against the
town, alleging that its police department’s policy of failing to
respond to complaints involving restraining order violations was a
violation of the Due Process Clause. Id. The plaintiff also alleged
that the town’s police officers failed to enforce a restraining order
she had against her estranged husband after he took their three
children during the week without giving advance notice to the
plaintiff. Id. at 751-54.
After the district court granted the town’s motion to dismiss,
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the Eleventh Circuit reversed, holding that the plaintiff had stated a
“cognizable procedural due process claim.” Id. at 754. A rehearing
en banc produced the same result, with the full appellate court
holding that the plaintiff had a “protected property interest in the
enforcement of the terms of her restraining order.” Id. at 754-55.
The Supreme Court reversed, holding that the plaintiff did not
have a property interest protected by the Due Process Clause in
police enforcement of the restraining order. Id. at 768. At the heart
of the plaintiff’s claim was a Colorado statute stating that “[a] peace
officer shall use every reasonable means to enforce a restraining
order” and that “[a] peace officer shall arrest, or, if an arrest would
be impractical under the circumstances, seek a warrant for the
arrest of a restrained person.” Id. at 759 (citing Colo. Rev. Stat. §
18-6-803.5(3)(a)). The restraining order that the plaintiff sought to
have enforced contained language nearly identical to that of the
Colorado statute. Id. at 752. The statute did not grant plaintiff a
property interest in the enforcement of her restraining order,
however, because it did not mandate police enforcement of
restraining orders. Id. at 760. The Supreme Court’s holding was
based on the fact that a “well established tradition of police
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discretion has long coexisted with apparently mandatory arrest
statutes.” Id.
The Supreme Court’s reasoning in Castle Rock is just as
applicable to a procedural due process claim based on a police
officer’s alleged failure to comply with section 304 of the Illinois
Domestic Violence Act. This section, entitled “Assistance by law
enforcement officials” states, in pertinent part, as follows:
Whenever a law enforcement officer has reason to believe
that a person has been abused, neglected, or exploited by
a family or household member, the officer shall
immediately use all reasonable means to prevent further
abuse, neglect, or exploitation, including:
(1) Arresting the abusing, neglecting and exploiting
party, where appropriate;
(2) If there is probable cause to believe that particular
weapons were used to commit the incident of abuse,
subject to constitutional limitations, seizing and taking
inventory of the weapons;
(3) Accompanying the victim of abuse, neglect, or
exploitation to his or her place of residence for a
reasonable period of time to remove necessary
personal belongings and possessions;
(4) Offering the victim of abuse, neglect, or exploitation
immediate and adequate information (written in a
language appropriate for the victim or in Braille or
communicated in appropriate sign language), which
shall include a summary of the procedures and relief
available to victims of abuse under subsection (c) of
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Section 217 and the officer’s name and badge number;
(5) Providing the victim with one referral to an
accessible service agency;
(6) Advising the victim of abuse about seeking medical
attention and preserving evidence (specifically
including photographs of injury or damage and
damaged clothing or other property); and
(7) Providing or arranging accessible transportation for
the victim of abuse (and, at the victim’s request, any
minors or dependents in the victim’s care) to a medical
facility for treatment of injuries or to a nearby place of
shelter or safety; or, after the close of court business
hours, providing or arranging for transportation for the
victim (and, at the victim’s request, any minors or
dependents in the victim’s care) to the nearest
available circuit judge or associate judge so the victim
may file a petition for an emergency order of protection
under subsection (c) of Section 217. When a victim of
abuse chooses to leave the scene of the offense, it shall
be presumed that it is in the best interests of any
minors or dependents in the victim's care to remain
with the victim or a person designated by the victim,
rather than to remain with the abusing party.
750 Ill. Comp. Stat. 60/304(a). The operative language in this
section of the Illinois Domestic Violence Act is analogous to the
operative statutory language in Castle Rock with respect to granting
police officers discretion in carrying out their public duties.
Compare 750 Ill. Comp. Stat. 60/304(a) (“Whenever a law
enforcement officer has reason to believe that a person has been
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abused, neglected, or exploited by a family or household member,
the officer shall immediately use all reasonable means to prevent
further abuse, neglect, or exploitation . . . .”) (emphasis added), with
Colo. Rev. Stat. § 18-6-803.5(3)(a) (“Whenever a restraining order is
issued, the protected person shall be provided with a copy of such
order. A peace officer shall use every reasonable means to enforce a
restraining order.”) (emphasis added). Further, section 304 does
not require police officers to take any of the specific actions
enumerated therein. Farrar v. City of Chicago, 291 F. Supp. 2d
747, 755 (N.D. Ill. 2003) (“[T]he Illinois Domestic Violence Act does
not require law enforcement officers to arrest every abusive
individual; it only requires them to use reasonable means.”)
(emphasis added); see also 750 Ill. Comp. Stat. 60/304(a) (requiring
a police officer to arrest “the abusing, neglecting and exploiting
party, where appropriate”) (emphasis added). Nor does the
statutory provision require police officers to arrest a domestic
abuser for any specific offense.
The language in section 304 makes clear that Illinois police
officers have discretion in determining what that statutory provision
requires. See Tyska by Tyska v. Bd. of Educ. Twp. High Sch. Dist.
Page 32 of 60
214, Cook Cnty., 453 N.E.2d 1344, 1350 (Ill. App. Ct. 1983)
(“Discretion in the manner of the performance of an act arises when
the act may be performed in one of two or more ways, either of
which would be lawful, and where it is left to the will or judgment of
the performer to determine in which way it shall be performed. But
when a positive duty is enjoined, and there is but one way in which
it can be performed lawfully, then there is no discretion.”). This
discretion is undoubtedly necessary, as not all of the actions
enumerated in section 304 will be needed in every scenario.
Indeed, because Plaintiff was not physically abused on February 8,
2015, she did not need Defendant Hagan to seize any weapons,
advise her about seeking medical attention, or provide
transportation to a medical facility. Because Plaintiff’s interaction
with Defendant Hagan was at her house after Malone had been
arrested, she did not need him to accompany her there so she could
remove personal belongings. Indeed, Plaintiff does not allege that
Defendant Hagan had a duty to perform those actions. The fact
that section 304 requires police officers to use only “all reasonable
means” to prevent domestic abuse means that the provision’s
requirements do not rise to the level of an entitlement to police
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action afforded protection under the Due Process Clause. See
Castle Rock, 545 U.S. at 761 (noting that “a true mandate of police
action” would require more than language stating “‘shall use every
reasonable means to enforce a restraining order’ (or even ‘shall
arrest . . . or . . . seek a warrant’)”). Given that police officers have
discretion on how to comply with section 304, Plaintiff cannot be
said to have a property interest in the enforcement of that
particular statutory provision. See id. at 756 (“Our cases recognize
that a benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.”).
Plaintiff correctly notes that for over 20 years, Illinois has
recognized a civil cause of action against police officers who fail to
enforce the Illinois Domestic Violence Act in certain circumstances.
See Calloway v. Kinkelaar, 659 N.E.2d 1322, 1328 (Ill. 1995) (“To
give effect to the legislature’s purposes and intent in enacting the
Domestic Violence Act, we believe judicial recognition of a right of
action for civil damages is necessary, provided that the injured
party can establish that he or she is a person in need of protection
under the Act, the statutory law enforcement duties owed to him or
her were breached by the willful and wanton acts or omissions of
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law enforcement officers, and such conduct proximately caused
plaintiff’s injuries.”); see also 750 Ill. Comp. Stat. 60/305 (providing
immunity from civil liability to law enforcement officers “acting in
good faith in rendering emergency assistance or otherwise
enforcing” the Act for their actions and inactions, but only if those
actions and inactions do not constitute willful and wanton
misconduct). But, unfortunately for Plaintiff, the mere fact that
Defendant Hagan could be liable for failing to enforce the Act does
not save her procedural due process claim, as “state law cannot be
enforced through § 1983.” Bond, 728 F.3d at 693; see also Windle,
321 F.3d at 662 (“With nothing more to go on than a state statute,
[the plaintiff] cannot succeed in saving her claim. State law
violations do not form the basis for imposing § 1983 liability.”). The
reason for this rule is that the Due Process Clause “does not
transform every tort committed by a state actor into a constitutional
violation.” DeShaney, 489 U.S. at 202; see also Archie v. City of
Racine, 847 F.2d 1211, 1216–17 (7th Cir. 1988) (en banc) (quoting
Snowden v. Hughes, 321 U.S. 1, 11 (1944)) (“A state ought to follow
its law, but to treat a violation of state law as a violation of the
Constitution is to make the federal government the enforcer of state
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law. State rather than federal courts are the appropriate
institutions to enforce state rules.”). In short, just because a
statute imposes a duty on State actors does not necessarily mean
that the statute conveys a constitutionally-protected property
interest.
The idea that Plaintiff has a constitutionally-protected
property interest in police enforcement of section 304 of the Act is
further discounted by the fact that Defendant Hagan is liable to
Plaintiff in state court only if his actions or omissions constitute
“willful and wanton misconduct.” See 750 Ill. Comp. Stat. 60/305.
Accordingly, a police officer can be held civilly liable for failing to
perform the actions listed in section 304 only if those omissions
evidence a conscious disregard for the safety of the domestic abuse
victim. See id.; Fagocki v. Algonquin/Lake-In-The-Hills Fire Prot.
Dist., 496 F.3d 623, 627 (7th Cir. 2007) (citing Pfister v. Shusta,
657 N.E.2d 1013, 1016 (Ill. 1995)) (noting that willful and wanton
conduct is defined in Illinois jurisprudence as conduct “exhibiting
an utter indifference to or conscious disregard for safety”) (internal
quotation marks omitted). This demanding standard is inconsistent
with victims of domestic abuse having an entitlement to police
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enforcement of section 304 of the Act that would be protected by
the Due Process Clause. See Castle Rock, 545 U.S. at 756 (quoting
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972)) (“The procedural component of the Due Process Clause does
not protect everything that might be described as a ‘benefit’: ‘To
have a property interest in a benefit, a person clearly must have
more than an abstract need or desire’ and ‘more than a unilateral
expectation of it. He must, instead, have a legitimate claim of
entitlement to it.’”).
The Castle Rock majority did agree with the dissenting
Justices in noting that some domestic violence statutes have been
found to be “more mandatory than traditional mandatory-arrest
statutes.” Id. at 762. But the statutes at issue in the cases cited by
the Castle Rock dissent—cases from Oregon, Tennessee, New
Jersey, and Washington—contain language that is more mandatory
than the language contained in section 304. See Or. Rev. Stat.
Ann. § 133.310(3) (“A peace officer shall arrest and take into
custody a person without a warrant when the peace officer has
probable cause to believe” that the person has violated a restraining
order.) (emphasis added); Tenn. Code Ann. § 36-3-611(a) (“Any law
Page 37 of 60
enforcement officer shall arrest the respondent without a warrant” if
the officer has “proper jurisdiction over the area in which the
violation occurred; . . . has reasonable cause to believe the
respondent has violated or is in violation of an order for protection;
and . . . has verified whether an order of protection is in effect
against the respondent.”) (emphasis added); N.J. Stat. Ann. §
2C:25-31 (“Where a law enforcement officer finds that there is
probable cause that a defendant has committed contempt of [a
domestic violence restraining order] the defendant shall be arrested
and taken into custody by a law enforcement officer.”) (emphasis
added); Wash. Rev. Code Ann. § 10.99.030(6)(a) (“When a peace
officer responds to a domestic violence call and has probable cause
to believe that a crime has been committed, the peace officer shall
exercise arrest powers . . . .”).
In contrast to the statutes on which the Castle Rock dissent
relied, section 304 of the Act states that police officers shall arrest
domestic abusers only “where appropriate.” 750 Ill. Comp. Stat.
60/304(a)(1). And do not forget, Defendant Hagan did arrest
Malone, albeit not for domestic violence. But section 304 does not
say that an officer must arrest a domestic abuser for domestic
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violence. As noted above, the discretionary language of section 304
precludes a finding that Plaintiff has a constitutionally-protected
property interest in police enforcement of that statutory provision.
Further, even if Plaintiff had a protectable property interest in police
enforcement of section 304, Plaintiff’s opportunity to pursue her
claims in state court will provide her with due process. Archie, 847
F.2d at 1217.
Plaintiff has alleged no cognizable procedural due process
claim, regardless of whether the actions listed in section 304 of the
Act are truly mandated for police officers. Indeed, in Castle Rock,
the Supreme Court did not rely only on the discretionary nature of
the Colorado statute in holding that the plaintiff did not have a
property interest in police enforcement of the restraining order. The
Court also held that the plaintiff could not be entitled to police
enforcement of the restraining order through the request for an
arrest warrant because the interest would be nothing more than
procedure—something insufficient to serve as the basis of a
property interest protected by the Due Process Clause. Castle
Rock, 545 U.S. at 764; see also id. at 771 (Souter, J., concurring)
(noting that the plaintiff’s claim of “a property interest in a statePage 39 of 60
mandated process in and of itself” was “at odds with the rule that
[p]rocess is not an end in itself,” as the “constitutional purpose [of
process] is to protect a substantive interest to which the individual
has a legitimate claim of entitlement”) (internal quotation marks
omitted); Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d
828, 832 (7th Cir. 2012) (holding that the plaintiff’s “interest in
contractually-guaranteed university process is not protected by the
federal Constitution”). Thus, even if section 304 was devoid of
discretionary language, Plaintiff still could not have a
constitutionally-protected property interest in the process that the
statutory provision establishes for police officers: arresting the
abuser, seizing weapons, accompanying the victim to her residence,
offering the victim a summary of the procedures and relief available
to her, referring the victim to a service agency, advising the victim
about seeking medical care and preserving evidence, and providing
transportation to a judge or a medical facility. See 750 Ill. Comp.
Stat. 60/304(a). As the Seventh Circuit has noted, “[t]he procedural
guarantees of the Due Process Clause exist apart from state law,
even though they depend on it.” Archie, 847 F.2d at 1217.
Accordingly, “if state law establishes procedural entitlements, these
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are not themselves property and will not be enforced in the name of
the Constitution.” Id. For this additional reason, Count I of
Plaintiff’s Complaint does not state a cognizable procedural due
process claim against Defendant Hagan under 42 U.S.C. § 1983.
In conclusion, the allegations in Count I of Plaintiff’s
Complaint, taken as true, are sufficient to state a claim based on a
violation of Plaintiff’s substantive due process rights through the
actions of Defendant Terry Hagan. Accordingly, Plaintiff has stated
a claim pursuant to 42 U.S.C. § 1983 upon which relief can be
granted. However, for the reasons stated above, the allegations in
Count I do not state a cognizable claim based on procedural due
process grounds.
B.
Defendants Are Not Entitled to Qualified Immunity.
Because Plaintiff has adequately pleaded a cognizable claim
under 42 U.S.C. § 1983 based on a violation of her substantive due
process rights by Defendant Hagan, the Court must determine
whether the allegations in Count I of Plaintiff’s Complaint are
sufficient to establish that Defendant Hagan is entitled to qualified
immunity on that claim. “[A] complaint is generally not dismissed
under Rule 12(b)(6) on qualified immunity grounds . . . [b]ecause an
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immunity defense usually depends on the facts of the case.”
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). “The
affirmative defense of qualified immunity protects government
officers from liability for actions taken in the course of their official
duties if their conduct does not violate ‘clearly established statutory
or constitutional rights of which a reasonable person would have
known.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
determining whether qualified immunity applies here, the Court
considers only those facts knowable to Defendant Hagan. See
White v. Pauly, 137 S. Ct. 548, 550 (2017).
The two-prong test used to determine if qualified immunity
applies requires the court to determine “(1) whether the facts,
viewed in a light most favorable to the injured party, demonstrate
that the conduct of the officers violated a constitutional right, and
(2) whether that right was clearly established at the time the
conduct occurred.” Hardaway, 734 F.3d at 743 (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). “To be ‘clearly established,’ a
right must be defined so clearly that every reasonable official would
have understood that what he was doing violated that right.”
Page 42 of 60
Dibble v. Quinn, 793 F.3d 803, 808 (7th Cir. 2015). The plaintiff
bears the burden of showing that the constitutional right at issue
was clearly established. Arlington Heights, 782 F.3d at 915. To
meet this burden, the plaintiff must establish that the alleged
misconduct was an obvious violation of a constitutional right or
that a court has upheld the purported right in a factually similar
case. Id. “The right allegedly violated must be established not as a
broad general proposition but in a particularized sense so that the
contours of the right are clear to a reasonable official.” Dibble, 793
F.3d at 808 (internal quotation marks omitted); see also White, 137
S. Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))
(reiterating that “‘clearly established law’ should not be defined ‘at a
high level of generality’”). This is not to say that State action is
protected by qualified immunity unless the same action has
previously been held unlawful, “but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.” Hope v.
Pelzer, 536 U.S. 730, 739 (2002).
Regarding the first prong—whether the facts demonstrate the
violation of a constitutional right—as noted above, the allegations in
Count I of Plaintiff’s Complaint are sufficient to state a claim based
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on a violation of Plaintiff’s substantive due process rights. Relevant
to the second prong, Plaintiff, in responding to Defendants’ Motion
to Dismiss, cites several Seventh Circuit cases where the “statecreated danger” exception allowed for a plaintiff’s § 1983
substantive due process claim to proceed. At the time of Defendant
Hagan’s alleged actions on February 8, 2015, the cases cited by
Plaintiff had clearly established that Plaintiff had a constitutional
right to have the police refrain from acting in such a way so as to
increase the danger that she faced. In White v. Rochford, three
minors were riding in a car driven by a man who was an uncle of at
least two of them. 592 F.2d at 382. The police arrested the uncle
for drag racing, and he pleaded with them to take the children to
the police station or a phone booth so they could call their parents,
but the police refused, instead leaving the children in an abandoned
car on the side of the road. Id. The children eventually left the car,
crossed eight lanes of traffic, and wandered on the freeway in cold
weather at night before finding a phone, which they used to call for
help. Id. Two of the children suffered mental or physical injuries
on account of the ordeal. Id.
In Reed v. Gardner, police arrested the sober driver of a car,
Page 44 of 60
leaving an intoxicated passenger inside the car with the driver’s
keys. 986 F.2d at 1124. The intoxicated passenger, while driving
the car of the person arrested, struck another vehicle head on at a
high speed while being pursued by police. Id. at 1123. The
accident killed two people and injured several others. Id. at 1124.
In Monfils v. Taylor, a paper mill employee left an anonymous
tip with police that one of his coworkers was going to steal property
from their employer. 165 F.3d 511, 513 (7th Cir. 1998). The tipster
made several follow-up calls to plead that a recording of the
anonymous tip not be released to the person implicated by the tip.
Id. at 514-15. Despite the tipster’s efforts and assurances by police
officers and an assistant district attorney that the tape would not be
released, a police officer gave a copy of the recorded conversation to
the would-be thief. Id. at 515. The tipster was killed a short time
later by six of his coworkers. Id.
In White, Reed, and Monfils, the Seventh Circuit held that
substantive due process claims were cognizable under the “statecreated danger” exception. White, 592 F.2d at 383 (“[T]he issue
before this court is whether the unjustified and arbitrary refusal of
police officers to lend aid to children endangered by the
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performance of official duty violates the constitution where that
refusal ultimately results in physical and emotional injury to the
children. We hold that such conduct indisputably breaches the
Due Process Clause.”); Reed, 986 F.2d at 1125 (“Police officers who
remove sober drivers and leave behind drunk passengers with keys
may be said to create a danger or at least render others on the road
more vulnerable.”); Monfils, 165 F.3d at 518 (holding that a police
officer’s action of assuring an assistant district attorney that the
recording of the anonymous tip would not be released but not
following through on that assurance “created a danger [the tipster]
would not have otherwise faced”). In these cases, the State took
action that subjected someone to a danger that they would not have
been in absent the State action. Put another way, each plaintiff
“was safe, or at least considerably safer, before the police acted.”
Arlington Heights, 782 F.3d at 917. In White, the children would
not have been left on the side of the road had the police not
arrested the driver of the car for drag racing. In Reed, those killed
or injured would not have been subject to the risk of being hit by
the drunk driver had the police not arrested the sober driver and
left the keys with an intoxicated passenger. The tipster in Monfils
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might still be alive had the police not given a copy of the recorded
anonymous tip to the coworker being informed upon.
Similarly, in this case, the allegations of the Complaint, when
viewed in the light most favorable to Plaintiff, demonstrate that
Plaintiff would not have been stabbed by Malone in the early
morning hours of February 9, 2015, had Defendant Hagan not
arrested Malone at Plaintiff’s house the day earlier. White and Reed
provided Defendant Hagan with notice that a valid arrest could put
another person in danger such that State action was required to
guard against that danger. Monfils provided Defendant Hagan with
notice that police action transforming one person from a potential
threat into an actual threat to another person requires police action
to prevent harm in order to satisfy the Due Process Clause.
Accordingly, the constitutional right that Defendant Hagan is
alleged to have violated was clearly established at the time he
arrested Malone on February 8, 2015. Although Defendant Hagan
could not have known with certainty what Malone was going to do
once he was released on bond, neither could the police in Monfils
have known for certain what would happen to the tipster after the
person informed upon received a recording of the anonymous tip.
Page 47 of 60
While Defendant Hagan was merely doing his duty on February 8,
2015, his actions increased the risk that Malone posed to Plaintiff.
Defendant Hagan therefore had a duty to protect Plaintiff from
Malone, a duty that he did not honor if the allegations of the
Complaint are to be believed. The end result is that the allegations
of Plaintiff’s Complaint are sufficient to prevent this Court from
dismissing Count I on the grounds of qualified immunity.
While there are numerous cases in which § 1983 claims have
been defeated by the rule promulgated in DeShaney—that a State
does not violate a person’s substantive due process rights by failing
to protect that person from private violence—those cases share a
common trait: either the state actors committed no affirmative act
or the act committed neither created nor increased a danger. See
Windle, 321 F.3d at 660-62 (7th Cir. 2003) (defendant not liable
because plaintiff’s claim was based on defendant’s failure to
intervene for two months after hearing intercepted phone
conversations that revealed an inappropriate sexual relationship
between a teacher and the plaintiff, a minor student); Wallace, 115
F.3d at 430 (defendants not liable because their actions of ordering
the plaintiff, a prison guard, to remain at his post and assuring him
Page 48 of 60
that they were taking steps to protect him did not increase the
danger that the plaintiff faced because he had a duty to remain at
his post until told otherwise). When looking at the allegations of
Count I of Plaintiff’s Complaint in the context of the cases described
above, the Court cannot determine at this time that Defendant
Hagan is entitled to the affirmative defense of qualified immunity.
C.
The Allegations in Counts II and III of Plaintiff’s
Complaint Are Sufficient to State Timely Claims
Under Illinois Law.
Before analyzing whether the allegations in Count II of
Plaintiff’s Complaint state a claim under Illinois law, the Court
must first determine whether such a claim has been timely filed.
Two Illinois statutes are relevant to this inquiry. Section 8-101 of
the Illinois Local Government and Governmental Employees Tort
Immunity Act (Tort Immunity Act), entitled “Limitation,” states as
follows: “No civil action . . . may be commenced in any court against
a local entity or any of its employees for any injury unless it is
commenced within one year from the date that the injury was
received or the cause of action accrued.” 745 Ill. Comp. Stat. 10/8101(a). Plaintiff does not dispute that her state claim against
Defendant Hagan is subject to this statute of limitations. Nor can
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Plaintiff dispute that she filed suit on March 9, 2016, more than
one year after Defendant Hagan’s alleged tortious conduct. But in
arguing that her state law claim against Defendant Hagan was
timely filed, Plaintiff relies on section 13-211 of the Illinois Code of
Civil Procedure (Code), entitled “Minor and persons under legal
disability”: “If the person entitled to bring an action, specified in
Sections 13-201 through 13-210 of this Code, at the time the cause
of action accrued, . . . is under a legal disability, then he or she may
bring the action within 2 years after . . . the disability is removed.”
735 Ill. Comp. Stat. 5/13-211. Section 13-202 of the Code governs
action for damages stemming from personal injuries. 735 Ill. Comp.
Stat. 5/13-202.
Although section 13-211 of the Code gives a plaintiff two years
to file a claim once a legal disability is removed, because Plaintiff’s
claim against Defendant Hagan is governed by the Tort Immunity
Act, Plaintiff had only one year to file her claim once her legal
disability was removed. Basham v. Hunt, 773 N.E.2d 1213, 1223
(Ill. App. Ct. 2002) (holding that the section 8-101 of the Tort
Immunity Act controls over section 13-211 of the Code, meaning
that a plaintiff whose claim was governed by the Tort Immunity Act
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has to file within one year of the removal of the plaintiff’s legal
disability). Accordingly, for Plaintiff’s state law claim against
Defendant Hagan to have been timely filed, she must have been
under a legal disability from Malone’s February 2015 attack until at
least March 9, 2015.
A person suffers from a legal disability where she is “entirely
without understanding or capacity to make or communicate
decisions regarding [her] person” and unable to manage her estate
or financial affairs. Basham, 773 N.E.2d at 1221. A plaintiff must
allege both a lack of capacity to make decisions about her person
and an inability to manage her affairs in order to toll a statute of
limitations based on a legal disability. See Selvy v. Biegel, 723
N.E.2d 702, 708-09 (Ill. App. Ct. 1999) (holding that a defendant
did not properly allege a legal disability based solely on his inability
to look after his daily affairs for 10 months following a leg fracture,
surgery, and a hospital stay because the defendant did not allege
that he “was without understanding or capacity to make or
communicate decisions about his person”). “In a personal injury
case, a person is not legally disabled if he or she can comprehend
the nature of the injury and its implications.” Basham, 773 N.E.2d
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at 1221.
The Complaint alleges that after Malone’s attack, Plaintiff was
discharged from the hospital on narcotic pain medication and
psychoactive medication. Complaint, ¶ 88. Plaintiff could not take
care of herself or her children and needed around-the-clock
assistance until late March 2015. Id. Further, Plaintiff suffered
from a mental illness or mental deterioration, anxiety, and
depression. Id. ¶ 89. Until late March 2015, Plaintiff was
completely incapacitated, both physically and mentally, and was
unable to manage her duties and affairs. Id. ¶¶ 88-90. The Court
finds that these allegations, taken as true, are sufficient to establish
that Plaintiff was under a legal disability from the date of Malone’s
attack until late March 2015. Given that Plaintiff’s Complaint was
filed on March 9, 2016, the allegations in Count II are sufficient to
establish that the Complaint was filed within the one year provided
by the section 8-101 of the Tort Immunity Act. Having made this
determination, the Court must now determine whether the
allegations of Count II state a valid claim under Illinois law.
As noted above, section 304 of the Illinois Domestic Violence
Act requires a police officer who “has reason to believe that a person
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has been abused, neglected, or exploited by a family or household
member” to “immediately use all reasonable means to prevent
further abuse, neglect, or exploitation.” 750 Ill. Comp. Stat.
60/304(a). The non-exhaustive list of “reasonable means” includes
the following actions: (1) arresting the abuser, (2) seizing weapons if
there is probable cause to believe that weapons were used to
commit the abuse, (3) accompanying the abuse victim to her
residence so she can remove belongings, (4) offering the abuse
victim information on the relief available to abuse victims, (5)
providing the abuse victim with a referral to a service agency, (6)
advising the abuse victim about preserving evidence and seeking
medical attention, and (7) providing or arranging transportation for
the abuse victim to go to a medical facility, a “nearby place of
shelter or safety,” or the nearest available judge. Id.
The Illinois Supreme Court has recognized a civil cause of
action against police officers who breach the duties imposed on
them by the Act. See Calloway, 659 N.E.2d at 1328 (“To give effect
to the legislature’s purposes and intent in enacting the Domestic
Violence Act, we believe judicial recognition of a right of action for
civil damages is necessary . . . .”). To state a claim based on the
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Act, the plaintiff must allege (1) that she “is a person in need of
protection under the Act,” (2) that the duties owed to her under the
Act “were breached by the willful and wanton acts or omissions of
law enforcement officers,” and (3) that the willful and wanton
conduct proximately caused her injuries. Id.; see also 750 Ill.
Comp. Stat. 60/305 (excluding willful and wanton misconduct from
the immunity provided to law enforcement officers “rendering
emergency assistance or otherwise enforcing” the Act). Accordingly,
the allegations in Count II of Plaintiff’s Complaint must satisfy these
three requirements to defeat Defendants’ Motion to Dismiss.
Plaintiff’s allegations in Count II are indeed sufficient to satisfy
a claim against Defendant Hagan based on the Illinois Domestic
Violence Act. The Act protects “any person abused by a family or
household member.” 750 Ill. Comp. Stat. 60/201(a)(i). “Abuse,” as
defined in the Act, includes “physical abuse” and “harassment.”
750 Ill. Comp. Stat. 60/103(1). “Domestic violence” is defined in
exactly the same way. See 750 Ill. Comp. Stat. 60/103(3).
“Harassment” is defined as unreasonable conduct that “would
cause a reasonable person emotional distress” and in fact does
cause emotional distress. 750 Ill. Comp. Stat. 60/103(7). “Family
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or household members” include “persons who have or allegedly
have a child in common.” 750 Ill. Comp. Stat. 60/103(6).
Malone meets the statutory definition of “family or household
member,” as he has a child with Plaintiff. Complaint, ¶¶ 31-32.
The allegations of the Complaint detail several instances where
Malone, prior to February 8, 2015, either physically abused Plaintiff
or engaged in unreasonable conduct that caused Plaintiff emotional
distress. See id. ¶¶ 11, 16, 20, 42. The Complaint alleges that on
February 8, 2015, Plaintiff, upset and crying, told Defendant Hagan
that Plaintiff was in danger and that Malone would hurt her after
being released on bond. Id. ¶¶ 74, 80. Plaintiff, frantic after
hearing a threatening voicemail left on her phone by Malone, played
the message for Defendant Hagan. Id. ¶ 75. Plaintiff was in tears
as she pleaded with Defendant Hagan to arrest Malone for a crime
that would prevent Malone from being released on bond. Id. ¶ 78.
These allegations are sufficient to state that Plaintiff had been
abused by a “family or household member” and was therefore a
person in need of the Act’s protections on February 8, 2015,
thereby satisfying the first element of her state law claim against
Defendant Hagan.
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The allegations in Plaintiff’s Complaint also state that
Defendant Hagan, through his willful and wanton actions and
omissions, breached the duty that was imposed on him by the
Illinois Domestic Violence Act with respect to Plaintiff. A police
officer can be held liable for breaching the duties imposed by the
Act only if his actions or omissions constitute “willful or wanton
misconduct.” 750 Ill. Comp. Stat. 60/305. Further, for the Act to
be implicated, the police officer must be “rendering emergency
assistance or otherwise enforcing” the Act. Id. “Implicit within the
definition of ‘otherwise enforcing’ is some police involvement or
contact with a protected person or someone on his or her behalf.”
Lacey v. Village of Palatine, 904 N.E.2d 18, 27 (Ill. 2009). Willful
and wanton misconduct is a course of action that evidences “an
utter indifference to or conscious disregard for a person’s own
safety or the safety or property of others.” Pfister, 657 N.E.2d at
1016.
Plaintiff alleges that Defendant Hagan breached section 304 of
the Illinois Domestic Violence Act by (1) failing to arrest Malone for
his unlawful forced entry into Plaintiff’s house, (2) failing to
investigate the relationship between Plaintiff and Malone, (3) failing
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to obtain Malone’s criminal history before arresting him, (4) failing
to provide Plaintiff with information on the relief available to abuse
victims, (5) failing to inform Plaintiff of the availability of
transportation to a “nearby place of shelter or safety,” and (6) failing
to inform Plaintiff of the availability of transportation to the nearest
available judge in order to obtain an emergency order of protection
against Malone. Complaint, Count II, ¶ 96. Plaintiff describes
these alleged omissions as “willful and wanton.” Id. Although some
of these alleged omissions track the actions listed in section 304,
some do not. However, section 304 does not limit the actions that a
police officer must take when the officer has reason to think a
person has been abused to those listed in the statute. See 750 Ill.
Comp. Stat. 60/304(a) (requiring police officers to “immediately use
all reasonable means to prevent further abuse, neglect, or
exploitation, including” those listed in the statute) (emphasis
added).
Plaintiff’s allegations of the specific omissions through which
Defendant Hagan breached his duty to Plaintiff under the Act must
be viewed in conjunction with the other allegations of the
Complaint. Defendant Hagan knew that Malone had abused
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Plaintiff in the past. Complaint, Count I, ¶ 92 (incorporated into
Count II). Defendant Hagan knew that Malone had left Plaintiff a
threatening voicemail. Id. ¶ 75. Defendant Hagan knew that one of
the doors in Plaintiff’s house had been broken off its hinges and
that Plaintiff had attempted to secure the broken door by propping
a door up against it. Id. ¶¶ 77, 81. Plaintiff, crying, told Defendant
Hagan that Malone was going to return to Plaintiff’s residence and
hurt her. Id. ¶¶ 74, 80. These allegations support Plaintiff’s
contention that Defendant Hagan’s decision to forego certain
actions, some of which are specifically listed in section 304 of the
Act evidence a conscious disregard of Plaintiff’s safety. Plaintiff also
alleges that Malone’s attack and the injuries sustained by Plaintiff
as a result were the direct and proximate result of Defendant
Hagan’s actions in violation of Plaintiff’s constitutional rights and
Defendant Hagan’s failures to comply with the Act. Complaint,
Count II, ¶ 97. When viewing these allegations together, the Court
concludes that Count II states a plausible, as opposed to
speculative, claim based on Defendant Hagan’s willful and wanton
failures to comply with the Illinois Domestic Violence Act.
Count III of Plaintiff’s Complaint asserts that the City of
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Quincy, Illinois (Quincy), is vicariously liable for Defendant Hagan’s
willful and wanton conduct in violation of the Act. Id., Count III, ¶
98. Plaintiff alleges that Defendant Hagan, on February 8, 2015,
and at all other times relevant to Plaintiff’s Complaint, was
employed by Quincy and was acting within the scope of his
employment as a police officer. Id. ¶ 3. Accordingly, Count III
states a valid cause of action against Quincy based on the theory of
respondeat superior with respect to Defendant Hagan’s alleged
willful and wanton misconduct in violating the Act. See Bagent v.
Blessing Care Corp., 862 N.E.2d 985, 991 (Ill. 2007) (“Under the
theory of respondeat superior, an employer can be liable for the
torts of an employee, but only for those torts that are committed
within the scope of the employment.”).
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (d/e
7) is DENIED. Although Count I of Plaintiff’s Complaint does not
state a cognizable procedural due process claim, the allegations in
Count I, taken as true, do state a substantive due process claim
based on the actions of Defendant Terry Hagan for which relief can
be granted pursuant to 42 U.S.C. § 1983. Further, Counts II and III
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of Plaintiff’s Complaint allege causes of action recognized by Illinois
law. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil
Procedure, Defendants have 14 days from the date they receive a
copy of this Order to file a response to Plaintiff’s Complaint.
ENTER: March 30, 2017.
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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