Collier v. City of Rock Island et al

Filing 25

ORDER entered by Judge Sara Darrow on September 15, 2015. Defendants' 9 Motion to Dismiss is GRANTED, as specified in the attached Order. Plaintiff's 1 Complaint is DISMISSED WITHOUT PREJUDICE insofar as it seeks to bring Monell claims against Defendants. Count V of the Complaint is DISMISSED, and Counts VII and IX are STRICKEN. Plaintiff is granted leave to file an amended complaint in conformity with this Order by September 29, 2015, should he so elect. Plaintiff's 24 Mot ion for Leave to File a First Amended Complaint seeks to add an officer defendant to Plaintiff's original complaint. That motion is STRICKEN, since the complaint it seeks to amend has been dismissed, although, as explained above, Plaintiff is granted leave to file an amended complaint, which may include claims against other officers alleged to have been involved in the events that give rise to Plaintiff's claim. Defendants' 10 Motion for Hearing is DENIED.(SC, ilcd)

E-FILED

Tuesday, 15 September, 2015 05:15:05 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
MIKAIL COLLIER,
Plaintiff,
v.
ROCK ISLAND POLICE OFFICER
PHILLIP LEDBETTER, CITY OF ROCK
ISLAND, and UNKNOWN OFFICERS,
Defendants.

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Case No. 4:14-cv-4103-SLD-JEH

ORDER
Plaintiff Mikail Collier is suing Defendants City of Rock Island (“Rock Island”), Officer
Phillip Ledbetter, and unknown officers for the exercise of excessive force during Collier’s
arrest. Collier brings his claims under 42 U.S.C. § 1983 and Illinois law. He seeks compensatory
and punitive damages and attorney’s fees. Before the Court are Defendants’ Motion to Dismiss
parts of the Complaint, ECF No. 9, and Plaintiff’s Motion for Leave to File a First Amended
Complaint, ECF No. 24. For the following reasons, the Motion to Dismiss is GRANTED, and
the Motion for Leave is STRICKEN. Plaintiff’s Motion for Hearing, ECF No. 10, is DENIED.
BACKGROUND1
On July 14, 2014, Collier was walking with his cousin to a friend’s house. Ledbetter
followed the two in his police car for approximately one block. There was no sidewalk on the
street. Ledbetter drove by, pulled over, and approached them on foot. Collier asked Ledbetter
why he had been following them and Ledbetter replied, “[B]ecause you were walking in the
1

In a motion to dismiss, all well-pleaded allegations in the complaint are taken as true and viewed in the light most
favorable to the plaintiff. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012)
(citation omitted). Accordingly, the material set forth here is, unless otherwise noted, based on allegations in the
Complaint, ECF No. 1.

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street back there.” Ledbetter twisted Collier’s wrist behind his back, then grabbed Collier under
his arm and slammed him to the ground, cutting his face. Ledbetter knelt on Collier’s back.
Other officers arrived at the scene shortly thereafter to assist with the arrest. None intervened in
the contact between Collier and Ledbetter. Later, when Ledbetter transferred Collier from one
police car to another, he told Collier: “I owned your ass.” Collier was charged criminally with
resisting arrest.
On December 18, 2014, Collier filed suit against the City of Rock Island and Officer
Ledbetter. On January 23, 2015, the City of Rock Island and Ledbetter filed their motion to
dismiss.
DISCUSSION
I.

Legal Standard on a Motion to Dismiss
In reviewing a motion to dismiss, a court must accept as true all well-pleaded facts in the

complaint, and draw all reasonable inferences in favor of the plaintiff. Scanlan v. Eisenberg, 669
F.3d 838, 841 (7th Cir. 2012). A court will dismiss a complaint if it fails to state a claim upon
which relief can be granted. Fed. R. Civ. P. 12(b)(6). In determining whether such a claim has
been stated, a court should first identify pleadings that “because they are no more than
conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). It should then take the remaining, well-pleaded factual allegations, “assume their
veracity[,] and . . . determine whether they plausibly give rise to an entitlement to relief.” Id.
This means that a complaint must provide “allegations that raise a right to relief above the
speculative level.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008).
II.

Analysis
A. The Complaint and Motion to Dismiss

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Collier’s Complaint alleges 9 counts. The counts pursuant to 42 U.S.C. § 1983 are: I, a
fourth amendment violation as to Ledbetter (termed “Excessive Force”), Compl. ¶¶ 53–58; II,
the failure of the unknown officers to intervene on Collier’s behalf, id. ¶¶ 59–63; and III, an
equal protection count against “defendant officers,” apparently intended as a claim against Rock
Island pursuant to Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978),
Compl. ¶¶ 64–71. The state law counts are: IV, assault and battery as to Ledbetter and Rock
Island,2 id. ¶¶ 72–77; V, false arrest and imprisonment as to Ledbetter and Rock Island, id. ¶¶
78–82; VI, intentional infliction of emotional distress (“IIED”) as to Ledbetter and Rock Island,
id. ¶¶ 83–86; VII, “respondeat superior,” id. ¶¶ 87–89; VIII, “indemnification,” id. ¶¶ 90–92; and
IX, “punitive damages,” id. ¶¶ 93–97. Plaintiff seeks compensatory and punitive damages, and
attorney’s fees. Id. at 16.
In their Motion to Dismiss, Defendants argue that Plaintiff fails to state a claim upon
which relief can be granted as to: Count III, Monell liability, Mot. Dismiss 3–7; Count V, false
arrest and imprisonment, id. at 7–10; Count VII, respondeat superior liability against Rock
Island, id. at 10; and Count IX, punitive damages against Rock Island, id. at 11. The Court
addresses each of these arguments below.
At the outset, however, it is appropriate to explain some of the basics of pleading in
federal court. Federal Rule of Civil Procedure 10(b) provides that “[a] party must state its claims
or defenses in numbered paragraphs,” and that “if doing so would promote clarity, each claim
2

Counts IV, V, and VI purport to sue Ledbetter “in his individual and official capacities.” Compl. ¶¶ 72, 78, 83. As
long ago as 1991, the Supreme Court hoped “to eliminate lingering confusion about the distinction between
personal- and official-capacity suits . . . . [and] emphasized that official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25
(1991). Plaintiff names Rock Island in the same breath as he attempts to sue Ledbetter in his official capacity. If
Ledbetter is an agent of Rock Island the pleading is redundant; if he is an agent of some other entity, that entity
should be named, and its policies and practices, as distinct from Rock Island’s allegedly discriminatory customs,
should be named. See id. at 361–62 (“Because the real party in interest in an official-capacity suit is the
governmental entity and not the named official, the entity's policy or custom must have played a part in the violation
of federal law.”).

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founded on a separate transaction or occurrence . . . must be stated in a separate count or
defense.” Plaintiff appears to misunderstand the difference between a claim for relief, which
arises from a distinct transaction or occurrence, and the legal underpinnings of such a claim. The
former should, per Rule 10(b), be separated into distinct counts; the latter should not. See
N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 291 (7th Cir. 1992) (“A ‘claim for relief’
seeks redress for a distinct wrong; a distinct legal underpinning differs from a new claim . . . .”).
“As common as the very different usage drawn from other sources and legal cultures may be, the
concept of a separate count thus does not properly encompass the statement of what is no more
than a different theory of recovery on the same claim.” Orthodontic Ctrs. of Ill. v. Michaels,
407 F. Supp. 2d 934, 935 (N.D. Ill. 2005).
Plaintiffs’ Counts VII, VIII, and IX—“respondeat superior,” “indemnification,” and
“punitive damages”—are not “claims,” in that they do not identify even potentially separate
transactions or occurrences upon which a theory of legal liability could be founded. Rather, they
are, respectively: a theory of liability by which an employer may be liable for his employee’s
torts, see Shields v. Illinois Dep't of Corr., 746 F.3d 782, 792 (7th Cir. 2014) cert. denied, 135 S.
Ct. 1024 (2015); the act of giving money or other payment to someone for some damage, loss, or
injury, see “indemnify,” Merriam-Webster Online Dictionary, 2014, http://www.merriamwebster.com/dictionary/indemnify (13 Aug. 2014); and a form of damages “not intended to
compensate the injured party, but rather to punish the tortfeasor,” City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 266 (1981). None of these things, which, evidently enough,
Plaintiff would like to see happen, merits a separate count, because none is a distinct claim for

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relief.3 Plaintiff has, in short, confusingly included his heterogeneous wants, along with his
claims for relief, under the heading of “Count.”
Defendants have accommodated themselves to Plaintiff’s scattershot pleading by styling
their Motion as one to both dismiss certain claims, pursuant to Rule 12(b)(6), and to strike
certain material, pursuant to rule 12(f), which is an appropriate enough adaptation. See Mot.
Dismiss 1. Plaintiff is cautioned, if he chooses to amend his Complaint, to do so in conformity
with the foregoing observations.
B. Monell Claim
Defendants argue that Plaintiff does not allege sufficient facts to show Monell liability.
“A local governing body may be liable for monetary damages under § 1983 if the
unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated
by its officers; (2) a governmental practice or custom that, although not officially authorized, is
widespread and well settled; or (3) an official with final policy-making authority.” Thomas v.
Cook County Sheriff's Dept., 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436 U.S. at 690).
Plaintiff replies that the facts he alleges are sufficient to make out a pattern-or-practice
based Monell claim because he pleads: 1) the facts surrounding his arrest, Resp. Mot. Dismiss 8;
2) that Rock Island “has a pattern and practice of using excessive force more frequently and
egregiously against African-American and other minorities,” id. at 7–8; 3) that it customarily
sends white officers into predominantly African-American neighborhoods and fails to employ
adequate numbers of African-American officers, id. at 8; 4) that it “demonstrates deliberate

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In particular, damages, and all demands for particular types of relief, are formally separated in Rule 8 from claims
for relief. A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief,” Fed. R. Civ. P. 8(a)(2); it must also and distinctly contain “a demand for the relief sought, which may
include relief in the alternative or different types of relief,” id. 8(a)(3). Plaintiff appears to understand this
distinction at some level, since his Complaint contains both a Count requesting punitive damages, and a “Prayer for
Relief on All Counts” which, duplicatively, contains a request for punitive damages. Compl. 16.

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indifference to its white officers’ disproportionate use of derogatory language and excessive
force,” id. at 9; and 5) that it refuses to investigate, discipline, or dismiss officers who use
excessive force, leading officers to continue to do so, id. at 9–10.
As an initial matter, Plaintiff once again muddies the waters by stating, in his Response to
the Motion to Dismiss, that “Counts I-III Properly Plead Municipal Liability Under Monell.”
Resp. Mot. Dismiss 6. But, in arguing against Monell liability, Defendants took issue only with
Count III, probably because Count III’s mention of Rock Island’s alleged policies and practices
is somewhat less perfunctory than that made in Counts I and II. However, the previous two
Counts, for “excessive force” and “failure to intervene,” do identify themselves as being lodged
against all defendants, and mouth the familiar “pervasive practices and customs” language that
portends Plaintiff’s ubiquitous wish to invoke Monell.4 The Court in any case will construe
Defendants’ Motion to Dismiss as addressing itself to Counts I-III, insofar as they seek to allege
Rock Island’s constitutional liability under § 1983 and Monell.
Plaintiff’s putative Monell claim cannot succeed as pleaded because most of his factual
allegations relevant to municipal liability are bare legal conclusions, and what allegations remain
are not sufficient to “nudge[ ] his claims . . . across the line from the conceivable to the
plausible.” Iqbal, 556 U.S. at 680. Ashcroft v. Iqbal mandates a “two-pronged approach,” 556
U.S. at 679. First, pleadings that are “no more than conclusions,” id., are omitted from
consideration by a court. Here, Plaintiff’s second, fourth, and fifth sets of allegations—that Rock
Island has a pattern and practice of using excessive force, Compl. ¶ 48, is indifferent to its
officers’ use of excessive force and derogatory language, id., and that it refuses to properly
supervise or investigate police misconduct, id. ¶ 49—are merely statements of a legal conclusion,
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It is worth noting here that, arising from a dramatically broader set of facts than individual officer misconduct, as a
Monell claim must, it would be been highly appropriate for Plaintiff to separate his Monell claim into a Count
separate from his constitutional allegations against Officer Ledbetter individually.

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unmarked by even the faintest sign of factual specificity. The first assertion merely repeats
Monell’s practice-or-custom standard, see Thomas, 604 F.3d at 303, while the latter two name
with a little prolixity a common sort of Monell claim, a “failure-to-discipline” claim. See, e.g.,
McLin ex rel.Harvey v. City of Chicago, 742 F. Supp. 994, 998 (N.D. Ill. 1990); Hudkins v. City
of Indianapolis, No. 1:13-CV-01179-SEB, 2015 WL 4664592, at *29 (S.D. Ind. Aug. 6, 2015).
These bare, conclusory assertions (if true, they would simply constitute Defendants’ guilt; see
Iqbal, 556 U.S. at 680) are not entitled to the assumption of truth. Id. at 679.
Plaintiff’s remaining assertions as to municipal liability—that Rock Island sends mostly
white officers into African-American neighborhoods, Compl. ¶ 46, and that it does not hire
enough African-American police officers, id. ¶ 47—while similarly devoid of specificity, are at
least not in the form of a legal conclusion. However, standing on their own, they do not come
close to allowing the Court to draw the reasonable inference that Defendant Rock Island is liable
under Monell—the second prong of the Iqbal approach. See Twombly, 550 U.S. 544, 556
(2007). In order to state a Monell claim for a municipal practice or custom, that practice must be
so “permanent and well-settled,” Waters v. City of Chicago, 580 F.3d 575, 581 (7th Cir. 2009),
that it causes a constitutional violation, id. And in order ultimately to be found liable, a
municipality “must have been aware of the risk created by the custom or practice and must have
failed to take appropriate steps to protect the plaintiff.” Thomas v. Cook County Sheriff's Dept.,
604 F.3d 293, 303 (7th Cir. 2009). It is difficult to see how Rock Island could be liable for the
deprivation of Plaintiff’s civil rights just by virtue of having and using a largely white police
force, or how it could have been on notice of such a risk simply by having such a force. See
Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 792 (7th Cir. 1991) (“Obviously, if
one retreats far enough from a constitutional violation some municipal ‘policy’ can be identified

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behind almost any such harm inflicted by a municipal official.... But Monell must be taken to
require proof of a city policy different in kind from [the ‘policy’ of establishing a police force]
. . . .” (quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)) (alteration in
original)).
Plaintiff relies heavily on Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163 (1993), which held that “ordinary notice pleading suffices for
§ 1983 claims against municipalities,” Gustafson v. Jones, 117 F.3d 1015, 1022 (7th Cir. 1997).
See Leatherman, 507 U.S. at 168 (“We think that it is impossible to square the ‘heightened
pleading standard’ applied by the Fifth Circuit in this case with the liberal system of ‘notice
pleading’ set up by the Federal Rules.”).5 However, the ordinary notice pleading standards of
Rule 8, clarified by Twombly and Iqbal, do not represent the application of any heightened
pleading standard. See Twombly, 550 U.S. at 559 n.14 (“In reaching this conclusion, we do not
apply any ‘heightened’ pleading standard”); cf. Fed. R. Civ. P. 9(b). Plaintiff has simply failed
to plead non-conclusory facts even remotely suggesting a pattern or practice of discrimination by
the police. Courts have frequently dismissed Monell claims as insufficiently pleaded for reasons
similar to those that obtain in the instant case, both before and after Twombly and Iqbal were
announced. See, e.g., Bd. of County Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397
(1997) (holding that a single alleged hiring decision by a county sheriff was not enough to make
out a claim that the County itself had a policy or custom that caused Plaintiff’s injuries);
Gustafson, 117 F.3d at 1021–22 (7th Cir. 1997) (holding that an alleged series of isolated
incidents of transfer or passing over for promotion of police officers did not succeed in stating a

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Plaintiff correctly observes that district courts since Twombly and Iqbal have continued to follow Leatherman in
construing the pleading standard for Monell claims as identical to the standard for ordinary claims. Plaintiff
puzzlingly describes some of these cases—Jordan v. Diaz, No. 10 C 1178, 2010 WL 5476758, at *1 (N.D. Ill. Dec.
23, 2010)—as “affirming” the Supreme Court’s decision, Resp. Mot. Dismiss 5 n.5, which of course they did not do.

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pattern-or-practice claim); White v. City of Chicago, No. 11 C 7802, 2014 WL 958714, at *3
(N.D. Ill. Mar. 12, 2014) (holding that mere allegations of widespread pattern and practice of
discrimination by the City of Chicago without any factual basis was insufficient to state a Monell
claim).
Because, as pleaded, Plaintiff does not allege sufficient facts to state a claim upon which
relief can be granted under Monell, that claim must be dismissed. Of course, “leave to amend
should be freely given and only denied after a motion to dismiss where it appears to a certainty
that the plaintiff cannot state a claim upon which relief can be granted.” Barry Aviation Inc. v.
Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 690 (7th Cir. 2004). If Plaintiff can plead
his Monell claim in conformity with Rule 8, he may try to do so.6
C. False Arrest and False Imprisonment
Defendants argue that Count V fails to state a claim because, on the facts alleged in the
Complaint, Ledbetter had probable cause to arrest Collier. Plaintiffs agree and request that the
claim(s) under Count V be dismissed. Resp. Mot. Dismiss 15. Pursuant to Rule 41(a)(1)(A)(2),
the Court dismisses Count V.

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In considering whether to attempt to bring this Monell claim, Plaintiff may find it useful to consider Judge
Kennelly’s explanation in Medina v. City of Chicago of the realities of Monell litigation:
In many if not most cases, disposition of the individual claims will either legally or practically end
the litigation. If the plaintiff fails to prove that he suffered a constitutional injury at the hands of an
officer, the officer will prevail at trial, and the finding will (under ordinary circumstances) bar the
individual's claim against the municipality. If the plaintiff prevails against the officer on his §
1983 claim, he is likely not to want or need to proceed any further, at least in this district and state.
. . . . And presumably for many of the same reasons, many (if not most) plaintiffs in § 1983 cases
filed in this district involving claims of excessive force by police officers—at least those involving
the Chicago Police Department, where the burdens of Monell discovery and proof are greater due
to the department's size—elect not to shoulder the burden of pursuing a Monell policy claim. They
do so because they do not believe the extra burdens involved in prosecuting such a claim are
justified by the benefits they may obtain.
Medina v. City of Chicago, 100 F. Supp. 2d 893, 895 (N.D. Ill. 2000) (citations omitted). The Court further
highlights that Plaintiff nowhere asked for injunctive relief in his original complaint.

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D. Respondeat Superior
Defendants move to dismiss Plaintiffs’ claim under Count VII, labeled simply
“respondeat superior,” arguing that Monell’s rule explicitly disallows automatic municipal
liability for the torts of city agents, or “respondeat superior” liability. Collier replies that he
meant to state only that the state law claims were covered by respondeat superior. Resp. Mot.
Dismiss 10.
As discussed above, the uncertainty created here arises from Plaintiff’s confusion about
how to separate his pleadings into Counts. Count VIII puzzlingly identifies itself as not a claim
but a type of liability, and then does not even do Defendants and the Court the service of
explaining to which claims this type of liability is supposed to attach. See U.S. ex rel. Garst v.
Lockheed-Martin Corp., 328 F.3d 374 (7th Cir. 2003) (“Rule 8(a) requires parties to make their
pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from
a bucket of mud.”). Since Count VII is not, properly understood, a freestanding claim, and it is
not possible to determine which of the Complaint’s actual claims it is meant to pertain to, it is
stricken pursuant to Rule 12(f), which permits the Court to trike “any redundant, immaterial,
impertinent, or scandalous matter.”
Plaintiff is correct to observe (and concede?) in his Response to the Motion to Dismiss
that Monell claims do not involve respondeat superior, but are rather theories of municipal
liability premised on the municipality’s unconstitutional policies and practices. See Monell, 436
U.S. at 691 (“a municipality cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory.”). He is equally correct to observe that for Illinois state law tort claims, “[t]here is no
dispute that under the doctrine of [r]espondeat [s]uperior, . . . . a municipality may be held liable

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for the tortious acts of police officers acting in the scope of their employment.” Resp. Mot.
Dismiss 14 (quoting Brown v. King, 767 N.E.2d 357, 360 (Ill. App. Ct. 2001)). Plaintiff’s state
law tort claims, Counts IV, V, and VI, are already leveled at both the individual defendants and
Rock Island, presumably under the theory that Plaintiff identifies and defends in his Response.
Insofar as he wishes to specify that theory of liability in those Counts, he is given leave to do so
in an amended complaint.
E. Punitive Damages
Defendants move to dismiss or strike Count IX, styled “punitive damages,” observing that
punitive damages are not available against a municipality. Mot. Dismiss 11. Plaintiff concedes
that punitive damages are not available against Rock Island, but maintains that punitive damages
may be available against the officers charged. Resp. Mot Dismiss 14–15.
Once again, the confusion here appears to have been elicited by Plaintiff’s manner of
pleading a form of relief he wishes to obtain as a Count. Since Plaintiff already requests punitive
damages as to all counts, Compl. 16, Count IX is duplicative in any event, and is stricken. See
Fed. R. Civ. P. 12(f). Insofar as Plaintiff sought to recover punitive damages against Rock
Island, he asks that his claim be dismissed, and the Court grants his request pursuant to Rule
41(a)(1)(A)(2).
CONCLUSION
Accordingly, Defendants’ Motion to Dismiss, ECF No. 9, is GRANTED, as specified
herein. Plaintiff’s Complaint, ECF No. 1, is DISMISSED WITHOUT PREJUDICE insofar as it
seeks to bring Monell claims against Defendants. Count V of the Complaint is DISMISSED, and
Counts VII and IX are STRICKEN. Plaintiff is granted leave to file an amended complaint in
conformity with this Order by September 29, 2015, should he so elect. Plaintiff’s Motion for

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Leave to File a First Amended Complaint, ECF No. 24, seeks to add an officer defendant to
Plaintiff’s original complaint. That motion is STRICKEN, since the complaint it seeks to amend
has been dismissed, although, as explained above, Plaintiff is granted leave to file an amended
complaint, which may include claims against other officers alleged to have been involved in the
events that give rise to Plaintiff’s claim. Defendants’ Motion for Hearing, ECF No. 10, is
DENIED.

Entered this 15th day of August, 2015.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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