Morgan v. Finely et al

Filing 89

ORDER Signed by the Honorable Amy J. St. Eve on 9/26/2014: The Court grants Defendants' motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) and dismisses this lawsuit in its entirety. All pending dates and deadlines are stricken. Civil case terminated. [For further details, see Order.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HOWARD W. MORGAN,

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Plaintiff,
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v.
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TIMOTHY FINLEY, NICK OLSEN, ERIC )
WHITE, and JOHN WRIGLEY, City of
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Chicago Police Officers,
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Defendants.
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Case No. 07 C 0983
Judge Amy J. St. Eve

ORDER
The Court grants Defendants’ motion to dismiss brought pursuant to Federal Rule of
Civil Procedure 12(b)(6) and dismisses this lawsuit in its entirety [87].1 All pending dates and
deadlines are stricken. Civil case terminated.
STATEMENT
On September 12, 2008, Plaintiff Howard Morgan filed a one-count Second Amended
Complaint alleging a Fourth Amendment excessive force claim against Defendant Chicago
Police Officers Timothy Finley, Nick Olsen, Eric White, and John Wrigley. See 28 U.S.C. §
1331, 42 U.S.C. § 1983. Earlier, on April 16, 2007, Defendants moved to stay the proceedings
in light of the criminal charges pending against Plaintiff in relation to the incident underlying the
present lawsuit. In 2012, a jury convicted Plaintiff of several counts of attempted first degree
murder of a police officer and aggravated battery with a firearm. On February 21, 2014, the
Illinois Appellate Court affirmed Plaintiff’s convictions and sentence, and the Supreme Court of
Illinois denied Plaintiff’s petition for leave to appeal on May 28, 2014. The Court then lifted the
stay and Defendants brought the present motion to dismiss pursuant to Rule12(b)(6). For the
following reasons, the Court grants Defendants’ motion to dismiss and dismisses this lawsuit in
its entirety.
LEGAL STANDARD
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
complaint must include “a short and plain statement of the claim showing that the pleader is

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Plaintiff’s response to the present motion to dismiss was due on or before September
19, 2014. To date, Plaintiff has failed to file any such response.

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2)
must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation
omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put
differently, 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, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570).
“In reviewing the sufficiency of a complaint under the plausibility standard, [courts]
accept the well-pleaded facts in the complaint as true, Alam v. Miller Brewing Co., 709 F.3d 662,
665-66 (7th Cir. 2013), and draw “reasonable inferences in favor of the plaintiffs.” Teamsters
Local Union No. 705 v. Burlington No. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014). “[A]
plaintiff is not required to plead facts in the complaint to anticipate and defeat affirmative
defenses,” such as collateral estoppel, but “when a plaintiff’s complaint nonetheless sets out all
of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.”
Independent Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir. 2012). Also, a
“motion under Rule 12(b)(6) can be based only on the complaint itself, documents attached to
the complaint, documents that are critical to the complaint and referred to in it, and information
that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th
Cir. 2012).
BACKGROUND
In his Second Amended Complaint, Plaintiff alleges that on February 21, 2005, he was
driving his vehicle in the 1900 block of South Lawndale Avenue in Chicago, Illinois. (R. 38,
Sec. Am. Compl. ¶ 9.) According to Plaintiff, at approximately 12:30 a.m., Defendant Officers
affected a traffic stop and attempted to seize or arrest him without probable cause or justification.
(Id. ¶¶ 9, 10.) Plaintiff alleges that while arresting him, Defendants drew their service weapons
and fired at him. (Id. ¶ 12.) Plaintiff also alleges that at no point before, during, or after his
arrest did he pose an imminent threat of death or serious injury to Defendants, the public, or
himself. (Id. ¶ 14.) Therefore, Plaintiff asserts that Defendant Officers used unjustified and
objectively unreasonable force against him and/or failed to intervene to prevent this unjustified
force. (Id. ¶¶ 15, 16.)
Under Federal Rule of Evidence 201(b), the Court can take judicial notice of Plaintiff’s
prior criminal proceedings, including his convictions. See Virnich v. Vorwald, 664 F.3d 206,
209 (7th Cir. 2011); Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010);
McCann v. Neilsen, 466 F.3d 619, 620 (7th Cir. 2006). Taking judicial notice of Plaintiff’s state
court criminal proceedings under Rule 201, Plaintiff, a former Chicago police officer and a
police officer with the Burlington Northern & Santa Fe Railway at the time of the February 21,
2005 incident, pulled his handgun and fired at Defendant Officers during the altercation while
Defendant Officers attempted to arrest him.

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ANALYSIS
In their motion to dismiss, Defendants argue that Plaintiff’s state court criminal
conviction bars his Fourth Amendment excessive force claim under the doctrine of collateral
estoppel. See Brown v. City of Chicago, 599 F.3d 772, 774 (7th Cir. 2010). Illinois’ rule of
collateral estoppel controls the Court’s determination of whether Plaintiff’s state court
conviction bars his present excessive force claim brought in federal court pursuant to 42 U.S.C. §
1983. See id.; see also Adams v. Adams, 738 F.3d 861, 865 (7th Cir. 2013). To establish
collateral estoppel under Illinois law, Defendants must show that “(1) the issues decided in the
prior adjudication are identical to issues presented for adjudication in the current proceeding; (2)
there [is] a final judgment on the merits; and (3) the party against whom estoppel is asserted was
a party or in privity with a party in the prior action.” Gambino v. Koonce, 757 F.3d 604, 608
(7th Cir. 2014) (quoting American Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 451 (Ill.
2000)); see also Brown, 599 F.3d at 775. Under the first element, “a criminal conviction
precludes relitigation of issues that were necessarily decided in the criminal proceedings.”
Brown, 599 F.3d at 775 (citing Savickas, 739 N.E.2d at 449–51 (2000)). As the Supreme Court
of Illinois explained in Savickas, in a criminal matter:
[T]he State must prove the defendant guilty beyond a reasonable doubt by
a unanimous verdict, a greater burden than that faced by any civil litigant. The
defendant may remain silent and the State is prohibited from commenting on his
silence. Moreover, the defendant has the right to counsel and to a record paid for
by the State on appeal.
Id. at 450. As such, the Savickas court concluded that due to the greater evidentiary burden
required in criminal proceedings, criminal convictions have the same preclusive effect as civil
judgments. See id.
Turning to the elements of collateral estoppel under Illinois law, there was a final
judgment in Plaintiff’s state court criminal proceedings because the Illinois Appellate Court
affirmed Plaintiff’s conviction and sentence and the Supreme Court of Illinois denied his petition
for leave to appeal. See People v. Anderson, 1 N.E.3d 54, 58, 376 Ill.Dec. 721, 725 (2d Dist.
2013) (“one element of collateral estoppel is a final judgment on the merits, which does not exist
until the potential for appellate review has been exhausted”). Also, it is undisputed that the
Plaintiff in this lawsuit was the criminal defendant in the underlying state court case. See
Savickas, 193 Ill.2d at 387 (“the party against whom estoppel is asserted must have been a party
or in privity with a party to the prior adjudication.”). Thus, the Court turns to the first collateral
estoppel requirement, namely, whether the relevant issues in the present lawsuit and the state
court criminal proceedings are identical. See id.
Here, Plaintiff alleges that at no point before, during, or after his arrest on February 21,
2005, did he pose an imminent threat of death or serious injury to Defendant Officers, the public,
or himself that would justify Defendant Officers’ use of deadly force. Nevertheless, he was
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charged and convicted of multiple counts of attempted first murder of a police officer based on
firing his gun and injuring three police officers on February 21, 2005 — directly contradicting
Plaintiff’s allegations. To clarify, under Illinois law, attempted murder of a police officer is
“defined as performing an act constituting a substantial step toward the commission of murder,
with the criminal intent to kill the victim and the knowledge that the victim is a [police] officer
in the course of performing his official duties.” People v. Kidd, 7 N.E.3d 188, 199, 379 Ill.Dec.
762, 773 (1st Dist. 2014). Based on the trial evidence and the standard for attempted murder,
Plaintiff’s convictions establish that he had a gun and fired it at Defendant Officers, and it is
well-settled that “a law enforcement officer [can] use deadly force if an objectively reasonable
officer in the same circumstances would conclude that the suspect posed a threat of death or
serious physical injury to the officer or to others.” Marion v. City of Corydon, Ind., 559 F.3d
700, 705 (7th Cir. 2009) (citing Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85
L.Ed.2d 1 (1985)). Therefore, despite the denials in the present Second Amended Complaint
that he did not pose an imminent threat of death or serious injury to Defendants, Plaintiff’s
conduct during his arrest — pointing his gun at Defendant Officers and firing at them —
forecloses Plaintiff’s excessive force claim. In sum, Plaintiff engaged in conduct warranting the
Defendant Officers’ use of deadly force.
Because Plaintiff’s lawsuit is foreclosed by his criminal convictions, the Court need not
address Defendant Officers’ alternative argument brought pursuant to Heck v. Humphrey, 512
U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

Dated: September 26, 2014

______________________________
AMY J. ST. EVE
United States District Court Judge

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