Cruz et al v. City Of Chicago

Filing 125

MEMORANDUM Opinion and Order: the Court grants in part Defendants' motion to dismiss 119 and dismisses Plaintiff's two federal claims. The Court dismisses without prejudice Plaintiff's state law claims for intentional infliction of emotion distress (conspiracy); malicious prosecution; and indemnity with leave to re-file in state court within the one-year windowprovided by Illinois law. Signed by the Honorable Robert M. Dow, Jr on 7/24/2013. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICARDO CRUZ,
Plaintiff,
v.
CITY OF CHICAGO, ET AL.,
Defendants.

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Case No.: 08-cv-2087
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
On April 11, 2008, Plaintiff Anthony Castro filed a complaint against the City of Chicago
(“the City”) and Chicago Police Officer John Haleas. The matter was stayed until September 18,
2012, when the stay was lifted by agreement of the parties. Defendants then moved to dismiss
Plaintiff’s claims, and Plaintiff moved to amend his complaint. The Court granted Plaintiff leave
to amend, and Defendants now have moved to dismiss Plaintiff’s amended complaint [119]. For
the reasons set forth below, the Court grants in part Defendants’ motion to dismiss [119] and
dismisses Plaintiff’s two federal claims. The Court dismisses without prejudice Plaintiff’s state
law claims for intentional infliction of emotional distress (conspiracy), malicious prosecution,
and indemnification.
I.

Background1
On February 15, 2004, Plaintiff Ricardo Cruz was sitting on a porch with a large group of

friends and family. Officer Haleas observed the large crowd and ordered the group to disperse.

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For purposes of Defendants’ motions to dismiss, the Court assumes as true all well-pleaded allegations
set forth in the complaint. See, e.g., Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th
Cir. 2007).

After Plaintiff refused to leave the area, Haleas purportedly placed him under arrest for the
offense of driving under the influence of alcohol, even though he was not in a vehicle at the time.
On February 19, 2005, Plaintiff’s common law wife, Pearl Lufrano, was driving in the
area of 5420 W. Grand Ave., Chicago, Illinois. Plaintiff was seated between his children in the
back seat of the vehicle. The vehicle’s owner was seated in the front passenger seat. As Lufrano
drove down Grand Avenue, Officer Haleas stopped the car. Upon approaching the vehicle,
Haleas acknowledged that he remembered Plaintiff from arresting him one year earlier. Haleas
then pulled Plaintiff out of the vehicle’s back seat and placed Plaintiff under arrest for driving
under the influence of alcohol. Haleas also placed Lufrano under arrest for child endangerment
for allowing Plaintiff to operate a motor vehicle while their children were in the car. Plaintiff
and his family were transported to the police station, where Officer Haleas falsely reported that
Plaintiff, not Lufrano, was driving the vehicle and that Plaintiff attempted to conceal a beer can
during the traffic stop. Plaintiff was charged with driving under the influence of alcohol and
remained incarcerated for a day until his family was able to post the required bond.
Plaintiff alleges that Officer Haleas gave sworn grand jury testimony containing false
reports and that, based on Haleas’ perjured testimony, Plaintiff was indicted for driving under the
influence of alcohol.2 Plaintiff entered a plea of not guilty to the charged offense and was tried
on October 6, 2006. The State’s Attorney called Officer Haleas as a witness during its case in
chief. Plaintiff alleges that during the trial, Officer Haleas falsely testified that Plaintiff was
driving the vehicle under the influence of alcohol.3 In turn, Plaintiff presented testimony from
witnesses, including the vehicle’s owner, who all testified that Plaintiff was not driving the
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The charges against Lufrano were dismissed.

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Plaintiff alleges, on information and belief, that the Chicago Police Department knew that Haleas gave
false testimony and filed false reports in DUI cases, but took no action against him for more than two
years.

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vehicle at the time that Haleas initiated the traffic stop. Judge Sullivan found Plaintiff guilty and
revoked his bond.
On November 3, 2006, Plaintiff was sentenced to four years in the Illinois Department of
Corrections. In October 2007, Chicago media reported that the Cook County State’s Attorney’s
Office had dismissed more than 50 DUI arrests involving Officer Haleas and was investigating
his involvement in other DUI cases. On December 1, 2007, Plaintiff filed a pro se petition for
post-trial relief, which the Cook County State’s Attorney did not oppose. In his petition, Plaintiff
maintained that Haleas filled out a false police report to get a conviction; that Haleas lied about
Cruz being the driver of the car; and that Haleas fabricated the whole report to get a conviction.
On December 20, 2007, Judge Sullivan signed an order dismissing all charges against Plaintiff
and ordered his immediate release from the Illinois Department of Corrections. According to
Plaintiff, the only factor before the Court and the State’s Attorney was Officer Haleas’
credibility. Haleas was eventually indicted for official misconduct, obstructing justice, and
perjury in connection with an arrest of a different individual.
In his amended complaint, Plaintiff asserts federal claims for false arrest (conspiracy) and
due process/fair trial (conspiracy) and state law claims of intentional infliction of emotional
distress (conspiracy), malicious prosecution, and indemnification (against the City only).
II.

Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d
1510, 1520 (7th Cir. 1990). To survive a 12(b)(6) motion to dismiss, the complaint first must
comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the
pleader is entitled to relief” (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given “fair notice

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of the way the * * * claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed 2d 80 (1957)). Second, the factual allegations in
the complaint must be sufficient to raise the possibility of relief above the “speculative level,”
assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “[O]nce a
claim has been stated adequately, it may be supported by showing any set of facts consistent with
the allegations in the complaint. Twombly, 550 U.S. at 563. The Court accepts as true all of the
well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn
therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
III.

Analysis
Defendants seek dismissal of Plaintiff’s complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, arguing, among other things, that Plaintiff’s false arrest claim
is time-barred and that his federal due process claim is really a federal malicious prosecution
claim (which the Seventh Circuit does not recognize).

Defendants also seek dismissal of

Plaintiff’s state law claims.
A.

Fourth Amendment -- False Arrest (Conspiracy)

Plaintiff alleges that he was falsely arrested in violation of the Fourth Amendment when
Officer Haleas took him into custody on February 19, 2005. In the amended complaint, Plaintiff
alleges that “other as yet unknown” co-conspirators conspired with Officer Haleas in this
endeavor. Defendants maintain that Plaintiff’s false arrest claim is time-barred.
The Seventh Circuit has been very clear in its assessment of the limitations periods:
“[O]n the subject of the statute of limitations * * * * [w]hat a complaint must plead is enough to

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show that the claim for relief is plausible. Complaints need not anticipate defenses and attempt
to defeat them. The period of limitations is an affirmative defense * * * * We have held many
times that, because complaints need not anticipate defenses, Rule 12(b)(6) is not designed for
motions under Rule 8(c)(1).”

Richards v. Mitcheff, 696 F.3d 635, 637-38 (7th Cir. 2012)

(internal citations omitted); see also United States Gypsum Co. v. Indiana Gas Co.,350 F.3d 623
(7th Cir. 2003); United States v. Northern Trust Co., 372 F.3d 886 (7th Cir. 2004); Xechem, Inc.
v. Bristol—Myers Squibb Co.,372 F.3d 899 (7th Cir. 2004). In Mitcheff, the Court concluded by
reminding judges to “respect the norm that complaints need not anticipate or meet potential
affirmative defenses.”
Despite these admonitions, the Seventh Circuit also has consistently reaffirmed that a
plaintiff may plead himself out of court by alleging facts that are sufficient to establish a statuteof-limitations defense. See Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671,
675 (7th Cir. 2009) (dismissal is appropriate where it is “clear from the face of the amended
complaint that it [was] hopelessly time-barred”); Andonissamy v. Hewlett–Packard Co., 547 F.3d
841, 847 (7th Cir. 2008) (stating that “[a] statute of limitations defense, while not normally part
of a motion under Rule 12(b)(6), is appropriate where the allegations of the complaint itself set
forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly
reveals that an action is untimely under the governing statute of limitations”) (internal quotations
omitted); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.2d 623, 626 (7th Cir. 2003) (“A litigant
may plead itself out of court by alleging (and thus admitting) the ingredients of a defense”);
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (“Only when the
plaintiff pleads itself out of court—that is, admits all the ingredients of an impenetrable
defense—may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6).”); see

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also Baldwin v. Metro. Water Reclamation Dist. Of Greater Chicago, 2012 WL 5278614, at *1
(“A plaintiff whose allegations show that there is an airtight defense has pleaded himself out of
court, and the judge may dismiss the suit on the pleadings * * * .”) (quoting Mitcheff, 696 F.3d at
637). In the present case, Plaintiff has pled all of the necessary facts to resolve this issue. Where
a plaintiff has pled facts which arguably establish an affirmative defense and both sides have
briefed the issue, practical considerations—such as discovery costs, attorneys’ fees, and judicial
efficiency—provide courts with ample reasons to resolve a dispositive point of law early in a
case, whether the parties have briefed the question as a 12(b)(6) or a 12(c) issue. In either case, a
court’s decision rests on the pleadings and whether a plaintiff has affirmatively pled himself out
of court.
The length of the limitations period for a § 1983 action is determined by reference to state
law personal injury torts. Owens v. Okure, 488 U.S. 235, 240-41, 249-50 (1989) (quoting and
clarifying Wilson v. Garcia, 471 U.S. 261, 280 (1985)). In Illinois, the pertinent limitations
provision requires a would-be plaintiff to bring suit within two years of a cause of action’s
accrual. 735 ILCS 5/13-202; Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir. 2007).
The limitations clock on an action brought pursuant to § 1983 for false arrest “begins to run at
the time the claimant becomes detained pursuant to legal process.” Wallace v. Kato 549 U.S.
384, 397 (2007). For Plaintiff, that means that the limitations period began to run on or about
February 19, 2005. See id. (“a false imprisonment ends once the victim becomes held pursuant
to [legal process] – when, for example, he is * * * arraigned on charges”). In February 2005,
Plaintiff clearly was aware of the alleged constitutional violations—specifically, his false arrest
and the creation of a false police report. Plaintiff filed his initial complaint on April 11, 2008,
more than three years after the alleged incident and one year and two months after the expiration

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of the two-year statute of limitations. Accordingly, despite the egregious police misconduct
alleged in his complaint, Plaintiff’s false arrest claim is time-barred. Refurbishing his initial
false arrest claim by tagging on an allegation of a “conspiracy” surrounding the false arrest does
not expand the two-year statute of limitations.
B.

Due Process – Fair Trial (Conspiracy)

Plaintiff alleges that he was denied a fair trial because Officer Haleas “offered false
testimony and fabricated evidence” at his October 2006 trial. Pl.’s Resp. at 8. Defendants
maintain that Plaintiff is improperly casting a state law malicious prosecution claim as a federal
claim by invoking the Due Process Clause.
The Seventh Circuit has expressly held that “[a] plaintiff cannot state a due process claim
‘by combining what are essentially claims for false arrest under the Fourth Amendment and state
law malicious prosecution into a sort of hybrid substantive due process claim under the
Fourteenth Amendment.’”

Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009)

(quoting McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003)); see also United States v.
Lanier, 520 U.S. 259, 272 n. 7 (1997) (“[I]f a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, that claim must be analyzed
under the standard appropriate to that specific provision, not under the rubric of substantive due
process.”); Graham v. Connor, 490 U.S. 386, 394 (1989). Once Plaintiff’s § 1983 claim shifted
from a Fourth Amendment violation to a Fourteenth Amendment violation, his claim essentially
became one for malicious prosecution, rather than for a due process violation. See McCann v.
Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003) (finding that “to the extent [plaintiff] maintains
that [defendant] denied him due process by causing him to suffer a deprivation of liberty from
prosecution and a contrived conviction * * * deliberately obtained from the use of false evidence,

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his claim is, in essence, one for malicious prosecution, rather than a due process violation.”)
(internal citations omitted); Brooks, 564 F.3d at 833 (allegations of police “not disclosing known
exculpatory evidence, perjuring themselves, submitting false charges as contained in criminal
complaints, submitting false police reports, and otherwise acting to deny plaintiff a fair trial”
was, in essence, a claim for malicious prosecution, rather than a due process violation); Fox v.
Hayes, 600 F.3d 819, 841 (7th Cir. 2010) (plaintiff’s due process claim—which included
allegations that the police officers deliberately fabricated false statements, provided false
allegations, and withheld exculpatory evidence—consisted of “nothing more than a hybrid” of
his false arrest and malicious prosecution claims and was barred as a due process claim).
As the Seventh Circuit emphasized in Newsome v. McCabe, “the existence of a tort claim
under state law knocks out any constitutional theory of malicious prosecution.” 256 F.3d 747,
750 (7th Cir. 2001). Illinois has a common law tort action for malicious prosecution. Miller v.
Rosenberg, 749 N.E.2d 946, 951-52 (Ill. 2001). Thus, any claim that Plaintiff has for malicious
prosecution arises under Illinois law. Newsome, 256 F.3d at 750. In sum, Plaintiff cannot do an
“end run” around the controlling Seventh Circuit precedent “by combining what are essentially
claims for false arrest under the Fourth Amendment and state law malicious prosecution into a
sort of hybrid substantive due process claim under the Fourteenth Amendment.” McCann, 337
F.3d at 786. Indeed, almost identical due process allegations to those asserted by Plaintiff in this
case—that Officer Haleas and unknown co-conspirators drafted false police reports, encouraged
prosecution with false evidence, and provided false testimony—have been squarely rejected by
the Seventh Circuit in light of the availability of the state law claim of malicious prosecution.
See McCann, 337 F.3d at 786; Brooks, 564 F.3d at 833; Fox, 600 F.3d at 841; Caine v. Burge,
897 F. Supp. 2d 714, 717-723 (N.D. Ill. 2012) (concluding that Newsome, McCann, Brooks, and

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Fox “clearly hold[] that claims alleging that police officers falsified or fabricated evidence sound
only in malicious prosecution and therefore are not actionable under 42 U.S.C. § 1983 so long as
state law supplies an adequate remedy—which Illinois does.”). None of Plaintiff’s allegations
distinguish this case from the multiple cases cited above in which the Seventh Circuit has
concluded that allegations of police “perjuring themselves, submitting false charges as contained
in criminal complaints, submitting false police reports, and otherwise acting to deny plaintiff a
fair trial” was, in essence, a claim for malicious prosecution, rather than a due process violation.
See Brooks, 564 F.3d at 833; Whitlock v. Brueggemann, 682 F.3d 567, 580-87 (7th Cir. 2012)
(holding that a prosecutor acting in an investigatory capacity who fabricates evidence that is
used to obtain a wrongful conviction violates a convicted defendant’s clearly established due
process rights and thus is not entitled to qualified immunity); see also Alexander, 692 F.3d at 557
(discussing the holding of Whitlock).

The allegations supporting Plaintiff’s malicious

prosecution claim are sound; however, as demonstrated below, this claim must be brought in
state court.4
C.

State Law Claims

Because the Court grants Defendants’ motions to dismiss as to both of Plaintiff’s federal
claims (Counts I and II) over which it has original jurisdiction, it must now address whether to
retain jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). In addition
to the federal claims, Plaintiff has asserted state law claims for malicious prosecution, intentional
infliction of emotional distress, and an indemnification claim pursuant to 745 ILCS 10/9-102
against the City.
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Plaintiff does not assert a Brady claim, presumably because his contention is not that exculpatory
evidence was suppressed at trial, but rather that false inculpatory evidence was presented. See Alexander,
692 F.3d at 556; Newsome, 256 F.3d at 752 (“If officers are not candid with prosecutors, then the
prosecutors’ decisions – although vital to the causal chain in a but-for sense – are not the important locus
of action.”).

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The Seventh Circuit, animated by the principle of comity, consistently has stated that “it
is the well-established law of this circuit that the usual practice is to dismiss without prejudice
state supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce
v. Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334
(7th Cir. 1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993);
see also Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (“When all
federal claims have been dismissed prior to trial, the principle of comity encourages federal
courts to relinquish supplemental jurisdiction * * *”); Horton v. Schultz, 2010 WL 1541265, at
*4 (N.D. Ill. 2010). In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir. 1994), the
Seventh Circuit noted that there occasionally are “unusual cases in which the balance of factors
to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness,
and comity-will point to a federal decision of the state-law claims on the merits.”
The first example that the Court discussed occurs “when the statute of limitations has run
on the pendent claim, precluding the filing of a separate suit in state court.” Id. at 1251. That
concern is not present here, however, because Illinois law gives Plaintiff one year from the
dismissal on jurisdictional grounds of state law claims in federal court in which to re-file those
claims in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir.
2008). Nor does it appear that Plaintiff would face in Illinois a potential obstacle in the form of a
broad immunity from malicious prosecution suits conferred on governmental employees. See
Alexander, 692 F.3d at 556 (citing Ind. Code § 34-13-3-3). The Illinois Local Governmental and
Governmental Employees Tort Immunity Act contains a “specific immunity provision that
applies to law enforcement, which essentially mirrors and codifies the malicious prosecution
standard.” Holland v. City of Chicago, 643 F.3d 248, 255 (citing 745 ILCS 10/2–208); see also

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Reno v. City of Chicago, 2012 WL 2368409, at *6 (N.D. Ill. June 21, 2012). Section 10/2–208
provides that a “public employee is not liable for injury caused by his instituting or prosecuting
any judicial or administrative proceeding within the scope of his employment, unless he acts
maliciously and without probable cause.”

745 ILCS 10/2–208 (emphasis added).

Plaintiff’s allegations appear to fall squarely within the exception.

Here,

Finally, dismissal without

prejudice also is appropriate here because substantial judicial resources have not been committed
to the state law counts of Plaintiff's complaint. Wright, 29 F.3d at 1251.
Finding no justification for departing from that “usual practice” in this case, the Court
dismisses without prejudice Plaintiff’s state law claims to re-filing in state court within the oneyear window provided by Illinois law. See In re Repository Technologies, Inc., 601 F.3d 710,
724-25 (7th Cir. 2010); Leister v. Dovetail, Inc., 546 F.3d 875, 882 (7th Cir. 2008) (“When the
federal claim in a case drops out before trial, the presumption is that the district judge will
relinquish jurisdiction over any supplemental claim to the state courts.”).
IV.

Conclusion
For the reasons set forth above, the Court grants in part Defendants’ motion to dismiss

[119] and dismisses Plaintiff’s two federal claims.

The Court dismisses without prejudice

Plaintiff’s state law claims for intentional infliction of emotion distress (conspiracy); malicious
prosecution; and indemnity with leave to re-file in state court within the one-year window
provided by Illinois law.

Dated: July 24, 2013

____________________________________
Robert M. Dow, Jr.
United States District Judge

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