Morales-Placencia v. City Of Chicago et al

Filing 81

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 4/21/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JUAN RAMON
MORALES-PLACENCIA, et al.,
Plaintiff,
vs.
CITY OF CHICAGO et al.,
Defendants.

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08 C 5365

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motions of Defendants Jerome
Finnigan, Frank Villareal, and the City of Chicago to dismiss the complaint of Irma
Macias de Rueda, on behalf of her son, Sebastian Morales Macias.1 For the reasons set
forth below, Defendants’ motions are granted.

1

On July 2, 2009, this Court dismissed with prejudice Juan Ramon Morales-Placencia’s untimely complaint
against the City of Chicago (Dkt. No. 38). Defendant Frank Villareal moves to dismiss counts I, II, III, VI, and VII, of
Morales-Placencia’s complaint arguing that the statute of limitations had expired. For the reasons we granted the City’s
motion to dismiss, we grant Frank Villareal’s motion to dismiss. Accordingly, counts I, II, III, VI, and VII of M oralesPlacencia’s complaint are dismissed.

BACKGROUND
According to the allegations of the complaint, which we must accept as true for
purposes of this motion,2 Defendants Jerome Finnigan (“Finnigan”) and Frank Villareal
(“Villareal”) were employed as police officers with the Chicago Police Department. On
September 18, 2004, Finnigan and other Unknown City of Chicago Police Officers
(“Unknown Police Officers”) stopped and searched plaintiff Morales-Placencia at a gas
station in Chicago. During this stop, Finnigan and the other Unknown Police Officers
forced Morales-Placencia to give them his home address and the keys to his home.
Finnigan and the police officers placed Morales-Placencia in a police car, drove to his
home, and retrieved $460,000 from his residence. While at his home, Morales-Placencia
alleges that the police officers terrorized him and his three year old son, Sebastian
Morales Macias (“Sebastian”). Morales-Placencia also alleges that Finnigan and the
other officers threatened to arrest him and inflict great bodily harm to him and his
family if Morales-Placencia ever said anything about the events that had just occurred.
Finnigan and the officers left Morales-Placencia’s residence with his house keys.
Six months later, Finnigan, Villareal, and Unknown Police Officers returned to
Morales-Placencia’s home and coerced their entry into his residence. Morales-

2

Warth v. Seldin, 422 U.S. 490, 501 (1975).

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Placencia, his wife, Irma Macias de Rueda (“Irma”), and Sebastian were present during
the incident. Brandishing firearms, Finnigan, Villareal, and those with them ransacked
the home and, again, threatened Morales-Placencia with arrest and great bodily harm
in front of his son. Fearing for his life and the lives of his family, Morales-Placencia did
not report these events to the authorities. Morales-Placencia claims that the City of
Chicago (“the City”) was aware of these incidents and took no action to stop them.
Before we address the merits of the motions to dismiss, we must first clarify the
procedural posture of this case. On September 18, 2008, Morales-Placencia filed suit
against Finnigan, Villareal, and the City. In his complaint, Morales-Placencia asserted
claims of excessive force, false arrest, a Monell claim against the City, and violation of
his equal protection rights under 42 U.S.C. § 1983. His complaint also included an
action for damages under the Racketeer Influenced and Corrupt Organizations Act
under 18 U.S.C. § 1961 (“RICO”), a theft/conversion claim under Illinois law, and,
against the City, claims of respondeat superior and indemnification. On July 2, 2009,
this Court concluded that Morales-Placencia’s action was time-barred and dismissed the
complaint with prejudice. On February 18, 2011, this Court reinstated MoralesPlacencia’s RICO claim against Finnigan. We now confine our discussion to the claims
brought by Irma on behalf of her minor son Sebastian.

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On February 24, 2011, Sebastian filed an amended complaint against Finnigan,
Villareal, the Unknown Police Officers, and the City. In the amended complaint,
Sebastian asserts, pursuant to 42 U.S.C. § 1983, claims of excessive force (count I),
unreasonable search and seizure (count II), violation of his equal protection rights
(count III), failure to intervene (count VI), and a Monell claim against the City (count
IV). The complaint also includes a state-law claim of intentional infliction of emotional
distress (count VII), and a respondeat superior claim against the City (count VIII).3
Finnigan, Villareal, and the City now move to dismiss all claims for failure to state a
claim upon which relief can be granted.
LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a
complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a
motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff,
construe allegations of a complaint in the light most favorable to the plaintiff, and
accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v.
First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein,
939 F.2d 463, 466 (7th Cir. 1991). To state a claim on which relief can be granted, a
plaintiff must satisfy two conditions: first, the complaint must describe the claim in

3

For clarity purposes, we note that Sebastian does not assert a RICO claim against the Defendants.

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sufficient detail to give the defendant fair notice of what the claim is and the grounds
upon which it rests; and second, the allegations must plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a speculative level. EEOC v.
Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1950 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
With these principles in mind, we turn to the instant motions.
DISCUSSION
I.

Statute Of Limitations
Finnigan argues that the Court should dismiss Sebastian’s complaint because it

is time-barred. Sebastian retorts that the statute of limitations is tolled because Sebastian
is a minor. Section 1983 claims are personal to the injured party. Claybrook v.
Birchwell, 199 F.3d 350, 357 (7th Cir. 2000). Under Illinois law, if a minor has statelaw claims and section 1983 claims that accrue during his minority, then he may bring
the action within two years after he has attained eighteen years of age. 735 Ill. Comp.
Stat. 5/13-211; Reyes v. City of Chi., 585 F. Supp.2d 1010, 1016 (N.D. Ill. 2008).
Sebastian is not yet eighteen years old and his mother, on Sebastian’s behalf, has
brought this action against defendants for alleged unlawful conduct. Accordingly, the
applicable statute of limitations does not bar Sebastian’s claims against the defendants.

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II.

Excessive Force Claim
Finnigan, Villareal, and the City move to dismiss Sebastian’s claim of excessive

force because the allegations of the complaint are insufficient to state a claim upon
which relief could be granted. Specifically, the movants argue that Sebastian did not
allege that the police officers exerted any physical force against him and that, in any
event, pointing a firearm at a person does not constitute excessive force in violation of
the Fourth Amendment. “To decide whether the amount of force used during a seizure
is ‘excessive,’ [a court must] examine the totality of the circumstances to determine
whether the intrusion on the citizen’s Fourth Amendment interests was justified[.]”
Jacobs v. City of Chi., 215 F.3d 758, 773 (7th Cir. 2000). Excessive force claims are
analyzed under a reasonableness standard. Graham v. Connor, 490 U.S. 386, 395
(1989). To state a claim for excessive force, there must be “some force,”some
“physically abusive governmental conduct,” some “physical force,”applied to a suspect.
McNair v. Coffey, 279 F.3d 463, 467 (7th Cir. 2002). In the instant matter, the only
excessive force allegation that Sebastian sets forth is that Finnigan, Villareal, and other
officers, were “brandishing” firearms while ransacking the home and threatening
Morales-Placencia with great bodily harm. “Unless done in a particularly threatening
manner, . . . pointing a firearm at a person will not, by itself, constitute excessive force.”

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Moore v. City of Chi., 2008 WL 516338, at *4 (N.D. Ill. Feb. 20, 2008). Sebastian does
not allege that the police officers pointed the gun at him, or that the officers verbally
threatened to pull the trigger, or physically indicated an imminent threat to actually fire
the weapon. Id. We conclude that Sebastian has not sufficiently pled a plausible claim
for excessive force against him. Accordingly, the motions to dismiss the excessive force
claim are granted.
III.

Fourth Amendment Search and Seizure Claim
Sebastian asserts that the police officers’ entry into his father’s house violated his

Fourth Amendment right to be free from unreasonable searches and seizures. We first
address Sebastian’s unreasonable search claim. Sebastian does not allege that he was
personally searched, that he or his property was the object of the search, or that the
search of the home had anything to do with him. Under these circumstances, before
Sebastian can assert a Fourth Amendment violation, he must establish that he has
standing. A person “objecting to the search of a particular area bears the burden of
proving a legitimate expectation of privacy in the area searched.” U.S. v. Duprey, 895
F.2d 303, 309 (7th Cir. 1989). The complaint contains no such allegations.
Sebastian next contends that he was unreasonably seized by Finnigan, Villareal,
and the Unknown Police Officers. Whether a person is seized turns on whether the facts
show that a reasonable person would have believed, that in the presence of police

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officers or some other show of authority, he was not free to leave. United States v.
Mendenhall, 446 U.S. 544, 553-54 (1980). Here, the question becomes whether a three
year old, under the circumstances described in the complaint, could reasonably believe
that he was under official custody while in his home. Based on the allegations of the
complaint, this Court concludes that Sebastian, a three year old child, did not have the
capacity to understand that his liberty was in any manner significantly curtailed.
The allegations of the complaint clearly express the notion that MoralesPlacencia was the target of the officers’ conduct and it was Sebastian’s father whose
property was searched and, as alleged, $460,000 seized. It is simply not plausible that
three year old Sebastian was anything but a bystander who may have witnessed illegal
acts taking place. None of that illegal conduct was directed toward him, as the absence
of specific allegations in the complaint necessarily manifest. Therefore, the motions to
dismiss Sebastian’s unreasonable search and seizure claims are granted.4
IV.

Intentional Infliction of Emotional Distress
The disposition of the claims discussed above leaves only Sebastian’s intentional

infliction of emotional distress claim. This claim was brought pursuant to the
supplementary jurisdiction provided in 28 U.S.C. § 1367. Since the granting of the
motions to dismiss eliminates all claims over which this Court has original jurisdiction,
4

Since Sebastian’s complaint fails to state a constitutional violation as required under section 1983, Counts III
(Equal Protection claim), IV (Monell claim), and VI (Failure to Intervene), are dismissed.

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we decline to retain jurisdiction over the remaining state-law claim of intentional
infliction of emotional distress. Accordingly, Sebastian’s intentional infliction of
emotional distress claim is dismissed.
V.

Motion For Leave to File A Second Amended Complaint
Amy motion for leave to file a second amended complaint must be separately

filed and presented.
CONCLUSION
Based on the foregoing analysis, the claims presented on behalf of Sebastian
Morales Macias, a minor, and brought by his mother, Irma Macias de Rueda, are
dismissed.
It is so ordered.

Charles P. Kocoras
United States District Judge
Dated: April 21, 2011

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