Marcinczyk v. Plewa et al

Filing 51

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 7/8/2011: Mailed notice (mw,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SLWIA MARCINCZYK,

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Plaintiff,
v.
CHICAGO POLICE OFFICER
SLAWOMIR PLEWA, et al.,
Defendants.

No. 09 C 1997

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Chicago’s (City),
Defendant Philip Cline’s (Cline), Defendant Tisa Morris’ (Morris), and Defendant
Debra Kirby’s (Kirby) motion to dismiss Count VI and motion to strike. For the
reasons stated below, the motion to dismiss is granted in part and denied in part, and
the motion to strike is denied.

BACKGROUND
Defendant Bogdan Mazur (Mazur) is allegedly Plaintiff Sylwia Marcinczyk’s
(Marcinczyk) former husband. At the time of the incident in question, Marcinczyk

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was allegedly engaged in divorce proceedings with Mazur, which involved the
custody of their two minor children and their joint business. On or about April 1,
2007, Defendant Officer Slawomir Plewa (Plewa), an officer for the City police
department (Department), and other City police officers allegedly stopped a vehicle
(Vehicle) being driven by Marcinczyk. Plewa was allegedly acting based on a tip
from an anonymous confidential source that illegal drugs and a weapon were in the
Vehicle. The Vehicle was allegedly searched, a gun and illegal drugs were allegedly
discovered in the Vehicle, and Plaintiff was arrested.
Marcinczyk contends that Plewa conspired with Mazur to plant the gun and
illegal drugs in the Vehicle. At Marcinczyk’s trial, Plewa allegedly testified that he
had never met Mazur and that Mazur was not his confidential informant.
Marcinczyk contends that the statements were not true and that Plewa and Mazur
were allegedly later arrested. Plewa was allegedly charged with official misconduct,
perjury, obstruction of justice and other charges. Mazur was allegedly charged with
delivery of a controlled substance, delivery of cannabis, obstructing justice and
disorderly conduct. Marcinczyk brought the instant action and includes in her
complaint claims alleging unreasonable seizure brought pursuant to 42 U.S.C. § 1983
(Section 1983) (Count I), Section 1983 false arrest/imprisonment claims (Count II),
state law false arrest/imprisonment claims (Count III), state law malicious

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prosecution claims (Count IV), state law intentional infliction of emotional distress
claims (Count V), claims brought against City supervisors and a Section 1983 Monell
claim (Count VI), and indemnification claims (Count VII). The City, Cline, Morris,
and Kirby (collectively referred to as “Defendants”) move to dismiss the supervisory
liability claims and the Monell claim in Count VI.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), a court must “accept as true all of the allegations
contained in a complaint” and make reasonable inferences in favor of the plaintiff.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009)(stating that the tenet is
“inapplicable to legal conclusions”); Thompson v. Ill. Dep’t of Prof’l Regulation, 300
F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (internal quotations
omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A complaint that contains factual allegations that are “merely consistent with a
defendant’s liability . . . stops short of the line between possibility and plausibility of
entitlement to relief.” Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

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DISCUSSION

I. Supervisory Liability Claims
Defendants argue that the claims brought against Cline, Morris, and Kirby in
their individual capacities based on supervisory liability should be dismissed. At the
time in question, Cline was allegedly the superintendent of the Department, Morris
was allegedly the Chief Administrator of the Department’s Office of Professional
Standards, and Kirby was allegedly the head of the Department’s Internal Affairs
Division. (A. Compl. Par. 6-8).
Marcinczyk has not alleged facts indicating that Cline, Morris, or Kirby were
personally involved in the search of the vehicle, arrest of Marcinczyk, or subsequent
prosecution of Marcinczyk. In order to hold an individual liable under Section 1983
based on the individual’s supervisory status, a plaintiff must show that the supervisor
“knew about . . . [the] misconduct and facilitated, approved, condoned, or turned a
blind eye to it.” Trentadue v. Redmon, 619 F.3d 648, 653 (7th Cir. 2010). There is
no respondeat superior liability under Section 1983. T.E. v. Grindle, 599 F.3d 583,
588 (7th Cir. 2010); see also Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir.
2003)(stating that Section 1983 “does not allow actions against individuals merely
for their supervisory role of others”). Marcinczyk alleges in a conclusory fashion

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that Cline, Morris, and Kirby “turned a blind eye to” alleged practices and failed to
“reform” an inadequate system for the supervision, training, and discipline of
officers. (A Compl. Par. 37, 71). However, Marcinczyk fails to allege any facts that
plausibly suggest that Cline, Morris, or Kirby “turned a bind eye” as alleged by
Marcinczyk. Therefore, the motion to dismiss the supervisory liability claims
brought against Cline, Morris, and Kirby in their individual capacities in Count VI is
granted. To the extent that Marcinczyk brings claims against Cline, Morris, and
Kirby in their official capacities as representatives of the City, such claims are
dismissed as redundant since Marcinczyk has named the City as a Defendant in this
case.

II. Monell Claim
Defendants argue that Marcinczyk has failed to state a valid Monell claim
against the City. A local governmental entity can only be held liable for an
unconstitutional act “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. 2010).

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Marcinczyk alleges that the City has a policy and practice “to endorse and
encourage abuse of the ‘confidential informant’ process, the arrest of people without
probable cause, and then the pursuit of wrongful conviction through profoundly
flawed investigations.” (A. Compl. Par. 34). As to Marcinczyk’s allegations
regarding confidential informants, Marcinczyk has not connected the alleged City
policies and practices to the underlying alleged constitutional violations in this
action. The Seventh Circuit has explained that “[a] plaintiff seeking to find a
municipality liable under § 1983 must establish a causal nexus between his injury
and the municipality’s alleged policy or custom. . . .” Palmquist v. Selvik, 111 F.3d
1332, 1344 (7th Cir. 1997); see also Monell, 436 U.S. at 694 (indicating that the
plaintiff must show that the policy or custom “inflict[ed] the injury” and is the
“moving force of the constitutional violation”); Thomas v. Cook County Sheriff's
Dept., 604 F.3d 293, 306 (7th Cir. 2010)(stating that “[a] governmental body’s
policies must be the moving force behind the constitutional violation before [a court]
can impose liability under Monell”); Adkisson v. Dart, 2011 WL 250396, at *3
(N.D. Ill. 2011)(agreeing with the defendant that the plaintiff had “not pled a nexus
between his injury and a custom, practice or policy”); Hamilton v. Pabey, 2010 WL
3952279, at *2 (N.D. Ind. 2010)(stating that “[a] plaintiff seeking to find a
municipality liable under § 1983 must also establish a causal nexus between his

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injury and the municipality’s alleged policy or custom”).
Based on the allegations in the complaint, Plewa’s wrongful act was his
involvement in the planting of the illegal drugs and gun in the Vehicle and the
subsequent wrongful arrest and prosecution of Marcinczyk. Plewa’s alleged
statements about acting based on a tip from a confidential informant were merely an
attempt by Plewa to cover up his actions and lies. The use of confidential
informants, the proper use of confidential informants, or the improper use of
confidential informants is not an issue in this case. Plewa’s statements about
confidential informants relate only tangentially to the alleged violations in this case,
which, as indicated above, was the alleged planting of the illegal drugs and gun in the
Vehicle and the subsequent wrongful arrest and prosecution of Marcinczyk. The
alleged policy and practice relating to confidential informants is not sufficiently
connected to the alleged constitutional violations in this case.
Marcinczyk also alleges that the City policy, practice, and custom to arrest
people without probable cause and to pursue wrongful convictions through flawed
investigations and failure to properly train, supervise, and discipline its police
officers resulted in the constitutional violations in this case. (A Compl. Par. 69-71).
At this juncture, Marcinczyk has provided specific and sufficient allegations relating
to the Monell claim against the City. Therefore, Defendants’ motion to dismiss the

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Monell claim in Count VI is denied.
Defendants also request that the court strike some of what they deem
unnecessary boilerplate language from the amended complaint. Motions to strike are
generally disfavored. See, e.g., Redwood v. Dobson, 476 F.3d 462, 471 (7th Cir.
2007)(stating that “[m]otions to strike sentences or sections out of briefs waste
everyone’s time”). The complaint is not excessively long or unclear. In addition, it
is not uncommon for a complaint to contain some boilerplate language and
Defendants have not identified any specific prohibition of the use of such language in
the Federal Rules of Civil Procedure. Also, the court notes that Marcinczyk has the
burden to present sufficient and specific factual allegations to state a claim to relief
that is plausible on its face. The alleged boilerplate statements are specifically
related to Marcinczyk’s Monell claim against the City. Defendants have not shown
that anything in the amended complaint warrants being stricken. Therefore,
Defendants’ motion to strike is denied.

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CONCLUSION
Based on the foregoing analysis, Defendants’ motion to dismiss the claims
brought against Cline, Morris, or Kirby in Count VI is granted and Defendants’
motion to dismiss the Monell claim in Count VI is denied. In addition, Defendants’
motion to strike is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: July 8, 2011

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