Grooms v. City of Chicago et al
Filing
384
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the dismissal motion of most of the individual-officer defendants and the City is granted in part and denied in part [280, 316]; Fahey's motion to dismiss 365 is granted; and United Road's motion to dismiss 365 is granted. The only remaining claims are: (1) violation of the Fourth Amendment, asserted under Section 1983 against Powell, Fisher, Houston, and Davis for the Novem ber 2007 arrest and detention; (2) conspiracy under Section 1983 against the same four individuals for the November 2007 events; (3) false imprisonment, false arrest, and malicious prosecution claims under Illinois common law against the same four in dividuals for the November 2007 events; and (4) indemnification against the City for any potential liability for damages by the City employees named in these claims. Discovery must be limited those claims related to Love's arrest on November 2007 at the City auto pound and the ensuing imprisonment. All other claims and Defendants are dismissed. Emailed and mailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALLISAH LOVE,
Plaintiff,
v.
CITY OF CHICAGO, DAVID TENCZA,
JOHN LEE, NIYELL POWELL, APRIL
FISHER, IRIS HOUSTON, GLENN
DAVIS, MR. SUTTER, TERRANCE
MCMAHON, TERRANCE FAHEY,
JAMES MURRAY, MARTIN ANDERSON,
GLENN LANIER, JR., MR. CADDIGAN,
MR. WOODS, MS. URBON,
MR. ROBINSON, UNITED ROAD
TOWING, INC., and other UNNAMED
PERSONS,
Defendants.
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No. 09 C 03631
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Allisah Love, proceeding pro se, brings constitutional and Illinois
common-law claims against myriad Defendants: the City of Chicago; twelve Chicago
Police Department (CPD) officers; United Road Towing, Inc., a private company
that contracts with the City to operate an automobile impound lot; and three
employees of the City’s Office of Emergency Management and Communications
(OEMC), where Love formerly worked. Underlying the claims are several incidents
in which Love was allegedly falsely arrested, defamed, wrongfully fired, retaliated
against, and otherwise subjected to a conspiracy to deprive her of constitutional and
statutory rights.1 (This list is not exhaustive, as detailed below.) Defendants now
move separately to dismiss the various claims under Federal Rule of Civil
Procedure 12(b)(6). The motions are granted in large part and denied in part. The
majority of Love’s claims and many named Defendants are dismissed; only a narrow
set of claims related to one of Love’s arrests and detainments, which occurred in
November 2007, will survive.
I. Background
A. Factual Allegations
In evaluating the motions to dismiss, Love’s factual allegations must be
accepted as true with reasonable inferences drawn in her favor. Ashcroft v. al–Kidd,
131 S.Ct. 2074, 2079 (2011). For ease of reference, the allegations, which revolve
around several discrete incidents related to Love’s employment with the City and to
separate altercations with the CPD that span years, are presented in chronological
order. The complaint is voluminous and includes several tangents, but the operative
facts are as follows.
1. Employment with OEMC
In March 1998, Love accepted employment with OEMC in the position of
Police Operator I, which functions as a “police call taker.” Third Am. Compl. ¶¶ 125,
126. Two years prior, Love had passed an examination to work as a police
dispatcher, or Police Operator II. Id. ¶ 124. The different responsibilities required
by the two positions are not clear, but Operator I provides for a pay grade below
1Subject-matter
jurisdiction is proper over the federal claims under 28 U.S.C. § 1331
and over the state-law claims under 28 U.S.C. § 1367(a).
2
that of Operator II. Id. ¶ 125. When Love began as an Operator I, she and other
candidates who had previously passed the Operator II exam were told by the City
that they would be moved into that higher-paying job once positions opened, before
outside applicants were considered. Id.
Despite that representation, in June 1998, three months after Love started
work, the City posted a job announcement for 32 Operator II positions, requiring
that applicants have at least 18 months of experience in 911-dispatching, a
condition Love did not meet. Id. ¶¶ 127-28. Love contends that the City
intentionally engaged in a deceptive employment practice in filling Operator II slots
in this manner and refusing to transition Love into the role despite further
vacancies. Id. ¶ 129. Love complained to her union, but the complaint went
nowhere. Id. ¶¶ 130-31.
According to Love, her union-inquiries and complaints about the hiring
practices (it is unclear to whom exactly Love made these complaints) motivated the
City to conspire to retaliate against her. Id. ¶ 134. To that end, between 1998 and
2000, Love received twelve disciplinary actions, ten of which, she says, were
unfounded; among these was a 20-day suspension after Love allegedly handed in a
broken handset, even though a log showed that fifteen other employees had turned
in damaged handsets. Id. ¶ 136. Furthermore, during the course of 2000, Love made
at least ten reports of supervisor harassment, none of which was ever addressed (no
further details are provided about the nature of this harassment). Id. ¶ 138. In June
of that year, Love also sought employment with the Los Angeles Police Department,
3
but alleges that her application was denied because the City of Chicago failed to pay
her college tuition and gave negative feedback about her to the LAPD.2 Id. ¶ 139.
Finally, despite taking and passing the City’s firefighter examination twice, the
City never contacted her to follow up on employment. 3 Id. ¶ 140.
In particular, Love names three of her OEMC supervisors, Defendants James
Murray, Martin Anderson, and Terrance Fahey, as among the participants in the
City’s conspiracy against her. Id. ¶ 137. In August 2000, Anderson, apparently in
retaliation, demanded that Love resubmit paperwork related to her scheduled
furlough. Id. ¶ 141. On December 10, 2000, Love reported an incident of harassment
involving Murray (the underlying details of the harassment are not provided) to
Fahey, evidently to no effect. Id. ¶ 142. That same day, Fahey refused Love’s
request to use sick leave, even though Love was ill, had plenty of hours she could
use, and had followed standard procedures. Id. ¶¶ 142-43. Love was forced to leave
work without authorization as a result and was later treated at a hospital (the
nature of her illness is not described). Id. ¶¶ 143-44. When Love returned to work a
few days later, she was suspended and, following a departmental review held
“without proper notification” and where she was unrepresented by her union,
OEMC terminated her employment on January 19, 2001. Id. ¶¶ 148, 150, 152. Love
2The
basis of Love’s suggestion that the City had an obligation to pay for her college
tuition is unclear.
3Love
also notes that in 1991 she took the City’s examination to become a police
officer but, “[v]ia another deceptive hiring practice, [she] was notified that she was
disqualified for the position due to her ‘psychological evaluation.’” Third Am. Compl. ¶ 123.
Aside from this aside, Love does not appear to premise any of her claims on her failure to
obtain employment as a CPD officer.
4
alleges that even after her firing, the City retaliated against her by contesting her
claim for unemployment benefits, though those benefits were ultimately approved.
Id. ¶¶ 155-56.
2. April 2001 Arrest at Restaurant
About three months after her firing, Love was arrested while attending a
performance sponsored by a local radio station at a restaurant on the South Side of
Chicago. Id. ¶¶ 158, 177. Love arrived at the event, held on April 2, 2001, but,
demanded a refund of her money because she was dissatisfied that the venue had
no seating. Id. ¶¶ 157-59. While Love was waiting for the restaurant manager to
sort out her request, one of the event’s security personnel told her that she had to
leave, and then grabbed and shoved her, forcing her down a staircase. Id. ¶¶ 162-64.
Evidently, CPD officers were already present outside; Love approached one to
obtain the name of the man who had shoved her. Id. ¶ 165. This officer reported to
Love, falsely, that the security man’s name was Herman Jones and that he worked
for the sheriff’s department, when in fact he was a CPD officer, Defendant Glen
Lanier, Jr. Id. ¶¶165-66. None of the other CPD officers on site, including
Defendants Caddigan, David Woods, and Urbon, agreed to take the complaint Love
wished to make against Lanier.4 Id. ¶ 167.
After Love went to a local police station to file her complaint, she was
directed back to the restaurant so that police could identify the security officer who
had pushed her. Id. ¶ 170. After some confusion and a call to 911, Love was driven
4The
third amended complaint does not specify the first names of these officers. The
City’s brief identifies Woods’ first name as David. R. 280, City Defs.’s Br. at 1.
5
back to the restaurant, where Caddigan, Woods, and Urbon were still present, and
she pointed Lanier out. Id. ¶¶ 171-76. After Lanier was questioned by the officers,
however, it was Love who was placed under arrest. Id. ¶¶ 176-77. When asked why
she was being arrested, Woods answered, “Disorderly conduct.” Id. ¶ 177. When
Love appeared for her hearing on the charge, the case was dismissed, because the
State refused to prosecute. Id. ¶ 181. Love contends that Lanier, Caddigan, Woods,
and Urbon filed a false police report against her to bring the disorderly conduct
complaint, in retaliation of her pending complaints against the City (evidently, her
accusations of unfair hiring practices at OEMC). Id. ¶ 180.
3. October 2007 Arrest of Love’s Brother
The story picks up six years later. In late October 2007, Love’s teenage
brother (his name is Christopher Grooms), along with two other juveniles, were
stopped and searched by CPD Officers David Tencza and John Lee (they are named
as defendants). Id. ¶ 27. The teenagers were driving a car owned by Uylonda
Henderson, the mother of one of the two boys riding with Grooms. Id. ¶ 30. Love
alleges that, during the stop, one of the teenagers witnessed Tencza plant
something in the car that Tencza and Lee claimed was drugs. Id. ¶ 34. Love’s
brother, and only he, was arrested for unlawful possession of a controlled substance,
id. ¶ 35, and Henderson’s car was impounded, id. ¶ 37. The felony charge was
dismissed by a state court on November 13, 2007, however, after the State declined
to prosecute following lab results that showed that the substance found (allegedly
planted) in the car was not a controlled substance. Id. ¶¶ 53, 54.
6
4. November 2007 Arrest at Auto Pound
Meanwhile, at Henderson’s request, Love assisted her in trying to get
Henderson’s car released by the City. Love spoke on Henderson’s behalf at an
administrative hearing regarding the impoundment. Id. ¶¶ 45, 49, 57. Love alleges
that counsel for the City purposefully sought to dismiss the “administrative hearing
case” so that the City would not have to produce the lab reports on the substance
found in the car. Id. ¶ 60. After much expense and hardship to her family due to the
lack of a car for nearly a month, Henderson won an order directing the City to
return the impounded car, at no cost, on November 19, 2007. Id. ¶¶ 62, 63.
On November 20, Love and Grooms, along with Henderson and her son, went
to pick up the car at a lot located on the South Side. Id. ¶ 68. Unfortunately,
Henderson’s car would not start after sitting idle for a month, even after a jump
from one of the lot’s employees. Id. ¶¶ 69, 70. Lot personnel refused to allow
Henderson’s son to bring his car into the lot, or to push Henderson’s car outside, to
try giving it a jump that way. Id. ¶ 72. Henderson and Love were instead told that
they would have to pay for one of the pound’s tow trucks to pull the car the thirty
feet necessary to bring it outside of the lot. Id. ¶¶ 71, 73.
At that point, Love called 911 to report that the pound was refusing to let
Henderson retrieve her car. Id. ¶ 74. Having spent two hours trying to get the
pound to release the car, Love went to a trailer on the site in order to find and speak
with a manager. Id. ¶¶ 75, 76. After she was ignored by two more employees inside
the trailer, a security officer, later identified as Defendant Niyell Powell,
7
approached Love and pointed to a sign stating that only vehicle owners were
allowed inside of the trailer. Id. ¶¶ 78, 79. Love demanded Powell’s name, but he
refused and said that he would get the manager. Id. ¶ 80. When Love asked again
for his name, Powell responded, “Officer Muhammad.” Id. ¶ 81. Love later
discovered from one of the supervisors at the pound that Powell was an off-duty
police officer who was contracted to work at the pound by a company called United
Road Services. Id. ¶ 83. As Love left the trailer, Powell followed her. Id. ¶ 84. Love
asked him twice if he was going to get a manager but Powell said nothing. Id. ¶ 85.
Love informed Powell that if he did not get a manager, she would call the CPD and
make a complaint. Id. ¶ 87. As Love then took out her phone to do so, Powell took
his out as well and called 911. Id. ¶ 88. Love also called 911. Id. ¶ 90.
CPD Officers, Defendants April Fisher and Iris Houston, arrived and spoke
with Powell. Id. ¶ 90. Another officer, Defendant Davis, then arrived and, without
asking any questions or allowing Love to speak, ordered her to “[p]ut the phone
down and put your hands behind your back.” Id. ¶ 91. Fisher and Houston, neither
of whom had spoken with Love since arriving to investigate, went ahead and
handcuffed her, searched her, and placed her in the back of their squad car. Id.
¶ 92. Henderson, her son, and Grooms all repeatedly asked why Love was being
arrested; after ignoring them, Davis finally responded, “He [Powell] wants her
arrested, so she’s being arrested.” Id. ¶ 93. Davis ultimately informed Love that she
was being arrested for trespassing. Id. ¶ 95. According to Love, Powell never told
her to leave the property. Id. ¶ 96.
8
Love alleges that when she was taken to the police station, Defendant Officer
Francis Sutter came into the room where she was being held and told Fisher and
Houston to add additional charges to Love’s rap sheet in order to increase her
bond.5 Id. ¶ 101. Sutter also told Love that the City’s auto pound was “state
supported property” and that he could “up” the charge. Id. ¶ 103. Fisher and
Houston upgraded the charge to criminal trespassing and added a charge of
resisting arrest. Id. ¶ 102. Defendant Terrance McMahon, identified as the Watch
Commander, later entered the room and told the officers to add “attempt to defeat”
to Love’s charges. Id. ¶ 104. According to Love, Fisher and Houston joked in front of
her that “people who do little or nothing get the book thrown at them, and the
people who are hard core get off easy.” Id. ¶ 105.
When Love’s mother and Henderson arrived at the police station and
inquired about Love’s release, Fisher and Houston revealed to them that Love “‘had
been arrested before’ and had ‘a history’ with the police department.” Id. ¶ 111.
Love had been arrested once before, during the 2001 incident at the restaurant. Id.
¶ 113. In Love’s view, her arrest at the auto pound, along with the arrest of her
brother in October 2007, was part of the City’s “continuing conspiracy to retaliate
against [her] and her family for past and current complaints made against the City,
and its agents.”6 Id. ¶ 120.
5Sutter’s
first name was not identified by the third amended complaint. The City
refers to him as Francis in its brief. City Defs.’s Br. at 1.
6Love alleges a further reason for the City’s desire to retaliate against her family,
namely that her father, a former CPD officer himself, had been a member of a class action
lawsuit filed against the City for discriminatory hiring practices. Third Am. Compl. ¶ 122.
9
5. December 2013 Search
The final chapter to Love’s story occurred another six years later. On the
night of December 12, 2013, just after midnight, Defendant CPD Officer Robinson
(no first name is provided) and another police officer showed up at the home where
Love and her brother Grooms were staying and demanded entry. Id. ¶ 214.
Robinson allegedly refused to show identification and claimed that an emergency
call had originated from that location, stating that a pregnant woman was being
beaten. Id. ¶ 215. Although Love informed the officers that there was no pregnant
woman in the home, they continued to bang on the door, leading Love to call 911.
Id. ¶ 216. The dispatcher with whom Love spoke confirmed that an emergency call
had been made about the home, and Love allowed the officers into the home. Id.
¶¶ 217-18. Once in the residence, Robinson acted in an intimidating manner. Id.
¶ 218.
Love does not specify the outcome of the search of the home or how and when
Robinson and the other officer left. She recounts only that she tried to lodge a
complaint with the Independent Police Review Authority but was stymied because
the City influences “policy in favor of protection [of] policy officers.” Id. ¶ 225.
B. Procedural History
Love filed the first complaint in this case on June 12, 2009. R. 2, Compl. She
filed her third, currently operative amended complaint on November 14, 2014. See
Third Am. Compl. In addition to the City of Chicago, it names a number of its
employees as individual defendants, who can be divided into two main groups for
10
ease of reference. First, the various CPD Defendants: those officers involved in
Love’s 2001 arrest outside the restaurant (Lanier, Caddigan, Woods, and Urbon),
those involved in Love’s brother’s 2007 arrest (Tencza and Lee), those involved in
Love’s 2007 arrest at the auto pound (Powell, Fisher, Houston, and Davis) and
subsequent detention (Sutter and McMahon), and the one involved in 2013 home
search (Robinson). Second, there are the OEMC managers (Fahey, Murray, and
Anderson). However, because the latter two were never properly served with
summons, the Court lacks personal jurisdiction to hear claims against them, leaving
only Fahey in this category. See R. 346, Murray Summons Returned Unexecuted,
Dec. 15, 2014; R. 375, Anderson Summons Returned Unexecuted, Mar. 24, 2015.
The third amended complaint also named for the first time United Road Towing.
Love’s previous complaints had incorrectly named an entity called United Road
Services, which was eventually dismissed from the case. See R. 360, Minute Entry
dated Jan. 16, 2015.
Against this cast of Defendants, Love raises fifteen separate counts: Counts 1
and 2 allege false arrest and false imprisonment by the various CPD Officers
involved in Love’s arrests in 2001 and 2007 (with the exception of Sutter and
McMahon); Count 3, defamation and public disclosure of private facts against
Officers Fisher and Houston specifically for revealing her prior arrest to her mother
and Henderson following Love’s 2007 arrest; Count 4, malicious prosecution against
the CPD Officers involved in Love’s 2001 and 2007 arrests (except Sutter and
McMahon); Count 5, a Monell claim against the City based on Love’s continued
11
treatment by the CPD and OEMC; Counts 6 to 9, conspiracy by the CPD
Defendants and Fahey to violate her constitutional rights under 42 U.S.C. §§ 1983,
1985, and 1986; Count 10, retaliation by the same individuals against Love for
engaging in protected conduct; Count 11, wrongful termination/retaliatory
discharge by Fahey and other unnamed persons; Count 12, breach of contract by the
City in relation to her employment at OEMC; Count 13, intentional infliction of
emotional distress by the CPD Defendants and Fahey; Count 14, indemnification by
the City of any damages owed by the CPD Defendants and Fahey; and Count 15,
which alleges that United Road Towing is liable under a theory of respondeat
superior for the actions of its employee, Powell.7 See Third Am. Compl. ¶¶ 243-330.
Three separate motions to dismiss are pending. The first was filed by the City
on behalf of itself and the CPD Defendants—with the exception of Powell, who,
although a CPD officer, was not on duty during his involvement with Love’s 2007
arrest. R. 280, City Defs.’s Mot. Dismiss.8 Powell, who has appeared pro se, moved
to be allowed to join the City Defendants’ motion and adopt its arguments, which
the Court granted. See R. 316, Minute Entry dated Nov. 4, 2014. But Powell was
7The
caption of the third amended complaint correctly names United Road Towing,
Inc., but the relevant paragraphs in the body of the complaint continue to refer to the
dismissed entity, United Road Services. Compare Third Am. Compl. at Caption with id.
¶¶ 12, 18, 330. Because Love’s intent to name United Road Towing is clear, the Court
construes the body of the third amended complaint to refer to that company and not the
dismissed misnomer.
8Although
Love’s third amended complaint was filed after the City Defendants’
motion to dismiss, which was made in reference to the prior operative complaint, the Court
ordered that the motion be applied to the present complaint because the only change
between the versions was the inclusion of the proper name of United Road Towing. See R.
338, Minute Entry dated Nov. 19, 2014.
12
explicitly warned that he was taking a risk by not advancing his own arguments, as
the Court would apply the City Defendants’ arguments only to the extent that they
clearly applied to him. Id. The other two motions were filed by United Road Towing
[R. 365] and Fahey [R. 355], who also adopted many of the arguments set forth by
the City Defendants.
II. Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give
the defendant fair notice of what the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citation omitted). The Seventh Circuit has explained that this rule
“reflects a liberal notice pleading regime, which is intended to ‘focus litigation on
the merits of a claim’ rather than on technicalities that might keep plaintiffs out of
court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[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 (2009) (quoting Twombly,
550 U.S. at 570). These allegations “must be enough to raise a right to relief above
13
the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to
the assumption of truth are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79. Unsupported conclusions of fact, moreover,
need not be accepted as true. See St. John’s United Church of Christ v. City of
Chicago, 502 F.3d 616, 633 (7th Cir. 2007).
III. Discussion
The majority of Love’s claims fail to state a claim upon which relief may be
granted, even when given the “liberal construction” due the filings of a pro se
plaintiff. See Nichols v. Michigan City Plant Planning Dep’t, 755 F.3d 594, 600 (7th
Cir. 2014) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Some of the claims
must be dismissed because, on the face of the complaint, the claims were brought
after the expiration of the statute of limitations. The only claims that do survive at
this pleadings stage, and barely, are those arising out of Love’s November 2007
auto-pound arrest. The Court addresses each of the counts in the third amended
complaint in turn.
A. False Arrest and False Imprisonment
Love raises claims for both false arrest and false imprisonment as a result of
her 2001 and 2007 altercations with CPD, doing so via § 1983 as alleged violations
of the Fourth Amendment’s protections against unlawful seizures. Third Am.
Compl. at Counts 1, 2. In light of her pro se status, the Court also construes the
complaint broadly to assert false arrest and imprisonment claims under Illinois
common law as well.
14
1. 2001 Claims
To begin, Love’s claims related to her 2001 arrest outside the South Side
restaurant—implicating Lanier, Caddigan, Woods, and Urbon—can be dismissed as
untimely. Illinois applies a two-year limitations period to personal injury claims,
like those for false arrest and imprisonment. See 735 ILCS 5/13-202. This same
period applies for Love’s federal claims because “in § 1983 actions, federal courts
apply the statute of limitations governing personal injury actions in the state where
the injury took place.” Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013) (citing
Hondo, Inc. v. Sterling, 21 F.3d 775, 778 (7th Cir. 1994)). State law supplies the
time limit (two years), but federal law supplies the rule of decision for when the
claim accrues, Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993): as pertinent
here, a § 1983 action “begins to run ‘at the time the claimant becomes detained
pursuant to legal process’—that is, when the arrestee is bound over by a magistrate
or arraigned on charges.” Serino, 735 F.3d at 591 (quoting Wallace v. Kato, 549 U.S.
384, 397 (2007)).
“Although the statute of limitations is ordinarily an affirmative defense that
must be pleaded under Fed. R. Civ. P. 8(c), a district court may dismiss under Rule
12(b)(6) something that is indisputably time-barred[.]” Small v. Chao, 398 F.3d 894,
898 (7th Cir. 2005) (citing Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000)).
Love’s claims related to the 2001 arrest are indisputably time-barred. On the face of
the pleadings, she was taken into custody in April 2001. Third Am. Compl. ¶¶ 157,
177. The complaint does not specify when she was “bound over by a magistrate,”
15
arraigned, or otherwise detained pursuant to legal process. But it does state that
the charges were dropped in short order, and she was certainly released in 2001
(she relates that she was hired by a new employer in August of that year). Id.
¶¶ 181, 184. Love filed this action in 2009, eight years after her arrest and
detention and, even without precise dates, about six years after the limitations
period ran.9
2. 2007 Claims
The claims related to the November 2007 arrest—involving Powell, Fisher,
Houston, and Davis—are a different matter. The City and CPD Defendants do not
challenge their timeliness, instead arguing that Love cannot state a claim to relief
because the allegations themselves show that the CPD Defendants had probable
cause to arrest and detain her. City Defs.’s Br. at 7-9. Although it is a close call, this
contention fails and the claims survive.
“A cause of action under § 1983 requires a showing that the plaintiff was
deprived of a right secured by the Constitution or federal law, by a person acting
under color of law,” someone who “misuse[s] power” while “clothed with the
authority of state law.” Thurman v. Vill. of Homewood, 446 F.3d 682, 687 (7th Cir.
2006) (“[A]cts by a state officer are not made under color of state law unless they are
related in some way to the performance of the duties of the state office.”) (citations
9Love
argues that the 2001 arrest and detention were part of a “continuing tort,” the
conspiracy by City employees to retaliate against her, and that the limitations period
therefore should run only with the last overt act in furtherance of that conspiracy, making
these claims timely. R. 308, Pl.’s Resp. to City Defs. Br. at 2-3. This contention is without
merit. Because, as discussed below, Love’s claims of an overarching conspiracy by the City
through the years are not plausibly pled, she has no basis to use them as a lifejacket to
preserve her 2001 claims.
16
and internal quotation marks omitted).10 Such a wrongdoer violates the Fourth
Amendment, as well as Illinois provisions against false arrest and false
imprisonment, where he seizes a person (as Love undoubtedly was) unreasonably,
that is, without probable cause. See Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 344
(7th Cir. 2010); Bentz v. City of Kendallville, 577 F.3d 776, 779 (7th Cir. 2009); Boyd
v. City of Chicago, 880 N.E.2d 1033, 1044 (Ill. App. Ct. 2007) (citing Reynolds v.
Menard, Inc., 850 N.E.2d 831, 837 (Ill. App. Ct. 2006)). Probable cause exists “if the
totality of the facts and circumstances known to the officer at the time of the arrest
would warrant a reasonable, prudent person in believing that the arrestee had
committed, was committing, or was about to commit a crime.” Abbott v. Sangamon
Cnty., Ill., 705 F.3d 706, 714 (7th Cir. 2013) (citations omitted).
The Court cannot say that, with all reasonable inferences drawn in her favor,
Love has pled herself out of court on the issue of probable cause for the November
2007 arrest and detention. The City and CPD Defendants argue that the allegations
show that the responding officers, Fisher, Houston, and Davis, correctly relied on
Powell’s complaint that Love was trespassing in the auto pound. City Defs.’s Br. at
7-8. It is true that, ordinarily, “[w]hen an officer has received his information from
some person—normally the putative victim or an eyewitness—who it seems
10Powell
was not on duty as a CPD officer during the relevant events. However, “[a]
private actor … can have acted under color of law if the plaintiff can establish that ‘(1) the
private individual and a state official reached an understanding to deprive the plaintiff of
her constitutional rights and (2) the private individual was a willful participant in joint
activity with the state or its agents.’” Thurman, 446 F.3d at 687 (quoting Hanania v. LorenMaltese, 212 F.3d 353, 356 (7th Cir. 2000)). Powell is implicated by Love’s state-law claims
as well, as “a private individual may be held liable for false arrest if the defendant goes
beyond merely giving information and participates in making an arrest which turns out to
be unlawful.” Olinger v. Doe, 163 F. Supp. 2d 988, 990 (N.D. Ill. 2001) (citations omitted).
17
reasonable to believe is telling the truth, he has probable cause to arrest the
accused perpetrator.” Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998)
(citations omitted) (giving example of supermarket guard who reports having seen a
customer shoplift). But there is an important caveat: the police can rely solely on
that victim “unless the complaint would lead a reasonable officer to be suspicious, in
which case the officer has a further duty to investigate.” Beauchamp v. City of
Noblesville, Ind., 320 F.3d 733, 743 (7th Cir. 2003). “An officer should pursue
reasonable avenues of investigation and may not close his eyes to facts that would
clarify the situation.” McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009); see also
Guzell v. Hiller, 223 F.3d 518, 520 (7th Cir. 2000) (“Police must act reasonably on
the basis of what they know … [and] they can’t close their eyes to [ ] additional
information.”).
As the pleadings tell it, Love entered the trailer at the auto pound to look for
a manager but, when Powell silently pointed to the sign that only vehicle owners
were allowed inside, Love left the trailer.11 Third Am. Compl. ¶¶ 77, 79. Now on the
grounds of the lot, a place of business presumably open to the public and not only to
vehicle owners (Love and her companions had spent two hours on the site without
issue while trying to get Henderson’s car released), Love and Powell both called 911
11Illinois
law makes it unlawful for a person to “knowingly and without lawful
authority … remain[ ] within or on a building” or to “remain[ ] upon the land of another,
after receiving notice from the owner or occupant to depart.” 720 ILCS 5/21-3(a). However,
the restriction does “not apply to being in a building which is open to the public while the
building is open to the public during its normal hours of operation,” nor to “a person who
enters a public building under the reasonable belief that the building is still open to the
public.” Id.
18
to report a problem with the other. Id. ¶¶ 75, 88, 90. Not once did Powell tell Love to
leave the property. Id. ¶ 96. Officers Fisher and Houston arrived first and proceeded
to speak with, and only with, Powell. Id. ¶ 90. Officer Davis then arrived. Id. ¶ 91.
It is unclear to which of the 911 calls, Love’s or Powell’s, the three officers were
responding. But according to the complaint, Davis went (after he arrived at the lot)
straight to Love, did not allow her to speak or ask her any questions, and placed her
under arrest. Id.
On these facts, the false arrest claim remains in place, at least at this point.
The key factual allegation is that none of the officers asked Love, or Grooms,
Henderson, and her son, who had all been present, about what had happened. Not
that the officers necessarily had to believe what Love and these witnesses would
have said, but given the fact that the officers must have understood that Love and
Powell had some form of conflict (both having called 911), the failure to even
investigate further by speaking with Love could be deemed as unreasonable. With
inferences made in the light most favorable to Love, these allegations plausibly
suggest that the CPD officers arrested her, acting only and without question on
their fellow officer Powell’s (it can be inferred that Powell made his CPD-status
known to the others, if they did not already know it) desire to be done with her
efforts to get Henderson’s car released. See People v. Jardon, 913 N.E.2d 171, 184
(Ill. App. Ct. 2009) (identifying witness’s motive as one factor that should lead police
to assess totality of circumstances rather than rely only on that witness’s
complaint). Remember that Davis justified detaining Love by tersely saying,
19
“[Powell] wants her arrested, so she’s being arrested.” Id. ¶ 93. That Love was
standing in an area open to the public without posing an immediately evident
danger was another reason (not by itself, but given the other circumstances) why
the officers should not have relied solely on Powell’s complaint. See Zitzka v. Vill. of
Westmont, 743 F. Supp. 2d 887, 913 (N.D. Ill. 2010) (detective should have been
skeptical of witness testimony on account of her conflict with alleged trespasser and
because the low gravity of alleged crime, among other factors, did not push for an
immediate arrest) (citing Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617,
625 (7th Cir. 2010)).
The suggestion here is not that these officers needed to carry out a full-blown
investigation into whether Love had permission to be on the lot; indeed, not much
additional effort at clarification might have sufficed to defeat this claim (and the
entire case) as a matter of law. See, e.g., Kelley v. Myler, 149 F.3d 641, 647 (7th Cir.
1998) (officers relied not only on complaint by owner of a Wendy’s but proceeded to
observe defendant in parking lot and interact with her and ask her to leave, at
which point they had probable cause to arrest for criminal trespass). To be clear,
discovery may well unearth a factual dispute as to whether such minimal efforts
were made, or discovery might sufficiently fill in the gaps in terms of what Powell
told the officers to allow Defendants to clear the admittedly low threshold of
probable cause. For now, however, the false arrest (and false imprisonment) claims
stemming from November 2007 survive.
20
B. Malicious Prosecution
Love also raises claims under § 1983 arising out of the 2001 and 2007
incidents, on the related theory of malicious prosecution. Third Am. Compl. at
Count 4. The Seventh Circuit has held that a plaintiff may not maintain an action
under § 1983 for malicious prosecution under the due process clause where the state
provides (as Illinois does) a state-law claim for that injury. Smith v. Lamz, 321 F.3d
680, 684 (7th Cir. 2003) (citing Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir.
2001)). This claim is therefore dismissed.
But the analysis does not end there. As with her false arrest and
imprisonment claims, although she does not explicitly brand her malicious
prosecution claim as such in the complaint, the Court must once again construe it
liberally to raise a state-law claim in addition to a federal one. After all, it is “the
opportunity for state-law remedies for wrongful-prosecution claims” that “precludes
any constitutional theory of the tort” in the first place. Smith, 321 F.3d at 684. Love
surely meant to pursue the cause of action on some viable theory, and indeed
invokes the Court’s supplemental jurisdiction in her response brief. Pl.’s Resp. to
City Defs. Br. at 5.
Once again, the 2001 arrest is too far in the past to give rise to such a claim,
735 ILCS 5/13-202 (two-year limitations period for malicious prosecution claims),
but the 2007 prosecution does not face that burden. It must be tested on its merits.
“In order to prevail on a claim of malicious prosecution under Illinois law, the
plaintiff must establish: (1) the commencement or continuance of an original
21
criminal or civil judicial proceeding by the defendant; (2) the termination of the
proceeding in favor of the plaintiff; (3) the absence of probable cause for such
proceeding; (4) malice; and (5) damages.” Fabiano v. City of Palos Hills, 784 N.E.2d
258, 265 (Ill. App. Ct. 2002) (citing Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill.
1996)). As against Powell, Fisher, Houston, and Davis, Love has stated a plausible
claim to relief on these elements. There is no doubt that these Defendants
commenced or proceeded criminal proceedings against her and that, as Love
presents it, the charges were not pursued by the prosecution. See Swick, 662 N.E.2d
at 1242 (“[A] malicious prosecution action cannot be predicated on underlying
criminal proceedings which were terminated in a manner not indicative of the
innocence of the accused.”). As discussed above, she has pled a conceivable absence
of probable cause. Finally, the pleadings state that Defendants acted with malice
and caused damages. Accordingly, the Illinois common-law claim for malicious
prosecution against Powell, Fisher, Houston, and Davis for the 2007 auto-pound
incident may proceed.
C. Conspiracy
Love asserts four conspiracy counts: (1) conspiracy to suppress her First
Amendment rights under § 1983, (2) conspiracy to deny her Fourteenth Amendment
right to equal protection § 1983, (3) conspiracy to interfere with her civil rights in
violation of § 1985(3), and (4) failure to prevent the civil-rights conspiracy in
violation of § 1986. Third Am. Compl. at Counts 6-9. Only the specific claim related
to November 2007 is viable.
22
1. § 1983 Claims
“[T]o establish § 1983 liability through a conspiracy theory, a plaintiff must
demonstrate that: (1) a state official and a private individual(s) reached an
understanding to deprive the plaintiff of his constitutional rights, and (2) those
individual(s) were willful participant[s] in joint activity with the State or its
agents.” Lewis v. Mills, 677 F.3d 324, 333 (7th Cir. 2012) (quoting Reynolds v.
Jamison, 488 F.3d 756, 764 (7th Cir. 2007)) (internal quotation marks omitted). At
the pleadings stage, “a bare allegation of conspiracy” does not suffice, nor the “mere
suspicion that persons adverse to the plaintiff had joined a conspiracy against him
or her[.]” Cooney v. Rossiter, 583 F.3d 967, 970-71 (7th Cir. 2009) (citations omitted)
(noting that even before heightened pleading standards set by Twombly and Iqbal,
“conspiracy allegations were often held to a higher standard than other
allegations”). In particular, a plaintiff must specify “the parties, the general
purpose, and the approximate date of the conspiracy.” Loubser v. Thacker, 440 F.3d
439, 443 (7th Cir. 2006) (citations omitted).
To the extent that she alleges an overarching conspiracy by all of the named
individual Defendants together, Love clearly does not satisfy this standard. In
essence, Love asserts that a wide-ranging network of individuals working at both
OEMC and the CPD acted in concert for more than a decade to orchestrate isolated
but supposedly coordinated incidents to prevent her from speaking out about her
bad experiences with both agencies. These include the 2001 restaurant arrest
(although it was Love herself who requested CPD intervention), the 2007 arrest of
23
her brother six years later (where she was not present), followed in short order by
the auto-pound arrest, and a final incident, the late night search in 2013, four years
after she filed this suit. What she does not assert is any factual detail whatsoever
about the “form and scope of the conspiracy,” nary a hint or “indication of when an
agreement between [the] defendants was formed, what its terms were,” and what
the agreed-upon roles of the various players were. Ryan v. Mary Immaculate Queen
Ctr., 188 F.3d 857, 860 (7th Cir. 1999) (citations omitted).
Yes, conspiracies are by nature secretive and (if they are any good) difficult to
identify with precision. But here there is no allegation that the individual
Defendants, aside from the subgroups of CPD officers who interacted with Love
together, even knew each other, let alone any allegations about the circumstances of
how and when they banded together to conceive then advance such a protracted
scheme. Even at the pleadings stage a plaintiff, even pro se ones, must allege
something to give, first, the defendant “a pretty concrete idea of what he has to
defend against” and, second, the court a sense, “at the outset of the litigation, before
costly discovery is undertaken, whether the plaintiff has any tenable theory or basis
of suit.” Id. Love gives nothing, only a “bare claim of conspiracy, wholly
uninformative” to Defendants and to the Court. Loubser, 440 F.3d at 443 (7th Cir.
2006). The claims of a decade-long conspiracy by various City agents to violate her
First and Fourteenth Amendment rights are dismissed.
Once again, however, the November 2007 incident stands apart. Focused
concretely on the events of that day in the auto pound, which is within the
24
limitations period,12 the bare minimum of a § 1983 conspiracy claim can be made
out. Love’s complaint alleges that CPD officers arrived and ignored her yet
conferred with Powell, evidently colluding on the spot to bring false charges against
her, after which she was taken into custody. Thus, the parties involved, how they
are connected, the general purpose of the agreement, even the precise time and
location it came together are all stated, in contrast to Love’s speculative, decadelong, citywide conspiracy theory. See, e.g., Gardunio v. Town of Cicero, 674 F. Supp.
2d 976, 986 (N.D. Ill. 2009) (denying motion to dismiss conspiracy claim based on
agreement to falsely arrest plaintiff). It will be Love’s ultimate burden to prove that
this is what actually transpired, of course, and discovery might reveal facts that
sink the claim, but a claim based on such a narrowly-defined conspiracy (and only
this specific conspiracy) may proceed.
2. §§ 1985 and 1986 Claims
Claims under §§ 1985 and 1986 are inapplicable on the basis of Love’s
allegations. A claim under § 1985(3) requires four elements: “(1) the existence of a
conspiracy, (2) a purpose of depriving a person or class of persons of equal protection
of the laws, (3) an act in furtherance of a conspiracy, and (4) an injury to person or
property or a deprivation of a right or privilege granted to U.S. citizens.” Green v.
Benden, 281 F.3d 661 (7th Cir. 2002) (citing Hernandez v. Joliet Police Dep’t, 197
F.3d 256, 263 (7th Cir.1999)). Importantly, § 1985(3), originally known as the Ku
12Whether
a conspiracy claim is timely is based on the “timeliness analysis used to
address the accrual of each of the constitutional violations that make up the conspiracy.”
Hobley v. Burge, 2004 WL 1243929, at *8 (N.D. Ill. June 3, 2004) (citing Newsome v. James,
968 F. Supp. 1318, 1325 (N.D. Ill. 1997)). Here, as explained above, those violations of the
Fourth Amendment satisfy the two-year limitations period.
25
Klux Klan Act, does not “apply to all tortious, conspiratorial interferences with the
rights of others.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Instead, “there
must be some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.” Id.; accord Majeske v. Fraternal Order of
Police, Local Lodge No. 7, 94 F.3d 307, 311 (7th Cir. 1996). Section 1986,
meanwhile, makes liable those who, “having knowledge that any of the wrongs
conspired to be done [under § 1985] are about to be committed,” neglect or refuse to
prevent them. 42 U.S.C. § 1986.
Love does not allege, in any fashion, the existence of racial or otherwise classbased discriminatory animus on the part of the Defendants—the alleged driving
force was retaliation for her complaints, not her membership in a protected class. In
any event, the same shortcomings in terms of the bare, conclusory nature of her
other conspiracy allegations apply to her § 1985(3) claim as well. See Copeland v.
Northwestern Memorial Hospital, 964 F. Supp. 1225, 1235 (N.D. Ill. 1997) (“It is not
enough for a section 1985 plaintiff to plead mere conclusory allegations of a
conspiracy. Rather, the plaintiff must plead specific material facts that show the
existence of a conspiracy.”) (citing Winterland Concessions Co. v. Trela, 735 F.2d
257, 262 (7th Cir. 1984)). Accordingly, Love’s § 1985(3) claim and along with it her §
1986 claim, which is necessarily tied to the existence of a plausible § 1985(3)
conspiracy, must fail.
26
D. Monell Claim
To round out her § 1983 claims, Love brings suit against the City under
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Third Am.
Compl. at Count 5. A municipality can be held liable for constitutional deprivations
under Monell if the plaintiff can establish: “(1) an express policy that causes a
constitutional deprivation when enforced; (2) a widespread practice that is so
permanent and well-settled that it constitutes a custom or practice; or (3) an
allegation that the constitutional injury was caused by a person with final
policymaking authority.” Waters v. City of Chicago, 580 F.3d 575, 581 (7th Cir.
2009) (quoting Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 515 (7th
Cir. 2007)). Love fails to state any of these things.
Although Love levies a host of different instances in which she was allegedly
harmed by the City’s agents (not just the arrests and searches discussed, but other
perceived indignities), the length and diversity of this list alone is not enough to
identify, with requisite specificity, an express policy, a customary practice, or a
policymaker deliberately taking aim at Love. “To state a Monell claim against the
City,” Love “was required to plead factual content that allows the court to draw the
reasonable inference that the City maintained a policy, custom, or practice,” and
that “plausibly suggest[s] … entitlement to relief.” McCauley v. City of Chicago, 671
F.3d 611, 616 (7th Cir. 2011) (citations omitted). Instead, Love merely declares,
without anything more in support, that the City must have engaged in the requisite
“policies and practices” because CPD officers “believe they will not be punished for
27
what they do in violation of a citizen’s rights.” Pl.’s Resp. to City Defs. Br. at 5.
Conclusory allegations of municipal policy and practices, unsupported by factual
pleadings, will not suffice. See, e.g., White v. City of Chicago, 2014 WL 958714, at *3
(N.D. Ill. Mar. 12, 2014); Copeland v. Nw. Mem’l Hosp., 964 F. Supp. 1225, 1240
(N.D. Ill. 1997). The Monell claim against the City is dismissed.
E. Retaliation
The complaint raises an action for retaliation, ostensibly under 42 U.S.C.
§ 12203. Third Am. Compl. at Count 10. Love acknowledges that this statutory
provision, which falls under the Americans with Disabilities Act, was mistakenly
cited. Pl.’s Resp. to City Defs. Br. at 6. Indeed, the complaint makes no mention of
Love having a disability. It does however invoke the National Labor Relations Act
(NLRA), 29 U.S.C. § 151 et seq., and its protections for “employees who collectively
complain about terms or conditions of their employment.” Third Am. Compl. ¶ 310.
But, aside from the fact that the pleadings do not allege any kind of collective action
by OEMC employees (the only complainant was Love), the NLRA does not provide
for a private cause of action in federal district court. See Benjamin Sachs,
Employment Law as Labor Law, 29 Cardozo L. Rev. 2685, 2694-96 (2008) (NLRA
protects rights to act collectively and concentrates enforcement in administrative
mechanism, not individual); see also 520 S. Michigan Ave. Associates, Ltd. v.
Shannon, 549 F.3d 1119, 1137 (7th Cir. 2008) (finding state law creating private
cause of action for retaliation preempted by NLRA). Thus to the extent Love raises
a retaliation claim under the NLRA, it is also dismissed.
28
F. Defamation and Public Disclosure of Private Facts
The remaining claims all arise under Illinois common law, and none (with the
exception of the indemnification count) are adequately pled. To start, Love alleges
that Officers Fisher and Houston defamed her and made a public disclosure of a
private fact when they announced to her mother and to Henderson at the police
station following her November 2007 arrest that she had been previously arrested.13
Neither theory is tenable. Third Am. Compl. at Count 3. To win on a defamation
claim, a plaintiff “must show that the defendant made a false statement about her;
that the defendant caused an unprivileged publication of the statement to a third
party; and that the publication of the statement harmed her.” Knafel v. Chicago
Sun-Times, Inc., 413 F.3d 637, 639 (7th Cir. 2005) (citing Parker v. House O’Lite
Corp., 756 N.E.2d 286, 291-92 (Ill. App. Ct. 2001)). Because Love does not contest
that she had, in fact, been previously arrested, so her defamation claim is not based
on a false statement and is thus not viable.
Next, “[a] successful cause of action for the public disclosure of private facts
requires the plaintiff to prove that: (1) publicity was given to the disclosure of
private facts; (2) the facts were private and not public facts; and (3) the matter
made public would be highly offensive to a reasonable person.” Wynne v. Loyola
Univ. of Chicago, 741 N.E.2d 669, 676-77 (Ill. App. Ct. 2000) (citations omitted).
Leaving aside the question raised by the third element, whether the disclosure of a
past arrest is highly offensive to a reasonable person, Love cannot meet the first two
13Love
cites a federal statute, 28 U.S.C. § 4101, which deals with defamation in the
context of foreign judgments, so it is inapplicable.
29
requirements of this cause of action. First, the breach of privacy associated with this
tort is not triggered by communicating a fact merely “to a single person or even to a
small group of persons.” Miller v. Motorola, Inc., 560 N.E.2d 900, 903 (Ill. App. Ct.
1990) (quoting Restatement (Second) of Torts § 652D, comment a, at 384-85 (1977)).
Love only alleges that her arrest was revealed to her mother and to Henderson,
when publication to a larger audience is required for an actionable claim. Second, it
is not clear that a prior arrest can qualify as a private, rather than public, fact. See
Oden v. Cahill, 398 N.E.2d 1061, 1064 (Ill. App. Ct. 1979) (arrest records, even
when expunged, are “already within the realm of public knowledge”). Accordingly,
Love does not state a plausible claim for public disclosure of a private fact.
30
G. Wrongful Termination/Retaliatory Discharge
Love next alleges that the City and the OEMC Defendants (recall, however,
that only Fahey has been served) wrongfully terminated her in retaliation, in 2001.
Third Am. Compl. at Count 11. This cause of action is untimely. In Illinois, a
retaliatory discharge is considered a tort and, when brought against a municipality,
is subject to a one-year statute of limitations. Padilla v. Cnty. of Cook, 100 F. Supp.
2d 1145, 1147 (N.D. Ill. 2000) (citing Halleck v. County of Cook, 637 N.E.2d 1110,
1112-13 (Ill. App. Ct. 1994)). The earliest that Love raised this cause of action was
in her second amended complaint, filed in 2014, thirteen years too late. See R. 250,
Sec. Am. Compl. Love does not try to argue otherwise. See Pl.’s Resp. to City Defs.
Br. Any claim for wrongful termination/retaliatory discharge is dismissed.
H. Breach of Contract
The contractual claim against the City, Third Am. Compl. at Count 12, is
similarly time-barred. As best as the Court can tell, this claim is premised on Love’s
termination from employment with OEMC. Notwithstanding the question of
whether Love actually pleads facts showing the existence of a contract and its
breach (most employment is at-will), the discharge occurred in 2001. Under Illinois
law, breach-of-contract claims are subject to limitations periods of either ten years,
in the case of written agreements, 735 ILCS 5/13-206, or five years, in the case of
unwritten ones, 735 ILCS 5/13-205. Love first raised her contract claim in 2014,
which was too late whether the contract was written or oral. The contract claim is
dismissed.
31
I. Intentional Infliction of Emotional Distress
The cause of action for intentional infliction of emotional distress, Third Am.
Compl. at Count 13, also fails. To begin, the statute of limitations on emotionaldistress claims in Illinois is two years. Flentye v. Kathrein, 485 F. Supp. 2d 903, 923
(N.D. Ill. 2007) (citing 735 ILCS 5/13-202). The events in the early 2000s, involving
Love’s work at OEMC and the restaurant arrest, are too far in the past to be timely.
As for the other events cited in the complaint, none meet the high threshold
for successful emotional-distress claims under Illinois law, which requires a plaintiff
to allege that “(1) the defendant’s conduct was extreme and outrageous; (2) the
defendant either intended that his conduct should inflict severe emotional distress,
or knew that there was a high probability that his conduct would … and (3) the
defendant’s conduct in fact caused severe emotional distress.” Cook v. Winfrey, 141
F.3d 322, 330 (7th Cir. 1998) (quoting Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill.
1994)). The alleged conduct of the Defendants, during Grooms’ arrest (where Love
was not even present), the incident at the auto pound and Love’s later detention,
and the home-search in 2013, does not rise to the level of extreme and outrageous.
It is true that “[e]xtreme and outrageous conduct may be the result of an abuse of a
position of power,” and “police officers who abuse their authority may be liable” on
this basis. Holder v. Ivanjack, 39 F. Supp. 2d 965, 970 (N.D. Ill. 1999) (citations
omitted). Even so, it is not enough that “the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict emotional
distress”; instead, his conduct must be “so outrageous in character, and so extreme
32
in degree, as to go beyond all possible bounds of human decency.” Pub. Fin. Corp. v.
Davis, 360 N.E.2d 765, 767 (Ill. 1976); accord Oates v. Discovery Zone, 116 F.3d
1161, 1174 (7th Cir. 1997) (“Mere insults, indignities, threats, annoyances, petty
oppressions or trivialities” are insufficient.) (quoting McGrath v. Fahey, 533 N.E.2d
806, 809 (Ill. 1988)). Love does not allege behavior of the right sort. She asserts that
some of the Defendants falsely arrested her at the auto impound lot, defamed her
and improperly added charges against her later at the station, and conducted a
nighttime search based on an apparently mistaken tip. Although these are all
causes for indignity to be sure, without more, she fails to elevate these
independently actionable torts onto the separate plane of intolerable conduct
beyond all bounds of human decency. See, e.g., Cook v. Winfrey, 141 F.3d 322, 331
(7th Cir. 1998) (summarizing Illinois cases holding that allegations amounting to
mere defamation are not grounds for emotional-distress claim); Holder, 39 F. Supp.
2d at 969-70 (officers’ filing false criminal charges can underpin emotional-distress
claim where they repeatedly uttered profane and racial slurs at plaintiff);
Lorenzana v. Mette, 1995 WL 461860, at *6 (N.D. Ill. Aug. 2, 1995) (plaintiff who
was kicked, beaten, racially insulted by police while held in custody for seven hours
stated viable emotional-distress claim). As such, Love’s claims for emotionaldistress must be dismissed.
J. Indemnification
Love seeks indemnification from the City for any damages caused by its
employees named as individual Defendants. Third Am. Compl. at Count 14. Under
33
745 ILCS 10/9-102, municipalities like Chicago are liable for any tort judgments
entered against their employees acting, at the time of the injury, within their scope
of employment. See Argento v. Village of Melrose Park, 838 F.2d 1483, 1484 (7th Cir.
1988). Because the claims against Fisher, Houston, and Davis arising out of the
November 2007 arrest remain in play, dismissing this cause of action would be
premature. Cf. Wilson v. City of Chicago, 120 F.3d 681, 684-85 (7th Cir. 1997) (no
benefit to forcing plaintiff to wait until final judgment is entered before bringing
indemnification claim). To the extent that the City could be liable to indemnify
these specific Defendants, this count remains in place.
K. Respondeat Superior
Finally, Love seeks to hold United Road Towing liable under the doctrine of
respondeat superior for the allegedly unlawful actions of its employee, Powell, in
November 2007. Third Am. Compl. at Count 15. But Love cannot hold the company
liable for the surviving federal claims, as “[r]espondeat superior liability does not
apply to private corporations under § 1983.” Shields v. Illinois Dep’t of Corr., 746
F.3d 782, 789 (7th Cir. 2014) (“[A] private corporation cannot be held liable under
§ 1983 unless the constitutional violation was caused by an unconstitutional policy
or custom of the corporation itself.”) (citing Iskander v. Village of Forest Park, 690
F.2d 126, 128 (7th Cir. 1982)).14 Love can only seek to hold United Road Towing
vicariously liable, therefore, for the state-law claims still facing Powell, i.e., false
imprisonment, false arrest, and malicious prosecution.
14In
Shields, while it applied the rule, the Seventh Circuit questioned the wisdom, and
invited future review, of exempting corporations from ordinary vicarious-liability standards while
holding them to a Monell analysis of whether they enforce unconstitutional policies and customs.
34
For Illinois claims, “[u]nder the theory of respondeat superior, an employer
can be liable for the tort of an employee, but only for those torts that are committed
within the scope of employment.” Bagent v. Blessing Care Corp., 862 N.E.2d 985,
991 (Ill. 2007). On the face of the operative complaint, it could be reasonably
inferred that Powell was acting in the scope of employment during the events of
November 2007. He was United Road Towing’s agent in managing and overseeing
operations in the auto pound lot, and it was in carrying out these duties that he
interacted with and sought to dispose of Love. It matters not, however, because
Love did not sue United Road Towing in time.15
The applicable statute of limitations for the various state claims here, as
discussed, is two-years. See 735 ILCS 5/13-202. Although the underlying events
occurred in November 2007, United Road Towing was not named as a Defendant
until November 2014. See Third Am. Compl. Love argues, however, that the
limitations period should be equitably tolled. R. 370, Pl.’s Resp. to United Road
Towing Br. at 3-4. This contention is without merit. “Equitable tolling permits a
plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is
unable to obtain vital information” allowing her to bring suit. Smith v. City of
Chicago Heights, 951 F.2d 834, 839 (7th Cir. 1992) (citation and internal quotation
marks omitted); but see Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d
593, 596 (7th Cir. 2001) (mentioning uncertainty as to whether doctrine “even exists
in Illinois”). According to Love, she returned to the auto pound days after her arrest
15Love
does not make an argument that the amendments made to her complaint in
November 2014 should relate back to the date of her original pleadings in 2009. See Fed. R.
Civ. P. 15(c)(1).
35
and spoke with a supervisor, who told Love that the name of Powell’s employer was
United Road Services. Love relied on that one representation to sue the misnomercompany. That is the extent of her efforts to identify the proper defendant, which
the Court cannot say constitutes the efforts of a duly diligent person. See Athmer v.
C.E.I. Equip. Co. Inc., 121 F.3d 294, 295-96 (7th Cir. 1997) (plaintiff not entitled to
delay suit where he thought defendant corporation’s name was “C.E.I. Pacer”
instead of the actual “C.E.I. Equipment” and did not take steps to uncover real
name, despite its obscurity and refusal of his employer to reveal it).
Illinois courts have also stated that “[a] limitations period may be equitably
tolled ‘if the defendant has actively misled the plaintiff, or if the plaintiff has been
prevented from asserting his or her rights in some extraordinary way[.]’” Thede v.
Kapsas, 897 N.E.2d 345, 351 (Ill. App. Ct. 2008) (quoting Clay v. Kuhl, 727 N.E.2d
217, 223 (Ill. 2000)). Despite Love’s characterization, her reliance on the
supervisor’s statement does not fall into one of these categories. The sole allegation
is that the supervisor said “United Road Services” instead of “United Road Towing”;
that alone by an unnamed supervisor does not evince an effort to actively or
intentionally divert Love from asserting her rights.
In this vein, Love invokes 735 ILCS 5/13-215, which states that a plaintiff
may commence any action with five years, notwithstanding the ordinary limitations
period, where the allegedly liable party has concealed the cause of such action. Pl.’s
Resp. to United Road Towing Br. at 3. Love misunderstands the intended purpose of
this provision. “The concealment contemplated by section 13-215 must consist of
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affirmative acts or representations calculated to lull or induce a claimant into
delaying filing of his or her claim, or to prevent a claimant from discovering a
claim.” Orlak v. Loyola Univ. Health Sys., 885 N.E.2d 999, 1009 (Ill. 2007)
(emphasis added). The fraudulent concealment provision concerns efforts to hide the
very existence of an actionable injury. Even putting aside the possibility that the
supervisor simply misspoke or himself only knew the approximate corporate name
of the company, the misunderstanding this caused was only related to the precise
name of one defendant, not whether and when Love filed her action.
In sum, there exist no grounds to equitably toll or otherwise evade the
statute-of-limitations problem facing Love’s claim against United Road Towing. The
respondeat superior claim is therefore dismissed.
IV. Conclusion
To sum up, Defendants’ motions to dismiss are granted in large part, with the
effect of trimming the scope of this case considerably. The only remaining claims
are: (1) violation of the Fourth Amendment, asserted under § 1983 against Powell,
Fisher, Houston, and Davis for the November 2007 arrest and detention;
(2) conspiracy under § 1983 against the same four individuals for the November
2007 events; (3) false imprisonment, false arrest, and malicious prosecution claims
under Illinois common law against the same four individuals for the November 2007
events; and, (4) indemnification against the City for any potential liability for
damages by the City employees named in these claims. Discovery must be limited
37
those claims related to Love’s arrest on November 2007 at the City auto pound and
the ensuing imprisonment. All other claims and Defendants are dismissed.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: May 7, 2015
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