Christine Bloom vs. Palos Heights Police Department, et al
Filing
74
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 1/4/2012:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTINE J. BLOOM, individually,)
etc.,
)
)
Plaintiff,
)
)
v.
)
)
PALOS HEIGHTS POLICE DEPARTMENT, )
et al.,
)
)
Defendants.
)
No.
11 C 5536
MEMORANDUM OPINION AND ORDER
Christine Bloom (“Bloom”) has sued the Palos Heights Police
Department, two of its named officers (Chris Hodorowicz
(“Hodorowicz”) and Jeff Marran (“Marran”)) and various unknown
officers of the Police Department and Fire District (collectively
the “Officers”), the Palos Heights Fire Protection District
(“Fire District”), the Palos Community Hospital (“Hospital”) and
Patricia Mamone and Anthony Mamone for injuries stemming from an
incident in which the Mamones reported (falsely according to
Bloom) a suicide attempt by her daughter, S.B.
On November 1,
2011 Bloom voluntarily dismissed the Hospital.
All remaining
defendants have filed motions to dismiss under Fed. R. Civ. P.
(“Rule”) 12(b)(6), and the litigants have briefed the matter.
For the reasons stated here, all of the motions are granted-albeit on differing grounds--and both this action and the Amended
Complaint are dismissed.
Rule 12(b)(6) Standards
Under Rule 12(b)(6) a party may move for dismissal of a
complaint on the ground of “failure to state a claim upon which
relief can be granted.”
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 562–63 (2007) was the first case to repudiate, as overly
broad, the half-century-old Rule 12(b)(6) formulation announced
in Conley v. Gibson, 355 U.S. 41, 45–46 (1957) “that a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
And
post-Twombly cases have further reshaped a new Rule 12(b)(6)
standard.
First Twombly, 550 U.S. at 570 held that to survive a Rule
12(b)(6) motion a complaint must provide “only enough facts to
state a claim to relief that is plausible on its face.”
Or put
otherwise, “[f]actual allegations must be enough to raise a right
of relief above the speculative level” (id. at 555).
Then
Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam) and Ashcroft
v. Iqbal, 556 U.S. 662 (2009) provided further Supreme Court
enlightenment on the issue.
Before Iqbal our own Court of Appeals, in Airborne Beepers &
Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007) described Twombly and Erickson as establishing “only that
at some point the factual detail in a complaint may be so sketchy
2
that the complaint does not provide the type of notice of the
claim to which the defendant is entitled under Rule 8.”
And more
recently Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) has
confirmed that the Airborne Beepers reading of pleading law
post-Twombly and post-Erickson remains accurate after Iqbal.
Brooks, id. describes Iqbal as “admonishing those plaintiffs who
merely parrot the statutory language of the claims that they are
pleading (something that anyone can do, regardless of what may be
prompting the lawsuit), rather than providing some specific facts
to ground those legal claims, that they must do more.”
Familiar Rule 12(b)(6) principles--still operative under the
new pleading regime--require this Court to accept as true all of
Bloom’s well-pleaded factual allegations, with all reasonable
inferences drawn in her favor (Christensen v. County of Boone,
483 F.3d 454, 457 (7th Cir. 2007)(per curiam)).
What follows in
the next section adheres to those principles.
Facts
S.B. is Bloom’s 15 year-old daughter (AC ¶2)1.
Mamones’ son (id. ¶¶8-9).
N.M. is the
N.M. and S.B. dated each other in
early 2011, but the Mamones did not approve of the relationship
and tried to keep their son from seeing S.B. (id. ¶15).
1
All citations to Bloom’s Amended Complaint will take the
form “AC ¶--.” Bloom filed multiple memoranda in response to
defendants’ motions to dismiss. Citations to each of her
memoranda will appear as “B. Mem. --” preceded by the 2011 filing
date of the memorandum.
3
On May 6, 2011 N.M. was at the Bloom house (AC ¶13).
Patricia Mamone drove to the house to pick up N.M. and called him
on his cell phone to let him know that she had arrived (id. ¶16).
Patricia and N.M. began to argue on the phone, and N.M. refused
to leave the house (id.).
Anthony Mamone then called his son,
precipitating another argument (id. ¶17).
S.B. to become upset (id. ¶18).
Those arguments caused
She ran into the kitchen, and
N.M.--now back on the phone with Patricia--told Patricia that
S.B. had made comments about cutting herself (id. ¶¶18-20).
Paradoxically, N.M. also told Patricia that she should not call
911 (id. ¶20).
S.B. did not actually cut herself (id. ¶22).
According to AC ¶21, N.M. and S.B. then sat down on the couch,
and though S.B. “was still upset and emotional” she “was not in
any physical danger to herself of anyone else.”
No AC
allegations say whether N.M. or the Mamones or anyone else knew
that.
Patricia called 911 (AC ¶26).
Bloom says that Patricia told
the dispatcher that the situation was not serious (id.).
Whatever else Patricia told the dispatcher, it prompted the
dispatcher to call for both a psychological evaluation from the
Fire District and for a police unit to come to the Bloom house
(id. ¶27-28).
Officers arrived at the house and spoke to
Patricia (id. ¶29-30), who told them that S.B. was contemplating
suicide and had a knife to her throat (id. ¶30).
4
But the Mamones
had a personal connection to some Police Department personnel
(the AC does not say whether Hodorowicz or Marran were among
them), and the AC goes on to state that the Mamones spoke to the
latter two Officers upon their arrival at the Bloom home (id.
¶¶124-25).
Both the Mamones and the Officers assertedly agreed
on a plan to take her to the Hospital whether or not it was
necessary (id. ¶127).
Hodorowicz, Marran and possibly other Officers entered the
Bloom house without knocking and without a warrant (AD ¶32).
They found S.B. and N.M. sitting on a couch in the living room
(id. ¶33).
No knife was in the living room (id. ¶33).
S.B. told
the officers that she was not trying to commit suicide (id. ¶34),
but the Officers removed S.B. from her home against her will,
strapped her to a gurney and took her to the Hospital (id. ¶¶3540).
At the Hospital the Officers did not make an application
for admission of S.B. to a mental health facility for inpatient
treatment under 405 ILCS 3/503 (id. ¶¶42-43).
Someone attempted to reach Bloom on her cell phone, but
Bloom’s phone lost reception and the call was cut off (AC ¶¶4546).
Bloom eventually learned that S.B. was at the Hospital and
met her there at 6:40 p.m. (id. ¶¶47-49).
S.B. then underwent a
psychiatric evaluation (id. ¶50), and she was discharged around
11:30 p.m. (id. ¶51).
5
Bloom’s Legal Theories2
Bloom lists fully 14 legal theories that she says entitle
her to relief, either on her own behalf or on behalf of S.B.
Those legal theories overlap:
For example, Bloom says that 42
U.S.C. §19833 allows her to recover against the Officers, the
Police Department, the Fire District and the Mamones.
But the
Section 1983 analysis differs for each set of defendants, so this
opinion is organized in terms of the theories’ applicability to
the different defendants:
the Officers, the Police Department,
the Fire District and the Mamones.
Theories Against Individual Police Officers and Does
Bloom asserts that a host of statutes and common law
doctrines entitle her to relief against Hodorowicz, Marran and
the Doe defendants:
2
This is the accurate way to speak of Bloom’s legal
onslaught, rather than the common but erroneous characterization
of such theories as “claims” (see NAACP v. Am. Family Mut. Ins.
Co., 978 F.2d 287, 291-93 (7th Cir. 1992)). Even so, this
opinion later sometimes employs the “claim” terminology (with
apologies, of course) for two reasons:
1. Many of Bloom’s contentions are advanced under state
law, which employs the “cause of action” concept because a
legal theory is part of that concept. Such contentions
sometimes constitute separate “claims” in the purest sense
of the word.
2. That being so, maintaining a strict differentiation in
this opinion would be both cumbersome and awkward.
3
Further references to Title 42 statutes will take the
form “Section --,” omitting reference to Title 42 itself.
6
•
•
•
•
•
•
•
•
Section 1983 for violation of her Fourteenth
Amendment right to substantive due process
Section 1983 for violation of her Fourteenth
Amendment right to equal protection
Section 1983 for an unlawful entry under the
Fourth Amendment.
Intentional infliction of emotional distress
“Conspiracy”
Section 1985(3)
Excessive force
Negligence
On behalf of S.B., Bloom asserts all of those theories except for
the substantive due process theory, as well as adding:
•
•
•
•
•
•
Section 1983 for violation of S.B.’s Fourteenth
Amendment right to procedural due process
Section 1983 for an unlawful seizure under the
Fourth Amendment
Section 1983 for false arrest
False imprisonment
Battery
Assault
Let’s start with the due process claims.
Bloom contends
that the Officers violated her right to familial relations, an
assertion that comes under the rubric of substantive due process.
Protection of familial relations is indeed a fundamental right,
but a brief separation of a parent from her child does not
deprive the parent of her right to raise children.
That’s the
conclusion reached by Tenenbaum v. Williams, 193 F.3d 581, 600-01
(2d Cir. 1999) as to a seizure of similar duration.
There a
caseworker removed a kindergartner from class and brought her to
a hospital because the caseworker suspected the child had been
abused by her father (id. at 590).
Hospital workers examined the
child, found no sign of abuse and returned the child to her
7
parents that same day.
When the parents sued claiming that the
seizure of the child denied them their fundamental right to
familial relations, Tenenbaum, 193 F.3d at 600-01 held that such
right is not abrogated by temporarily removing a child from a
parent’s care (id. at 601):
The temporary separation of [the child] from
her parents did not result in the Tenenbaums’
wholesale relinquishment of their right to
raise [the child].
In our own Circuit, Hanson v. Dane County, 608 F.3d 335,
338-39 (7th Cir. 2010) has reached a similar conclusion, albeit
on different facts.
Police officers were called to a family’s
home and suspected a case of domestic violence.
children to a separate room for questioning.
They took the
Hanson, id. at 338-
39 held that the right to familial relations is abrogated by
breaking up a family, not by a brief separation (id. at 338
(citation omitted)):
Although “familial relations” are fundamental, the
police did not break up the Hanson family; they just
asked some questions of the daughters to learn whether
a crime had occurred.
Here Bloom alleges that she arrived at the Hospital less
than an hour after her daughter (AC ¶¶41, 49), and she points to
no case that holds a separation of that duration intrudes on a
parent’s fundamental right.
Hence the AC fails to state a claim
for an interference with Bloom’s fundamental right to familial
relations.
8
On S.B.’s behalf Bloom seeks relief in procedural due
process terms, but that fares no better.
Bloom says that upon
arriving at the Hospital the Officers were required to complete
an application to admit S.B. under 405 ILCS 5/3-503 and 5/3-504.4
Bloom misreads the statutes.
Here is Section 504(b), which Bloom
says the Officers violated by failing to complete an application:
A peace officer may take a minor into custody and
transport the minor to a mental health facility when,
as a result of his personal observation, the peace
officer has reasonable grounds to believe that the
minor is eligible for admission under Section 3-503 and
is in a condition that immediate hospitalization is
necessary in order to protect the minor or others from
physical harm. Upon arrival at the facility, the peace
officer shall complete an application under Section
3-503 and shall further include a detailed statement of
the reason for the assertion that immediate
hospitalization is necessary, including a description
of any acts or significant threats supporting the
assertion, the time and place of the occurrence of
those acts or threats, and the names, addresses and
telephone numbers of other witnesses of those acts or
threats.
But those procedures apply only when “immediate
hospitalization is necessary.”
Section 112 defines
“hospitalization” as “the treatment of a person by a mental
health facility as an inpatient,” and S.B. was not admitted to
the Hospital for treatment as an inpatient.
As People v. R.C.,
175 Ill. App. 3d 163, 167, 529 N.E.2d 756, 759 (1st Dist. 1988)
4
Further reference to those and related provisions will
take the form “Section --,” omitting the prefatory 405 ILCS 5/3.
That usage should create no confusion with citations referred to
in n.3, given the wide difference in numbering between the
Title 42 provisions and the ILCS provisions.
9
states:
Absent a specific legislative definition of when a
patient is “admitted,” we believe that a reasonable
interpretation of the statutory language “prior to
admission” allows for a potential patient to be taken
to a hospital and within a reasonable amount of time
thereafter be examined and processed to determine
whether that person should be formally admitted.
Thus the statute, as interpreted by Illinois courts,
differentiates between preliminary examinations and outright
admissions for treatment.
never formally admitted.
S.B. underwent the former but was
And that being so, the statute did not
require the Officers to complete any paperwork.
What has been said to this point has assumed arguendo that
violating the statute would deprive S.B. of due process.
But
violations of state statutes, even if they contain procedural
rules, do not necessarily violate the Due Process Clause. As
Goros v. County of Cook, 489 F.3d 857, 859 (7th Cir. 2007) has
put it:
State law defines property; federal law defines the
process that is “due.”
Due process usually calls for notice and a hearing (id. at
860), but Bloom does not argue that S.B. was entitled to a
hearing before being transported to the Hospital and examined.
Instead, citing Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir.
1995), Bloom argues that the state law created a liberty interest
that the Officers took from S.B. by not following the procedure
mandated by that law.
Kraushaar itself has reiterated the
10
rejection of that sort of bootstrapping (id. at 1049)(citations
to source omitted, brackets and ellipses in original):
[S]tate procedural protections cannot define what
process is due. The Fourteenth Amendment's limitation
on state action would be illusory indeed if state
practices were synonymous with due process....[T]he
task of defining the procedural protections which
attach to [a protectable liberty interest] is wholly a
matter of federal constitutional law and is accomplished through the balancing analysis of Matthews v.
Eldridge, 424 U.S. 319 (1976).
Even if the Officers had violated the statute (which the evidence
does not support), Bloom would not have a viable due-processbased remedy.
Bloom also argues that she can invoke Section 1985(3)
because the Officers conspired with the Mamones to deprive her
and S.B. of equal protection of the law.
Section 1985(3)
prohibits conspiracies to deprive a person of her legal rights,
but only when the conspirators have “a racial or otherwise classbased invidious discriminatory animus” (Nowicki v. Ullsvik, 69
F.3d 1320, 1325 (7th Cir. 1995))--and here the AC gives no
indication that the Officers’ and Mamones’ actions were based on
Bloom’s or S.B.’s membership in any class.
To be sure, in her October 25 memorandum Bloom says that the
Mamones and Officers targeted her and S.B. because they are
female.
But Bloom’s AC contains no such allegation.
Instead the
AC ascribes the Mamones’ motivation to the fact that they did not
like their son’s dating S.B.:
11
15. Prior to May 6, 2011, S.B. and N.M. had been
dating each other for approximately 5 months and had
seen each other on a fairly regular basis. The Mamones
do not approve of their son being seriously involved in
a relationship with S.B. and had repeatedly attempted
to keep them apart from each other and/or maintained
tight control over the circumstances in which N.M. was
permitted to see S.B. outside of school hours.
*
*
*
25. Upon information and belief, the Mamones
decided to call 911 in an effort to harass, embarrass
and humiliate S.B. and/or to continue their attempts to
keep S.B. and N.M. apart from each other.
As Nowicki indicates, even though the Supreme Court has
never clarified precisely what kinds of discrimination other than
race-based discrimination can implicate Section 1985 (see United
Bhd. of Carpenters v. Scott, 463 U.S. 825, 835-38 (1983)), the
statute does not cover discrimination based on ordinary
disagreements between citizens (cf. Griffin v. Breckenridge, 403
U.S. 88, 102 (1971), holding that Section 1985 is not “a general
federal tort law”).
Because Bloom’s pleading does not allege any
class-based discrimination,5 she has failed in her attempt to
call upon Section 1985(3).
Bloom’s Equal Protection Clause effort, which advances a
5
Something must be said about Bloom’s belated effort to
inject alleged sex discrimination into the case. When any lawyer
(or any client) simply changes the facts because the law demands
something other than what the original version of the facts will
provide, that dubious tactic brings Rule 11(b) into play--and it
is difficult to ascribe any other motive for the new assertion in
this case. Bloom’s counsel is ordered to submit an appropriate
affidavit from Bloom on or before January 16 identifying any good
faith predicate for the change in theories.
12
“class-of-one” theory, also fails.
Srail v. Vill. of Lisle, 588
F.3d 940, 944 (7th Cir. 2009) explains that to make out a classof-one claim, a plaintiff must “establish that there exist
comparators with whom [he is] similarly situated.”
Bloom’s AC
contains no allegation that the Officers treat similarly situated
individuals differently.
Bloom says in one of her memoranda of
law that she could allege that one individual who posed a suicide
risk was not taken to the hospital.
Even if the AC had contained
such an allegation (as it has not--in that respect, see n.5),
that would not do the job.
It is obvious that every such
situation has its own dynamics--that one size does not fit all.
Here is what Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 603
(2008) says on that score:
There are some forms of state action, however, which by
their nature involve discretionary decisionmaking based
on a vast array of subjective, individualized assessments. In such cases the rule that people should be
“treated alike, under like circumstances and
conditions” is not violated when one person is treated
differently from others, because treating like
individuals differently is an accepted consequence of
the discretion granted. In such situations, allowing a
challenge based on the arbitrary singling out of a
particular person would undermine the very discretion
that such state officials are entrusted to exercise.
To turn next to Bloom’s Fourth-Amendment-based contentions,
they pose a common issue:
whether the police were legally
justified in entering Bloom’s home and seizing S.B.
Brigham City
v. Stuart, 547 U.S. 398, 403 (2006) says that “law enforcement
officers may enter a home without a warrant to render emergency
13
assistance to an injured occupant or to protect an occupant from
imminent injury.”
Hence legal justification exists if the
Officers had a reasonable belief that S.B. was going to harm
herself (Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 927
(7th Cir. 2011)).
they did.
Most of the allegations in the AC suggest that
Patricia called the police and told them that S.B. was
contemplating suicide and had a knife to her throat (AC ¶30).
That’s surely enough for a reasonable officer to believe that
S.B. was in danger of harming herself.
Bloom counters that Patricia’s information was false--that
S.B. never held a knife to her throat.
And the AC alleges that
when the police entered the home, they saw no knife and no signs
of disturbance (AC ¶33), and S.B. told them that she had no
intention of committing suicide (id. ¶34)6
But probable cause
and exigent circumstances inquiries are based on what the
officers believed at the scene and “do[ ] not demand probability,
or even a showing that the officer’s belief is more likely true
than false” (Siliven, 635 F.3d at 927 (internal quotation marks
6
Though she did not allege this in the AC, Bloom has just
asserted--in her fourth memorandum of law--that S.B.’s adult
siblings were present when the Officers arrived and told the
officers “that no exigent circumstances existed” (Dec. 22 B. Mem.
9). Once again such a tactic is inexcusable--as n.5 states, it
raises a serious question as to whether what is going on is an
effort to reshape the facts to fit the way that the legal issues
seem to be developing. But that aside, the quoted summary is too
amorphous to be useful in determining what the Officers knew at
the scene. Bloom does not say how much the adult siblings
witnessed and to what extent they contradicted Patricia’s story.
14
omitted)).
For legal purposes the ultimate truth of Bloom’s
statements is irrelevant--the Officers were justified in bringing
S.B. to the Hospital if a prudent officer, confronted with
Patricia’s statements and the other facts and circumstances at
the scene, could have believed that S.B. constituted an immediate
danger to herself (id.).
Bloom wants a rule that requires the Officers to have
trusted S.B. over Patricia.
In fact the Officers did not
completely put their faith in either, deferring instead to mental
health professionals at the Hospital (AC ¶35).
That was a
reasonable judgment in light of what they understood to be S.B.’s
threat to cut herself (AC ¶20).
On that score Hanson, 608 F.3d
at 338 holds that “officers who have probable cause need not
cancel an investigation on request.”
Here the Officers had reason to believe that S.B. had
threatened to harm herself, and they were not required to stop
investigating when S.B. told them that nothing was amiss.
They
acted reasonably under the circumstances by turning to
professionals, rather than forming their own lay opinions about
S.B.’s mental health.7
Consider for a moment the possible
consequences of the Officers acting solely on their own lay
7
Threats of suicide must be taken seriously, and the
danger is not necessarily dissipated by the apparent subsidence
of the threat--for example, such persons can and do paper over
the problem by feigning calmness, only to return to that
dangerous mindset when another stressor arises.
15
opinions and leaving the scene.
Had S.B. actually been suicidal,
such conduct by the Officers would have created a risk to her
life.
Briefly seizing her and bringing her in for an expert
evaluation was reasonable in light of that potential risk (cf.
Siliven, 635 F.3d at 928).
It is true that Bloom also says that the police conspired
with Mamones to seize S.B. without justification.
To that end
she cobbles together a set of allegations, beginning with AC
¶124’s vague and generalized allegation:
Upon information and belief, Defendants A. Mamone
and/or P. Mamone had a personal connection or
relationship and/or influence over employees of the
PHPD [the Police Department].
Even though any reference to Hodorowicz and Marran is
conspicuously absent from that allegation, just as there is no
basis for the notion that the unidentified police personnel
somehow communicated a desire to assist the Mamones to those two
officers before they were called to the Bloom residence by the
police dispatcher, Bloom continues with the assertion that upon
arriving there the Officers conspired with Mamones to remove S.B.
from the house even though there was no “reasonable basis or
probable cause for doing so” (AC ¶127).
It is an understatement to label that combination of
allegations as wildly fanciful.
During the Conley v. Gibson era
of Rule 12(b)(6) jurisprudence, this Court would on occasion
quote from Denton v. Hernandez, 504 U.S. 25, 33 (1992):
16
Some improbable allegations might properly be disposed
of on summary judgment, but to dismiss them as
frivolous without any factual development is to
disregard the age-old insight that many allegations
might be “strange, but true; for truth is always
strange, Stranger than fiction.” Lord Byron, Don Juan,
canto XIV, stanza 101 (T. Steffan, E. Steffa & W. Pratt
eds. 1977).
But as to such a tangled web of allegations as Bloom has served
up, there is good reason to believe that the overly generous
Denton statement has been overtaken by the new Twombly-Iqbal
requirement that a pleading “state a claim to relief that is
plausible on its face” (Twombly, 550 U.S. at 570; Iqbal, 129 S.
Ct. at 1949).
It is worth noting that the allegations that the Supreme
Court found wanting in Twombly had, in conclusory fashion,
asserted a conspiracy without adequate factual support (Twombly,
550 U.S. at 567), while Bloom asserts in like conclusory fashion
a conspiracy allegedly hatched in a brief discussion between the
Officers and Mamones (AC ¶¶124, 127).
In sum, even if the Denton
approach would require this Court to accept Bloom’s strange
allegations, it is questionable whether that would suffice to
make Bloom’s conspiracy claim plausible after Twombly and Iqbal.
But that possible conflict need not be resolved here, for
Bloom’s contention fails for a different reason.
Bloom alleges
that the Officers and Mamones “agreed on a plan whereby
Defendants Hodorowicz, Marran and/or John/Jane Does would remove
S.B. from the residence and transport her to PCH, regardless of
17
whether any reasonable basis or probable cause existed for doing
so” (AC ¶127).
Bloom thus argues that the Officers had a bad
motive for seizing S.B. and transporting her to the Hospital.
But the definitive Fourth Amendment reading in Whren v. United
States, 517 U.S. 806, 812-13 (1996) is that the constitutional
reasonableness of a search or seizure does not “depend[ ] on the
actual motivations of the individual officers involved” (id. at
213).
What controls instead is an objective rather than
subjective standard:
whether a reasonable officer could make the
seizure under the same circumstances.
As explained earlier, a rational and objective officer
brought to the scene by a report that someone had threatened
self-mutilation or suicide and finding the situation apparently
defused would have opted, just as Hodorowicz and Marran did, to
bring S.B. to mental health experts for further evaluation,
rather than run the earlier-described risk.
Even if this
Court--despite the Twombly-Iqbal caveat--were to accept Bloom’s
bizarre conspiracy allegations, then, she fails to state a claim.
That leaves only the various state law theories, whose
resolution depends heavily on issues of state law.
Because the
federally-grounded theories against the individual Officers have
been dismissed, this Court will exercise its discretion to
decline supplemental jurisdiction over the state law claims under
28 U.S.C. §1367(c)(3).
18
Theories Against Municipal Defendants
Bloom contends that she has Section 1983 theories of
recovery against the Police Department and Fire District, the
same state-law-based theories listed above against the individual
defendants, plus state law theories on a respondeat superior
basis.
Those categories will be dealt with seriatim.
To begin with, Bloom’s Section 1983 contentions are dead on
arrival.
As for the Police Department, a non-entity in the legal
sense, it is not a “person” capable of being sued under Section
1983, so it is out of the case.
But because the Fire District is
a municipal unit (70 ILCS 705/1), it requires more discussion.
Although the seminal opinion in Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978) held that municipal units are
“persons” capable of being sued under Section 1983, the opinion
went on to say (id.) that municipalities are liable only for
official policies and customs that cause constitutional torts;
see also Vodak v. City of Chicago, 639 F.3d 738, 747 (7th Cir.
2011)).
Here are the allegations of AC ¶¶70 and 71:
71. Defendants PHPD [Police Department] and PHFPD
[Fire District] are government entities that had a
custom or policy that resulted in the deprivation of
Plaintiffs’ constitutional rights and the rights
afforded by the Emergency Admission of Minor statute.
72. Defendants PHPD and PHFPD knew or should have
know that their custom or policy of failing to train
its [sic] employees and/or of failing to enforce their
established rules regarding compliance with the
Emergency Admission of Minor Statute would result in a
deprivation of Plaintiffs’ constitutional rights.
19
Little analysis is required to demonstrate that those paragraphs
are not enough to plead a custom or policy adequately.
As for AC ¶70, it is a “conclusory legal statement” that
does “nothing to distinguish the particular case that is before
the court from every other hypothetically possible” Monell-based
theory of recovery (Swanson v. Citibank, N.A., 614 F.3d 400, 40405 (7th Cir. 2010)).
It thus fails to provide the Fire District
the notice required by Rule 8 (Brooks, 578 F.3d at 581).
Nor does AC ¶71 fare better.
Twombly and Iqbal require a
plaintiff to “give enough details about the subject matter of the
case to present a story that holds together” (Swanson, 614 F.3d
at 404).
Bloom failed to do that.
She has mentioned only one
potential custom or policy--an asserted failure to train
employees or failure to enforce compliance with an Illinois
statute--but she makes no attempt to explain how those asserted
failures could be a proximate cause of the claimed commission of
constitutional violations.
Montano v. City of Chicago, 535 F.3d 558, 570 (7th Cir.
2008) states that a plaintiff must establish that the
municipality’s “deliberate conduct”--its custom or policy--was
the “moving force” behind the constitutional deprivation.
But
Bloom’s pleading contains no allegation that connects the
asserted failure to train the Officers on the Illinois statute
with the constitutional violations for which she contends.
20
That leaves only the state law theories against the Fire
District:
intentional infliction of emotional distress,
negligence and excessive force. Those contentions, which can be
advanced against the Fire Department only in respondeat superior
terms, lack any federal underpinning at this point.
They are
dismissed without prejudice to their possible assertion in a
state court of competent jurisdiction.8
Theories Against Mamones
Finally, Bloom brings state law claims of intentional
infliction of emotional distress, conspiracy and negligence, plus
a Section 1985(3) theory, against the Mamones.
For the reasons
previously given, the Section 1985(3) theory is dismissed.
That
then leaves the state law contentions, which are dismissed
without prejudice in the same manner as those same contentions
vis-a-vis the Fire District.
Conclusion
To summarize the disposition of Bloom’s many theories of
recovery:
1.
Bloom’s theories against the Officers are
dismissed, with the dismissal of the state law torts being
without prejudice.
2.
All of the Section 1985(3) theories, both against
8
No view is expressed here as to the substantive merit (or
lack of merit) in those contentions.
21
the Mamones and against the Officers, are dismissed.
3.
All of Bloom’s theories against the Police
Department are dismissed, because it is not a “person”
capable of being sued.
4.
All of her theories against the Fire District are
dismissed, with the dismissal of the respondeat-superiorbased theories that derive from state law torts being
without prejudice.
5.
All of the state law theories against the Mamones
are dismissed, also without prejudice.
All of that, then, dispatches the AC in its entirety.
Most often a dismissal at the pleading stage does not close
out a case, on the premise that a repleading might cure the flaws
that have been identified.
Here, however, Bloom has
unquestionably given it her best shot--although doing so with
fatally wet powder has prevented that attempted shot from
reaching any legal target.
That being so, no do-over is
appropriate, and this action is dismissed with prejudice (save
for the limited without-prejudice dismissals described earlier).
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
January 4, 2012
22
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