Munive v. Town of Cicero et al
Filing
90
MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 1/14/2014. Mailed notice(tlp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
G. CESAR MUNIVE, on his own
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behalf and as Administrator
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of the Estate of Cesar Munive,)
Deceased,
)
)
Plaintiff,
)
)
vs.
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TOWN OF CICERO, et al.,
)
)
Defendants.
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No. 12 C 5481
Magistrate Judge
Arlander Keys
MEMORANDUM OPINION AND ORDER
According to the complaint [dkt. # 1] filed in this case,
on July 5, 2012, Cesar Munive (“the decedent”) was riding his
bike near the corner of 13th Street and 57th Avenue in Cicero.
Complaint, ¶3.
At that time, a Cicero Police Officer, believed
to be Officer Schullo, who is a named defendant in this action,
shot the decedent in the back; the decedent later died from the
gunshot wound. Id., ¶4.
Six days after the shooting, on July
11, 2012, G. Cesar Munive (“Mr. Munive”), the decedent’s father,
filed suit, on behalf of himself and as Administrator of the
Estate of Cesar Munive, deceased, alleging that the shooting was
unjustified.
Mr. Munive also alleges that the Town of Cicero
and its police officers took affirmative steps to cover up the
unjustified shooting, going so far as to plant a weapon at the
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scene.
Id., ¶¶10-11.
The parties consented to proceed before a
United States Magistrate Judge and the case was reassigned to
this Court on September 13, 2012. [Dkt. #15-16].
On June 17, 2013, Mr. Munive filed an amended complaint to
add Officer Garrity as a defendant in this action, asserting
that Officer Garrity shot the decedent in the back.
4].
[Dkt. #41,¶
In the first amended complaint, Mr. Munive asserts multiple
federal and state claims on his own behalf and as the
Administrator of the Estate of Cesar Munive, deceased.
The
counts include §1983 claims for excessive force, failure to
intervene, denial of medical care, and conspiracy.
He also
asserts state law claims for wrongful death and survival,
asserting intentional and reckless battery.
On August 15, 2013,
Defendant Officer Donald Garrity filed a motion to dismiss [dkt.
#60] pursuant to Federal Rule of Civil Procedure 12(b)(6).
In his motion to dismiss, Officer Garrity argues that Mr.
Munive has no standing to bring or maintain this action or
assert the claims he did.
He argues that Mr. Munive, the parent
of the adult decedent, has no claims under federal or state law,
and therefore, his individual claims must be dismissed.
At the
time that Officer Garrity filed his motion to dismiss, Mr.
Munive was not the administrator of the decedent’s estate, as
set forth in the original complaint and first amended complaint.
Officer Garrity argued that Mr. Munive’s lack of this position
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as administrator meant that he had no viable claims in a
representative capacity since “only a duly appointed legal
representative can bring and maintain survival and wrongful
death actions.” Mot. to Dismiss, p. 1-2.
On October 16, 2013,
after Officer Garrity filed his motion to dismiss, an order was
entered in the Circuit Court of Cook County, Probate Division,
appointing Mr. Munive as an administrator of the estate of the
decedent. Resp. at Ex. A.
In his response to the motion to dismiss, Mr. Munive points
out his recent appointment as administrator. Resp. at p. 4.
Mr.
Munive suggests that the Court deny the motion to dismiss and
enter an order substituting the plaintiff in this action from
the present language captioned as “G. Cesar Munive, on his own
behalf and as Administrator of The Estate of Cesar Munive,
Deceased,” to “G. Cesar Munive as Administrator of The Estate of
Cesar Munive, Deceased,” striking “on his own behalf and.”
Id.
Alternatively, Mr. Munive suggests that he can amend the
complaint to substitute the plaintiff.
Mr. Munive argues that
his suggestions are viable legal remedies, as Federal Rule of
Civil Procedure 17(a)(3) allows an administrator to bring suit
without having been first appointed by the probate court.
Mr.
Munive argues that it is well settled that the appropriate
remedy is to continue the case to allow plaintiff a reasonable
time to cure, instead of dismissing the case. Resp. at p. 3,
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citing Moore’s Federal Practice 3d § 17.12[1][a], Burris v.
Cullinan, 09-3116, 2009 WL 3574420 at *5 (C.D. Ill. Oct. 23,
2009); Abiola v. Abubakar, 2003 02 CV 6093, 2003WL 22012220 at
*3 (N.D. Ill. Aug. 25, 2003); see also Jefferson v. Davis, 88 CV
1872, 1990 WL 60689 at *1-2 (N.D. Ill. April 23, 1990).
In his reply brief, Officer Garrity acknowledges, “The
probate court proceeding may breathe life into a portion of the
lawsuit he brought” as Mr. Munive “now has capacity to bring and
maintain a portion of his action.” Reply at pp. 7, 9.
Therefore, Officer Garrity accepts that Mr. Munive may have
viable claims in this action with his role as Administrator of
the Estate of Cesar Munive, deceased.
However, Officer Garrity
argues that, as the first amended complaint [dkt. #41] is
written now, changing the named plaintiff in the caption does
not resolve the systemic problems with the tenor and scope of
the allegations of the first amended complaint, as he argues
“unrecoverable non-existent personal constitutional claims are
mixed in and intermingled with potentially viable survival
claims.” Id. at p. 2.
Therefore, Officer Garrity argues that
Mr. Munive should re-plead for clarity, since changing the
caption “does not effectively dismiss the non-existent
constitutional claims from this case leaving the court or
defendants with a plain and concise pleading to work with.” Id.
at pp. 2-3.
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As to Officer Garrity’s request that Mr. Munive be ordered
to file an amended complaint, the Court agrees.
The first
amended complaint uses the word “Plaintiff” throughout in
asserting how the Plaintiff died, what the Plaintiff suffered,
who Plaintiff’s decedent is, and what the Plaintiff is entitled
to recover, confusing the definition of plaintiff and the
personal and survival claims.
at ¶¶3, 20, 21(b), 63.
See e.g. First Amended Complaint
Since the order of the probate court has
been entered, and Mr. Munive seeks to change the definition of
Plaintiff in this action, eliminating his personal claims, the
use of the word “Plaintiff” in the first amended complaint is
confusing and the Court sees how Officer Garrity would have a
difficult time answering the complaint or asserting affirmative
defenses in response.
Therefore, it is ordered that the caption
in this case be amended, striking “on his own behalf and.”
In
addition, Mr. Munive is ordered to file a second amended
complaint, applying the new definition of plaintiff when used in
the second amended complaint, and attaching the Cook County
probate order as an exhibit to the second amended complaint.
Then, Officer Garrity will be able to answer or plead
affirmative defenses, knowing the definition of plaintiff that
Mr. Munive is currently using.
Officer Garrity also argues that Mr. Munive’s “recent
appointment by a state probate judge to be administrator of his
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deceased son’s estate does not vest him with a claim upon which
relief can be granted” under §1983. Reply at p. 1.
Therefore,
Officer Garrity requests that the court dismiss the first
amended complaint “in its entirety since every count under §1983
for wrongful death and survival intermingle the same individual
and personal constitutionally based claims for which there can
be no recovery.” Reply at p. 2.
Based on Mr. Munive’s Sur-reply
and Officer Garrity’s response to the Sur-Reply, it does not
seem that the parties disagree on the applicable case law
regarding § 1983 causes of action.
However, while using
different and confusing definitions of “Plaintiff” in the briefs
and based on how the word “Plaintiff” was used in the first
amended complaint, the parties seem to be talking past each
other on this issue, instead of getting to the heart of the
matter.
Therefore, the Court denies Officer Garrity’s motion to
dismiss at this time, and allows Mr. Munive to file his second
amended complaint, which will hopefully eliminate this
confusion.
Then, Officer Garrity can answer or otherwise plead,
including raising this issue again, depending on his position
regarding the second amended complaint.
CONCLUSION
For the reasons set forth above, Officer Garrity’s motion
to dismiss is denied.
However, Mr. Munive is to file a second
amended complaint by February 4, 2014. The second amended
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complaint should amend the caption, striking “on his own behalf
and” as part of the definition of plaintiff, apply the new
definition of plaintiff when the word “plaintiff” is used
throughout the second amended complaint, and include the
appointment order from the Circuit Court of Cook County as an
exhibit.
The Clerk’s Office is ordered to amend the caption of
this case, striking “on his own behalf and” from the definition
of the plaintiff.
DATE: January 14, 2014
ENTER:
________________________
ARLANDER KEYS
United States Magistrate Judge
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