Martin v. City Of Chicago et al
MEMORANDUM Opinion and Order: Signed by the Honorable John W. Darrah on 2/28/2017. Mailed notice. (sxn, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
NOBLE RICHARD MARTIN,
CITY OF CHICAGO et al.,
Case No. 12-cv-9207
Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff, Noble Richard Martin, brought suit, pro se, in this court against several
individuals, alleging various claims stemming from his arrest and subsequent trial. Defendants
filed Motions to Dismiss, and Plaintiff filed no responses. Plaintiff’s First Amended Complaint
was dismissed on September 30, 2014. Plaintiff then filed an Application to Proceed In Forma
Pauperis and a Motion for Appointment of Counsel, which were granted on December 2, 2014.
Plaintiff, through his attorney, filed a Third Amended Complaint. Defendants’ Motions to
Dismiss the Third Amended Complaint were granted with prejudice, except as to two counts
which were dismissed without prejudice. After that ruling, Plaintiff’s appointed attorney moved
to withdraw, which was granted. Plaintiff filed a Motion for Reconsideration of the dismissal of
his Third Amended Complaint. Plaintiff’s Motion for Reconsideration was denied. Plaintiff
then filed a Fourth Amended Complaint pro se. Another attorney was appointed but did not file
an amended complaint. Defendants filed the present Motions to Dismiss [130, 139]. After the
present motions were filed, Plaintiff’s appointed attorney moved to withdraw and requested that
all pending motions be stayed or continued.
The motion to withdraw was granted, but the
request to stay the Motions to Dismiss was denied. For the reasons discussed below,
Defendants’ Motions to Dismiss [130, 139] are granted.
Martin is a resident of Illinois. (FAC ¶ 2.) Defendants Officer Jason Torres and
Officer Megan Leonard were police officers with the City of Chicago Police Department. (Id.
¶ 3.) Defendant City of Chicago is a municipal corporation and the employer and principal of
Defendants Torres and Leonard. (Id. ¶ 4.) 1 Defendant Assistant State’s Attorney Jane Zak was
an Assistant State’s Attorney for the County of Cook. (Id. ¶ 5.) Defendant County of Cook is
alleged to be the employer and principal of Defendant Zak. (Id. ¶ 6.) 2
On November 22, 2010, Defendants Torres and Leonard (“Defendant Officers”) arrived
at 8100 S. Hermitage, Chicago, Illinois, to respond to an alleged domestic battery. (Id. ¶ 7.)
Plaintiff and his ex-wife, Jacqueline Kennedy, were outside the residence when the officers
arrived. (Id. ¶ 8.) Torres and Leonard immediately handcuffed the Plaintiff and put him in the
back of their car. (Id. ¶ 9.) She handed a gun to the officers and told them that her daughter
found the weapon in a dresser drawer. (Id. ¶ 11.) Plaintiff did not own or possess the gun that
was given to the officers. (Id. ¶ 12.) Plaintiff told the officers that the gun was not his. (Id.
The officers transported Plaintiff to the police station and charged him with failure to
possess a Fire Owner’s Identification card. (Id. ¶ 14.) While Plaintiff was at the police station,
Leonard left the station to get Jacqueline Kennedy to sign a complaint for domestic battery. (Id.
¶ 15.) Leonard returned with a signed complaint approximately an hour later. (Id. ¶ 16.) The
Defendants Torres, Leonard, and City of Chicago will be collectively referred to as the
Defendants Zak and Cook County will be collectively referred to as the “County
Defendant Officers did not see Plaintiff with a gun or see Plaintiff striking Kennedy. (Id. ¶ 17.)
Plaintiff alleges that the officers did not have probable cause to believe that any criminal
activity had taken place and asserts that he had not broken any laws. (Id. ¶¶ 18-19.) Plaintiff
further alleges that Torres and Leonard wrote false police reports and falsely testified. (Id. ¶¶ 20,
22-24.) Plaintiff alleges that Zak put white out through lines of important transcripts before
giving them to him. (Id. ¶ 28.) Plaintiff also states that the judge in his criminal trial told Zak to
redact discovery before giving it to him. (Id. ¶ 27.)
On November 29, 2010, the domestic-battery charge was dismissed without a preliminary
hearing because Kennedy did not come to court. (Id. ¶ 29.) After a bench trial on
August 29, 2013, Plaintiff was found not guilty of Felony Possession of a Weapon and Armed
Habitual Criminal. (Id. ¶ 30.)
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). All well-pleaded allegations
are presumed to be true, and all inferences are read in the light most favorable to the plaintiff.
Lavalais v. Village of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). However,
plaintiffs are not required to “plead the elements of a cause of action along with facts supporting
each element.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786
F.3d 510, 517 (7th Cir. 2015). Rather, the complaint must provide a defendant “with ‘fair
notice’ of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)
(quoting Fed. R. Civ. P. 8(a)(2) and Twombly, 550 U.S. at 555).
Plaintiff brings one claim for violations of his Fourteenth Amendment rights pursuant to
42 U.S.C. § 1983 against Defendant Jane Zak, Count I, and a claim of indemnity against Cook
County, Count IV.
In Count II, Plaintiff alleges that Zak tampered with transcripts. This claim is barred by
the absolute immunity provided to all prosecutorial actions that are “intimately associated with
the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). This
immunity is not just a defense to liability but immunity from suit. See Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). This Court previous held that Plaintiff’s claim that Zak tampered with a
transcript, brought under 42 U.S.C. § 1983, was barred by prosecutorial immunity.
Even if Plaintiff’s claim against Zak were not barred by prosecutorial immunity, Plaintiff
has not sufficiently pled a claim under the Fourteenth Amendment. Plaintiff brings a class-ofone claim and also alleges that he was unlawfully discriminated against due to his race. Classof-one claims are usually brought when a plaintiff “did not allege membership in a class or
group.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To state a class-of-one equalprotection claim, Plaintiff must allege that he was “intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Swanson v.
City of Chetek, 719 F.3d 780, 783-84 (7th Cir. 2013) (citing Olech, 528 U.S. at 564). “The
classic class-of-one claim is illustrated when a public official, ‘with no conceivable basis for his
action other than spite or some other improper motive . . . comes down hard on a hapless private
citizen.’” Id. at 784 (quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005)). Plaintiff
has not sufficiently alleged that he was intentionally treated differently from others similarly
situated by Zak or that there was no rational basis for Zak’s actions. In fact, Plaintiff alleges that
the judge in his criminal trial told Zak to redact discovery before giving it to him. (FAC ¶ 27.)
To state a claim for equal protection based on race, Plaintiff must allege that “he is a
member of a protected class, that he is otherwise similarly situated to members of the
unprotected class, and that he was treated differently from members of the unprotected class.”
Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005) (quotation omitted). Plaintiff has not alleged
that he is otherwise similarly situated to members of an unprotected class or that he was
intentionally treated differently from members of an unprotected class. Plaintiff only alleges that
he was discriminated against on the basis of race, but conclusory statements alone are not enough
to survive a motion to dismiss under 12(b)(6). Ashcroft, 556 U.S. at 678.
Count IV is an indemnity claim against Cook County for the acts of Zak. “A county is
liable for depriving an individual’s constitutional rights only if the deprivation was the result of
the county’s official policy, custom, or practice.” Wilson v. Giesen, 956 F.2d 738, 744 (7th Cir.
1992) (citing Monell v. Department of Social Services, 436 U.S. 658 (1978)). In Illinois, State’s
Attorneys and Assistant State’s Attorneys are State employees, not county employees. See
McGrath v. Gillis, 44 F.3d 567, 571 (7th Cir. 1995). As such, the County has no prosecutorial
policy and cannot have caused any of Plaintiff’s alleged injuries. See Jones v. City of Chicago,
639 F. Supp. 146, 154 (N.D. Ill. 1986). Nor may the County be vicariously liable based on the
conduct of the State’s Attorney’s Office under Illinois law. See Biggerstaff v. Moran, 671
N.E.2d 781, 784 (Ill. App. Ct. 1996).
Defendant Zak and Cook County’s Motion to Dismiss  is granted with prejudice.
Plaintiff brings one claim for violations of his Fourteenth Amendment rights pursuant to
42 U.S.C. § 1983 against Defendants Torres and Leonard, Count I, and a claim for indemnity
against the City of Chicago, Count III.
Plaintiff brings a class-of-one claim and also alleges
that he was unlawfully discriminated against due to his race.
In Count I, Plaintiff alleges that Leonard and Torres failed to investigate the firearm,
wrote false reports, illegally charged Plaintiff without a basis, and coerced Kennedy into signing
a domestic battery report. (FAC ¶¶ 34-38.) As stated above, to state a claim for equal protection
based on race, Plaintiff must allege that “he is a member of a protected class, that he is otherwise
similarly situated to members of the unprotected class, and that he was treated differently from
members of the unprotected class.” Brown, 398 F.3d at 916. Plaintiff has not alleged that he is
otherwise similarly situated to members of an unprotected class or that he was treated differently
from members of an unprotected class. Plaintiff alleges that he was discriminated against on the
basis of race, but mere conclusory statements are not enough to survive a motion under 12(b)(6).
Ashcroft, 556 U.S. at 678.
To state a class-of-one equal-protection claim, Plaintiff must allege that he was
“intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Swanson, 719 F.3d at 783-84 (citing Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000)). “The classic class-of-one claim is illustrated when a public
official, ‘with no conceivable basis for his action other than spite or some other improper motive
. . . comes down hard on a hapless private citizen.’” Id. at 784 (quoting Lauth, 424 F.3d at 633).
In his FAC, Plaintiff did not identify a similarly situated individual. However, in his
response, Plaintiff alleges that, while sitting in the police station, he “struck up a conversation
with a guy who was sitting in the next seat.” (Dkt. 149, p. 3.) Plaintiff states that this individual
told him: “he had gotten into an argument with his girlfriend also and that the police were called
and when they got there a gun was discovered. He informed the police that it was not his gun
and they did not charge him with the gun. They did not write up false reports.” (Id.) “Plaintiff
believes that discovery of the arrests for the night he was arrested in a 2[-]hour window will
reveal who that man was and give a comparison for the treatment and support my
discrimination.” (Id.) Facts alleged by a plaintiff in a response brief to a motion to dismiss “may
be considered when evaluating the sufficiency of a complaint so long as they are consistent
[with] the allegations in the complaint.” Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (citing
Gutierrez v. Peters, 111 F.3d 1364, 1367 n. 2 (7th Cir. 1997); Albiero v. City of Kankakee, 122
F.3d 417, 419 (7th Cir. 1997)). Plaintiff’s claim is consistent with the class-of-one allegations in
The City Defendants argue that Plaintiff has not sufficiently alleged that he and the man
who did not receive a weapons charge are similarly situated. There is no clear test for
determining if two individuals are similarly situated, but “similarly situated individuals must be
very similar indeed.” McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). In this
case, Plaintiff alleges that he and the man were both arrested for altercations with their
girlfriends, the police found a weapon in both cases, and both told police that the weapon was
not theirs. Plaintiff states that the man was not charged with a weapons crime. Defendants argue
that the man was not charged with battery; but Plaintiff must be “directly comparable . . . in all
material respects,” not exactly identical in all aspects. United States v. Moore, 543 F.3d 891, 896
(7th Cir. 2008).
As Plaintiff is proceeding pro se, his pleadings are liberally construed. Parker v.
Four Seasons Hotels, Ltd., 845 F.3d 807 (7th Cir. 2017). Plaintiff has sufficiently stated a classof-one claim as to his weapons charge against the City Defendants. The City Defendants’
Motion to Dismiss  is denied.
The County Defendants’ Motion to Dismiss  is granted with prejudice. The City
Defendants’ Motion to Dismiss  is denied.
February 28, 2017
JOHN W. DARRAH
United States District Court Judge
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