Smith v. City Of North Chicago et al
Filing
37
MEMORANDUM OPINION AND ORDER: For the reasons set forth, Defendants' motion is granted in part and denied in part. If Plaintiff is in possession ofadditional factual allegations with respect to Mayor Rockingham that he believes may overcome the deficiencies identified by the Court, he may amend his first amended complaint within 28 days. Signed by the Honorable Robert M. Dow, Jr on 5/22/2014. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES SMITH,
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Plaintiff,
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v.
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NORTH CHICAGO POLICE OFFICER
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RAYMOND HARTMANN, NORTH
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CHICAGO POLICE OFFICER
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WILLIAM BOGDALA, THE CITY OF
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NORTH CHICAGO, MAYOR LEON
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ROCKINGHAM, JR., and former NORTH )
CHICAGO CHIEF OF POLICE
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MICHAEL NEWSOME,
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Defendants.
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Case No. 12-cv-09915
Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is a motion to dismiss [21] Plaintiff’s first amended complaint [19],
filed by Defendant Michael Newsome and later joined and adopted by Defendant Leon
Rockingham, Jr. For the reasons set forth below, Defendants’ motion is granted in part and
denied in part.
I.
Background1
Plaintiff Charles Smith alleges that Defendants violated his constitutional rights when
North Chicago police officer Raymond Hartmann slammed Plaintiff’s face into the floor,
fracturing his orbital socket and causing brain injuries and permanent vision loss, during the
1
The facts are drawn from Plaintiff’s first amended complaint. As noted, for the purposes of Defendants’
motion to dismiss, the Court assumes as true all well-pleaded allegations set forth in the complaint. See
Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).
course of his arrest on December 12, 2011. According to Plaintiff, officers Hartmann and
William Bogdala entered his third-floor hotel room at the Sleep Inn in Lake Bluff, Illinois and
arrested him in connection with a burglary investigation. With his hands cuffed behind his back,
Plaintiff attempted to escape down the hotel stairwell. Officer Hartmann managed to subdue the
fleeing suspect. But after doing so, Plaintiff alleges, Officer Hartmann “without justification,
slammed Plaintiff’s face and head into the flooring of the landing in the stairwell” while Officer
Bogdala “failed to intervene and in fact encouraged [Hartmann’s] use of excessive force.”
Plaintiff now sues Hartmann for excessive force in violation of 42 U.S.C. § 1983, assault and
battery, and negligence; sues Bogdala for allegedly violating Plaintiff’s constitutional rights by
failing to protect Plaintiff from Hartmann; and sues the City of North Chicago under Monell v.
Dept. of Soc. Servs., 436 U.S. 658 (1978).
But, relevant here, Plaintiff’s First Amended
Complaint (“FAC”) also alleges that Police Chief Michael Newsome and Mayor Leon
Rockingham, Jr. violated Plaintiff’s constitutional rights in their role as supervisors of and final
policy makers for (as defined by the City of North Chicago Code of Ordinances) the North
Chicago police department.
More specifically, Count V states that Newsome’s and Rockingham’s awareness of the
city’s recent history of police brutality, coupled with their failure to take steps to curb what
Plaintiff describes as a “crisis of police officers using excessive force,” is tantamount to
Newsome’s and Rockingham’s approval of their subordinates’ unconstitutional behavior. FAC ¶
83. Plaintiff alleges that police brutality in North Chicago was so rampant under Newsome’s
watch (during his five-year tenure as chief, officers filed 88 “use of force forms” to report
incidents where a suspect was injured by an officer during the course of arrest) that the NAACP
successfully lobbied the police department to issue a “Memorandum of Understanding Between
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the City of North Chicago and Minority Coalition,” which outlined a number of steps designed to
increase the transparency of the department’s complaint process and alleviate the epidemic.
FAC ¶¶ 54-56. In spite of the written reforms, Plaintiff alleges, Newsome and Rockingham
actively concealed police misconduct and deterred officers from reporting the misconduct of
their colleagues.
FAC ¶ 83.
Specifically, Plaintiff contends that Newsome rigged the
department’s reporting system so that citizen complaints bypassed internal affairs’ administrative
process and were presented directly to him. FAC ¶ 57. For example, Plaintiff alleges that on
September 4, 2011, Officer Hartmann “viciously slammed the face of [a man named] Dennis
Carcamo into the ground and into the side of his squad car.” FAC ¶ 69. Although Carcamo filed
a citizen’s complaint the following week, the complaint circumvented internal affairs, enabling
Newsome to ignore it; Newsome never responded to the complaint nor disciplined Hartmann.
FAC ¶ 70. To deter complaints within the department, Plaintiff claims that Newsome and
Rockingham instructed the department’s human resources director to reveal the names of
confidential complainants, thereby creating a fear among police officers that “their fellow
officers and or [Newsome] would harm their physical safety or careers” if they reported a
colleague’s use of excessive force.
FAC ¶¶ 77-78, 83.
By doing so, Plaintiff contends,
Newsome and Rockingham “fostered a climate which facilitated the physical abuse of arrested
individuals” and caused the constitutional violation that he allegedly suffered at the hands of
Officer Hartmann. FAC ¶¶ 88-89.
Plaintiff notes that Newsome resigned on February 27, 2012 “[i]n the face of public
outcry over police brutality” and amidst accusations that he embezzled $140,000 of assets that
had been seized by the department during drug raids. FAC ¶¶ 78, 80. Plaintiff alleges that, prior
to his resignation, Newsome was motivated to conceal incidents of police abuse out of fear that
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the abusing officers would expose his embezzlement, about which the officers in the department
knew either “through second-hand knowledge or direct participation.” FAC ¶ 78.
Defendants Newsome and Rockingham now move to dismiss for failure to state a claim.
II.
Motion to Dismiss Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a
Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d
1510, 1520 (7th Cir. 1990). As previously noted, reviewing a motion to dismiss under Rule
12(b)(6), the Court takes as true all factual allegations in Plaintiffs’ complaint and draws all
reasonable inferences in their favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6)
motion to dismiss, the claim first must comply with Rule 8(a) by providing “a short and plain
statement of the claim showing that the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)),
such that the defendant is given “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) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise
the possibility of relief above the “speculative level,” assuming that all of the allegations in the
complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or a
‘formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, “[s]pecific facts are not
necessary; the statement need only give the defendant fair notice of what the * * * claim is and
the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly,
550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility
as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi.,
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195 F.3d 950, 952 (7th Cir. 1999) (“Whether a complaint provides notice, however, is
determined by looking at the complaint as a whole.”).
III.
Analysis
A.
Failure to State a Claim
Defendants seek dismissal of Plaintiffs’ complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure (“FRCP”), arguing that Plaintiff’s FAC fails to state a
constitutional claim against them because it lacks an allegation that they were personally
involved in Hartmann’s alleged use of excessive force. “In order for a supervisor to be liable,
they must be personally responsible for the deprivation of the constitutional right.” Matthews v.
City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012). “To show personal involvement, the
supervisor must ‘know about the conduct and facilitate it, approve it, condone it, or turn a blind
eye for fear of what they might see.” Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 99293 (7th Cir. 1988)). Defendants argue that Plaintiff merely claims that Defendants “had a
custom of not disciplining [their] subordinates,” which amounts to “inaction” rather than
personal involvement in (or even acquiescence of) Hartmann’s alleged transgression. MTD at 5.
“There is no evidence that Chief Newsome [or Mayor Rockingham] stood by while the
individual officers were going to violate Plaintiff’s rights,” Defendants say. Id.
Plaintiff counters that, even though Defendants may not have physically participated in
Hartmann’s alleged act of abuse, they should still be liable as a proximate cause of Plaintiff’s
injuries because “[t]hey established and maintained a practice of allowing the use of excessive
force during the detention and/or arrest of accused individuals knowing it would directly cause
constitutional harm.” Pl. Opp. Br. at 2. Defendants argue that these policy-related accusations
may state Monell claims against the city, but that they cannot support claims, like this one,
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premised on supervisory liability. Plaintiff argues that the Third Circuit’s 25-year-old decision
in Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989), instructs otherwise.
In Stoneking, a student sued her school district and its superintendent, as well the
principal and assistant principal of her school, for violations of Section 1983, seeking to hold the
defendants responsible for the alleged sexual abuse that the plaintiff suffered by the school’s
band director. 882 F.2d at 722. At summary judgment, evidence demonstrated that other female
students had previously complained that the band director had tried to rape or sexually assault
them, but in response, the principal merely forbade the band director from having one-on-one
contact with female students. Id. The evidence in the record also showed that, in total, the
principal and assistant principal had received at least five complaints about sexual assaults of
female students by other teachers and staff members in the four years leading up to the plaintiff’s
abuse. Id. at 728-29. Yet the defendants recorded these complaints in secret files that they kept
at home and discouraged and/or intimidated students and parents from pursuing complaints after
lodging them. Id. at 729. The plaintiff’s theory of liability, accepted by the Third Circuit, was
that the defendants, “with deliberate indifference to the consequences, established and
maintained a policy, practice, or custom” that caused her abuse. Id. at 725. Analyzing the
plaintiff’s claim as one based on a due process right to be free from unjustified intrusions on
personal security, the Third Circuit rejected the defendants’ claim to qualified immunity because
“the constitutional right [the plaintiff] allege[d], to freedom from invasion of her personal
security through sexual abuse, was well-established at the time the assault upon her occurred.”
Id. at 726-27. Further, the court determined that it was clearly established in the Third Circuit at
the time of the plaintiff’s abuse that, although “the mere failure of supervisory officials to act or
investigate cannot be the basis of liability,” “such officials may not with impunity maintain a
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custom, practice or usage that communicated condonation or authorization of assaultive
behavior.” Id. at 730. For that reason, the Third Circuit held that the principal and assistant
principal were not entitled to qualified immunity. However, the Court determined that the
actions of the school’s superintendent – who had been informed of some of the complaints –
“amount[ed] to mere inaction and insensitivity,” and that the record was void of any “affirmative
acts” by the superintendent from which the Court could conclude that he tolerated, condoned, or
encouraged the sexual misconduct of the teachers. Id. at 731. Accordingly, the Third Circuit
granted the superintendent’s motion for summary judgment. Id.
Defendant Newsome argues that Stoneking is not the law in the Seventh Circuit – that to
be held liable under Section 1983, “there must at least be a showing that the defendant
acquiesced in some demonstrable way in the alleged constitutional violation.” Newsome Reply
Br. at 3. Defendant Rockingham makes the same argument and adds that, even if Stoneking is
relevant in the Seventh Circuit, its application should be limited “to factual scenarios involving
school supervisor’s policies that permit physical abuse of student-plaintiffs.” Rockingham Reply
Br. at 3. Both Defendants contend that Plaintiff is attempting to advance a new theory of
liability in the Seventh Circuit, and so even if the Court determines that the rationale of
Stoneking does apply in the police-excessive-force context, the factual dissimilarities between
this case and those in the student-sexual-abuse context shield them from suit by way of qualified
immunity.
To begin with, the Court points out that the Seventh Circuit has explicitly recognized the
viability of the Stoneking theory of liability, at least in the student-abuse context. See T.E. v.
Grindle, 599 F.3d 583, 590 (7th Cir. 2010). In Grindle, school officials covered up numerous
complaints by students of sexual abuse by one of their teachers, after which future victims sued
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the principal, alleging that his doing so violated their equal protection rights. 599 F.3d at 588-89.
Based on the Seventh Circuit’s previous citations to Stoneking, the Court rejected the principal’s
claim to qualified immunity because “a reasonable school principal would have concluded that
she could be held liable for turning a blind eye to and affirmatively covering up evidence of child
sexual abuse by one of her teachers.” Id. at 590. And in affirming the district court’s denial of
the principal’s motion for summary judgment, the Seventh Circuit said that:
It is important to note that, as in Stoneking, plaintiffs are not relying on a theory
that mere failure of supervisory officials to act violates the Due Process Clause.
Rather, plaintiffs allege that [the principal] is liable for actively concealing reports
of abuse and creating an atmosphere that allowed abuse to flourish. In other
words, they argue that [the principal’s] own actions deprived them of their
constitutional right to bodily harm.
Id. The Seventh Circuit did so, it seems, to clarify that its acknowledgement of Stoneking did not
disturb the well-settled law in this Circuit that supervisors cannot be held liable for Section 1983
violations unless they were personally responsible for the deprivation of a constitutional right.
Although Stoneking (or at least Grindle’s articulation of it) is viable law in the Seventh
Circuit, the Court agrees with Defendants that our court of appeals has not had occasion to
consider whether the theory of liability recognized in Stoneking is cognizable in a case of police
brutality. Therefore, Plaintiff is attempting to assert a new theory of excessive force liability
here. The Seventh Circuit acknowledged the applicability of Stoneking in cases premised on due
process violations stemming from invasions of one’s personal security through sexual abuse. By
contrast, Plaintiff’s claim against Defendants here is premised on a violation of his Fourth
Amendment rights stemming from allegations of excessive force during an arrest, and Plaintiff is
seeking to hold supervisors liable on what is essentially a Monell-type theory of liability. So the
allegations are different in kind – premised on a different constitutional violation, in an entirely
different context, and where a plaintiff can already hold the city responsible for unconstitutional
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policies/practices/customs that caused him harm. For that reason, the Court is reticent to break
ground and proclaim, as Plaintiff urges, that supervisors in a police department, all the way up
through a city’s mayor, can be held liable for creating a “climate” that enabled an officer to
inflict harm on an arrestee, particularly when our court of appeals has not done so. However, the
Court need not determine whether Stoneking has relevance in the police brutality context (or
whether qualified immunity would shield either or both Defendants from liability if it did),
because that answer would not affect the Court’s ultimate determination on this motion.
As mentioned, Stoneking does not disturb the well-settled principle in the Seventh Circuit
that a supervisor cannot be held liable for a subordinate’s unconstitutional conduct unless a
plaintiff demonstrates that the supervisor “kn[e]w about the conduct it, facilitate[d] it, approve[d]
it, condone[d] it, or turn[ed] a blind eye for fear of what they might see.” Matthews, 675 F.3d at
708. Here, for the purpose of surviving a motion to dismiss, Plaintiff has done that with respect
to Police Chief Newsome. Plaintiff alleges that on September 4, 2011 – just three months prior
to the incident about which Plaintiff complains – Officer Hartmann “viciously slammed” a
suspect’s face into the ground and into the side of his squad car. FAC ¶ 69. The victim filed a
citizen’s complaint the following week, but Police Chief Newsome ensured that the complaint
bypassed the internal affairs protocol, and came straight to his desk. FAC ¶ 70. Because it did,
Newsome was able to ignore the complaint and allow Officer Hartmann to go undisciplined.
FAC ¶ 70.
Drawing all reasonable inferences in Plaintiff’s favor, the FAC suggests that
Newsome did this to ensure that Hartmann would not retaliate and expose Newsome’s
embezzlement. FAC ¶ 79. Taking the facts in the light most favorable to Plaintiff, Newsome
condoned Hartmann’s practice of abusive treatment (i.e., viciously slamming the faces of
arrestees) and, by covering up the citizen’s complaint, signaled to Hartmann that similar actions
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would be of no consequence in the future. In that sense, it reasonably can be said that Newsome
was “personally responsible for the deprivation of the constitutional right” of which Plaintiff
complains – Hartmann’s smashing of Plaintiff’s face just a few months later. See Matthews, 675
F.3d at 708. Irrespective of some amorphous custom, practice, or policy that Plaintiff alleges
that Newsome instituted (and which, Plaintiff argues, supports the application of Stoneking here),
Newsome, at the very least, turned a blind eye to the precise act complained of by Plaintiff,
thereby conveying to Hartmann that he could perform this act with impunity.
Newsome
therefore facilitated the alleged excessive force inflicted on Plaintiff by Hartmann, and, as such,
Plaintiff has stated a Section 1983 claim against Newsome.
Plaintiff, however, has not alleged personal involvement with respect to Mayor
Rockingham. Plaintiff contends that Rockingham failed to implement the recommendations
commissioned by the NAACP and memorialized in the “Memorandum of Understanding
Between the City of North Chicago and Minority Coalition,” despite his knowledge of a
“practice and pattern among the City of North Chicago’s police officers . . . of using excessive
force.” FAC ¶¶ 2, 26. Plaintiff also alleges that Rockingham, along with Newsome, “prevented
officers from reporting misconduct by violating the officers’ confidences when they reported this
sensitive information.”
FAC ¶ 4.
According to Plaintiff, these acts demonstrate that
Rockingham “established and maintained [a] policy of allowing the use of excessive force during
the arrest and/or detention of accused individuals with deliberate and reckless indifference to the
consequences.” FAC ¶ 4. This merely is a Monell claim dressed up in Stoneking language. See
Rice ex re. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012) (“In order to recovery
against a municipal . . . defendant under section 1983, . . . [the plaintiff] must show that his
injury was the result of the municipality’s . . . official policy or custom.”); Stoneking, 882 F.2d at
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725 (“[W]e hold that [the plaintiff] may [maintain a viable section 1983 claim] because she has
also alleged that defendants, with deliberate indifference to the consequences, established and
maintained a policy, practice, or custom which directly caused her constitutional harm.”).
In Grindle, the Seventh Circuit concluded that the Court’s prior references to Stoneking
precluded the defendants from availing themselves of the protections of qualified immunity. 599
F.3d at 590. But Grindle did not dispense with the requirement that, for supervisory liability to
attach, a defendant supervisor must have been personally involved in the constitutional violation.
Mayor Rockingham’s alleged failure to institute sweeping corrective measures in the department,
such as those promulgated at the behest of the NAACP, amounts to mere inaction, not personal
involvement.
And the causal connection between Mayor Rockingham’s alleged effort to
discourage officers from reporting their colleagues by breaching confidences and Hartmann’s
alleged abuse of Plaintiff is too attenuated for the Court to conclude that Rockingham was
“personally involved” in the shattering of Plaintiff’s orbital. Plaintiff’s argument would have to
be that Hartmann abused Plaintiff during his arrest, because he believed that Bogdala (his fellow
arresting officer on the scene) would not report his misconduct thanks to Mayor Rockingham’s
general discouragement of such a practice. Whereas Plaintiff alleges that Police Chief Newsome
knew of, condoned, and facilitated Hartmann’s abuse of Plaintiff by keeping secret a recent,
nearly-identical allegation, Plaintiff’s complaint does not even state that Mayor Rockingham was
aware of Hartmann’s prior face-smashing incident (or that he even knew that Hartmann was a
member of the city’s police force, for that matter). Accordingly, the Court concludes that
Rockingham’s actions were too far removed from Plaintiff’s incident to say that he was
personally involved, and Plaintiff’s allegations concerning unconstitutional policies or customs
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instituted by the Mayor of North Chicago must be brought as Monell claims against the city itself
(which, the Court notes, Plaintiff has appropriately done in Count VI of his FAC).
Stoneking, even if it did apply in the excessive force context, would not change this
result. As mentioned above, the Third Circuit concluded that qualified immunity did not shield
from liability the defendant principal – who personally received multiple complaints of sexual
misconduct from female students, kept them hidden in secret files, and announced a corrective
“policy” to the band director whereby he forbade him from having one-on-one contact with
female students. 882 F.2d at 722. However, the Court determined that the superintendent – who
was told of some of the complaints, but took no part in the cover up – could not be held liable,
because his behavior did not amount to an affirmative act that resulted in the plaintiff’s abuse.
Id. at 731. Here, Mayor Rockingham is more like the superintendent, who at most was aware of
complaints of police abuse (by way of lawsuits against the city, if nothing else), than the
principal, who actively attempted to hide complaints in a secret file. Although Plaintiff’s FAC
makes the conclusory allegation that Rockingham and Newsome “approved and condoned the
City of North Chicago’s police officers using excessive force” by “actively concealing police
misconduct,” the actual facts that Plaintiff alleges do not support this conclusion with respect to
Mayor Rockingham. Again, the FAC is devoid of allegations that Mayor Rockingham covered
up (or even knew) of Officer Hartmann’s previous face-smashing incident. Therefore, the
allegation that Rockingham covered up incidents of police misconduct strikes the Court as a
“formulaic recitation” of the language from the case law, and one that does not give Defendant
“fair notice of what the * * * claim is and the grounds upon which it rests.” Twombly, 550 U.S.
at 555. In short, even under a Stoneking theory of liability, Plaintiff would fail to state a claim
that Rockingham caused his injuries.
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That said, if Plaintiff is in possession of additional factual allegations with respect to
Mayor Rockingham that he believes may overcome the deficiencies identified by the Court, he
may amend his first amended complaint within 28 days.
B.
Qualified Immunity
At least at this stage of the litigation, Defendant Newsome is not entitled to qualified
immunity. “Qualified immunity shields government actors from liability for civil damages
where their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have been aware.” Hernandez ex rel. Hernandez v. Foster,
657 F.3d 463, 473 (7th Cir. 2011) (internal citations omitted). “When making a qualified
immunity determination, a court considers (1) whether the plaintiff’s allegations show that the
defendant violated a constitutional right, and (2) whether that right was ‘clearly established’ at
the time of defendant’s conduct.” Id. Newsome acknowledges that “qualified immunity is not
applicable for direct participants in a Section 1983 action,” but argues that Plaintiff’s FAC is
void of allegations of “individual involvement in the alleged constitutional deprivation” and
merely paints him as a non-participant policymaker. Newsome Reply Br. at 4. If the Court were
denying Newsome’s motion to dismiss on a Stoneking theory of liability, this argument may
have had some traction. But instead, the Court has determined that Plaintiff’s FAC does allege
that Newsome was personally involved in Plaintiff’s alleged constitutional violation in so far as
he states a claim that Newsome approved of and facilitated Officer Hartmann’s conduct. On
December 12, 2011, the date of Plaintiff’s alleged injury, it was clearly established that using
excessive force to effectuate an arrest violated an arrestee’s Fourth Amendment rights, (see e.g.,
Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir. 2009)), and that supervisors who
approved, condoned, or facilitated a subordinate officer’s use of that force also violates the
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arrestee’s constitutional rights (See Jones, 856 F.2d at 992-93). Accordingly, taking Plaintiff’s
allegations as true as we must, the Court rejects Newsome’s claim to qualified immunity at this
time.
IV.
Conclusion
For the reasons stated above, Defendants’ motion to dismiss [21] is granted as to
Defendant Rockingham but denied as to Defendant Newsome. If Plaintiff is in possession of
additional factual allegations with respect to Mayor Rockingham that he believes may overcome
the deficiencies identified by the Court, he may amend his first amended complaint within 28
days.
Dated: May 22, 2014
____________________________
Robert M. Dow, Jr.
United States District Judge
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