Smith v. City Of North Chicago et al
Filing
50
MEMORANDUM OPINION AND ORDER: Defendants' motion to dismiss 44 Plaintiff's second amended complaint ("SAC") 39 as to Defendant Rockingham is denied. Signed by the Honorable Robert M. Dow, Jr on 9/30/2014. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES SMITH,
)
)
Plaintiff,
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v.
)
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NORTH CHICAGO POLICE OFFICER
)
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
)
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 Defendant Mayor Leon Rockingham, Jr.’s motion to dismiss [44]
Plaintiff’s second amended complaint (“SAC”) [39]. The Court denies Defendant’s motion for the
reasons set forth below.
I.
Background 1
Plaintiff alleges that Officers Hartmann and William Bogdala violated his constitutional
rights by using excessive force against him. More specifically, according to Plaintiff’s complaint,
on December 12, 2011, the two officers entered Plaintiff’s hotel room and arrested him in
connection with a burglary investigation. Plaintiff ran toward the hotel stairwell to escape with his
1
The facts are drawn from Plaintiff’s SAC. 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).
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hands cuffed behind his back, but Hartmann tackled him, brought him to the ground, and subdued
him. “[W]ithout justification,” Officer Hartmann then “slammed Plaintiff’s face and head into the
flooring of the landing in the stairwell,” fracturing his orbital socket and causing permanent vision
loss as well as brain injuries. SAC at ¶ 19. Throughout the incident, Officer Bogdala “failed to
intervene and in fact encouraged [Hartmann’s] use of excessive force.” Id. at ¶ 20.
Plaintiff sues Officer Hartmann for use of excessive force in violation of 42 U.S.C. § 1983;
Officer Bogdala for failing to intervene in violation of § 1983; the City of North Chicago for
carrying out a policy of police brutality in violation of Monell v. Dep’t. of Soc. Servs., 436 U.S.
658 (1978); the two officers and the City of North Chicago for battery, assault and negligence;
and, most relevant here, Mayor Rockingham and the Chief of Police for violating § 1983 in their
individual and official capacities (Count V).
In Count V of the first amended complaint (“FAC”), Plaintiff alleged that Mayor
Rockingham—supervisor of the police department and final policy maker under the City of North
Chicago Code of Ordinances—knew about a pattern of police brutality and failed to stop it. Police
brutality in North Chicago was so rampant that, according to the FAC, officers filed 88 “use of
force forms” reporting injuries of arrestees between approximately 2006 and 2011. One of these
complaints allegedly accused Officer Hartmann of “viciously slam[ing] the face of Dennis
Carcamo into the ground and the side of his squad car.” Plaintiff further alleged that the NAACP
lobbied the police department to issue a “Memorandum of Understanding Between the City of
North Chicago and Minority Coalition,” which outlined nine steps to increase transparency in the
complaint process, seven of which Rockingham failed to implement. According to Plaintiff,
Mayor Rockingham directed human resources to reveal the names of officers filing confidential
complaints regarding the misconduct of fellow officers. He allegedly approved and condoned the
police force’s use of excessive force by “[c]ontinually allowing” it; “[r]efusing to take corrective
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actions”; “[a]ctively concealing police misconduct”; and “[d]eterring individual officers from
reporting misconduct.” FAC at ¶ 83. Mayor Rockingham additionally “established a practice” of
allowing excessive force and “fostered a climate” that facilitated physical abuse of arrestees. Id. at
¶¶ 86, 88. This policy “directly caused” Plaintiff’s constitutional injury at the hands of Officers
Hartmann and Bogdala. Id. at ¶ 18.
The Court dismissed Count V of the FAC as to Mayor Rockingham for failure to state a
claim under Federal Rule of Civil Procedure Rule 12(b)(6). Specifically, the Court found that the
claim against Mayor Rockingham in his individual capacity failed because the allegations failed to
allege his personal involvement with Plaintiff’s particular injuries. 2 “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) (quoting Chavez v. Illinois
State Police, 251 F.3d 612, 651 (7th Cir. 2001) (quoting Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995))). “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.”
Matthews, 675 F.3d at 708 (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.
1988)). The FAC failed to allege that Mayor Rockingham knew of Officer Hartmann, let alone his
prior face-smashing incident with Dennis Carcamo. Further, Mayor Rockingham’s alleged actions
were too attenuated from Plaintiff’s injury to state a claim for supervisory liability. As for the
FAC’s allegations that Rockingham “established a practice” and “fostered a climate” of excessive
force, the Court found these allegations to be a Monell claim dressed up as a claim against the
mayor in his individual capacity. The Court accordingly granted Plaintiff 28 days to amend the
2
In dismissing Count V of the FAC, the Court did not expressly address Count V’s claim against Mayor Rockingham
in his official capacity because it was duplicative of the Monell Claim against the City of North Chicago in Count VI.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55 (1978) (“official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent”). The Court dismissed the entire
count with respect to Mayor Rockingham because the failure of the individual capacity claim, as explained in the
opinion, combined with the redundancy of the official capacity claim led the entire count to fail under Rule 12(b)(6).
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FAC with additional factual allegations of Mayor Rockingham’s personal involvement with
Plaintiff’s injuries.
Plaintiff subsequently filed the SAC, alleging several new events, all of which occurred
prior to Plaintiff’s arrest. Most relevant here, Mayor Rockingham allegedly learned that a woman
named Sharon Jackson had filed an excessive force complaint, accusing Officer Bogdala of
punching her in the face and breaking her eye socket. Id. at ¶ 78. Also before Plaintiff’s arrest,
Assistant Chief of Operations Crystal Phillips allegedly “notified Mayor Rockingham of the
excessive and unlawful use of force by the City of North Chicago police officers, including her
belief that the behavior of City of North Chicago police officers, including Defendant Officers,
was inappropriate and likely to lead to future complaints of excessive and unlawful use of force.”
Id. at ¶ 76. Due to numerous complaints of excessive force, Chief of Police Michael Newsome
recommended firing Officer Bogdala, but, upon learning of this recommendation, Mayor
Rockingham “recommended and informed Chief of Police Newsome not to fire” him. Id. at ¶ 82.
In 2008, Officer Bogdala was consequently given a “‘last chance’ three-year agreement to
continue working as a police officer for the City of North Chicago with the knowledge and
approval of Mayor Rockingham.” Id. at ¶ 83.
Defendants now seek dismissal of Plaintiffs’ complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, arguing that the SAC still fails to allege personal involvement
and that, alternatively, Mayor Rockingham is entitled to qualified immunity.
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
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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., 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.
Personal Involvement
“In order for a supervisor to be liable, they must be personally responsible for the
deprivation of the constitutional right.” Matthews, 675 F.3d at 708 (7th Cir. 2012). Gross
negligence is insufficient. Rather, “supervisors must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they might see. They must in other
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words act either knowingly or with deliberate, reckless indifference.” Jones, 856 F.2d at 992-93
(citations omitted).
Plaintiff’s SAC offers several theories of Mayor Rockingham’s liability in his individual
capacity. 3 At a minimum, the theory relating to his supervision of Officer Bogdala states a claim
under Rule 12(b)(6). The allegations are as follows. Prior to Plaintiff’s arrest, Mayor Rockingham
learned of two or more incidents when Officer Bogdala used excessive force. He learned of
Sharon Jackson’s complaint accusing Officer Bogdala of punching her in the face and breaking her
eye socket. Id. at ¶ 78. He also learned from Assistant Chief of Operations Crystal Phillips that
Officer Bogdala had previously used excessive force. 4 Because of this record of misconduct, the
Chief of Police recommended firing him.
When Mayor Rockingham learned of this
recommendation, he intervened, “recommend[ing] and inform[ing] Chief of Police Newsome not
to fire” him. Id. at ¶ 82 (b). The Chief of Police refrained from firing Officer Bogdala “[a]s a
result of Mayor Rockingham’s recommendation.” Id. at ¶ 82(c). Instead, he gave Officer Bogdala
a “last chance” three-year employment agreement.
During the course of this continued
employment, Officer Bogdala allegedly violated Plaintiff’s constitutional rights.
The SAC paints a picture that the FAC does not—one that is sufficient to state a claim
under Rule 12(b)(6). According to the FAC, Mayor Rockingham facilitated a policy of police
brutality; then two officers in the police force happened to use excessive force against Plaintiff. As
the Court’s prior opinion explained, this theory lacked personal involvement and a causal
3
Again, the Court need not address Count V’s claim against Mayor Rockingham in his official capacity because it in
duplicative of the Monell Claim against the City of North Chicago in Count VI. See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691 n. 55 (1978).
4
The SAC alleges that “Crystal Phillips notified Mayor Rockingham of the excessive and unlawful use of force by
the City of North Chicago police officers, including her belief that the behavior of City of North Chicago police
officers, including Defendant Officers, was inappropriate and likely to lead to future complaints of excessive and
unlawful use of force.” Id. at ¶ 76. Drawing all reasonable inferences from this ambiguously-worded allegation in
favor of Plaintiffs, the Court assumes Phillips told Mayor Rockingham that Bogdala specifically had used excessive
force.
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connection. According to the SAC, however, Rockingham knew of the particular officer who
injured Plaintiff—Officer Bogdala. He knew that this officer had a record of excessive force, he
knew that the Chief of Police recommended firing him because of this record, and he put a stop to
the firing process. As a result of the mayor’s intervention, Officer Bogdala participated in an
arrest allegedly involving a constitutional injury to Plaintiff. This new theory of supervisory
liability in the SAC sufficiently alleges that Mayor Rockingham was “personally responsible for
the deprivation of the constitutional right.” Matthews, 675 F.3d at 708 (7th Cir. 2012). It alleges
that Mayor Rockingham knew about Officer Bogdala’s prior misconduct and that he facilitated it,
approved it and condoned it by preventing him from being fired. See Jones, 856 F.2d at 992-93
(citations omitted).
Defendants argue that the SAC fails to “substantiate that Mayor Rockingham condoned
similar conduct to that which is alleged in the SAC.” Mot. to Dismiss at 7. The SAC alleges that
Officer Bogdala caused Plaintiff a constitutional injury by failing to intervene, not by using
excessive force himself. Yet, according to Defendants, the SAC does not provide that Mayor
Rockingham had previous knowledge of Officer Bogdala failing to intervene in other incidents.
“Therefore, the Mayor’s actions could not have conveyed to Officer Bogdala ‘that similar actions
would be of no consequence in the future.’” Id. (citing Doc. 37 at 9-10).
First, drawing all reasonable inferences in Plaintiff’s favor, the Court infers that, as a
practical reality, if Mayor Rockingham approved of Officer Bogdala’s prior face-smashing
incident with Sharon Jackson, his approval would apply equally (if not more so) to a failure to
intervene—an omission being arguably less offensive than an overt act. Second, Defendant’s
argument, which cites no supporting case law, misses a point made clear in Seventh Circuit
precedent—that an affirmative act of excessive force and a failure to intervene in another officer’s
use of excessive force both violate § 1983. “Omissions as well as actions may violate civil rights.”
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Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). “We believe it is clear that one who is given the
badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop
other officers who summarily punish a third person in his presence or otherwise within his
knowledge.” Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972). To hold otherwise would insulate
non-intervening officers from liability for “reasonably foreseeable consequences of the neglect of
their duty to enforce the laws and preserve the peace.” Id. Defendant’s attempt to formalistically
limit the scope of Mayor Rockingham’s approval to Officer Bogdala’s misfeasance, as opposed to
nonfeasance, contradicts the thrust of the case law under § 1983. At the pleading stage, Plaintiff
has alleged enough factual details to support an inference that, as mayor, Rockingham knew that
the law does not distinguish between misfeasance and nonfeasance and that, when he allegedly
approved of Officer Bogdala’s past § 1983 violations, he effectively condoned future § 1983
violations, regardless of whether those involved misfeasance or nonfeasance.
B.
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 quotations and 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. (internal quotations and citations omitted).
At issue is the second prong of this analysis. At the time 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). It also
was clearly established that supervisors who approved, condoned, or facilitated a subordinate
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officer’s use of excessive force violated the arrestee’s constitutional rights. See Jones, 856 F.2d at
992-9; Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 477-78 (7th Cir. 1997); Morfin v. City
of E. Chicago, 349 F.3d 989, 1001 (7th Cir. 2003); Backes v. Vill. of Peoria Heights, Ill., 662 F.3d
866, 869-71 (7th Cir. 2011); Matthews v. City of E. St. Louis, 675 F.3d 703, 708-09 (7th Cir.
2012).
Defendant argues that the SAC fails to allege Mayor Rockingham’s personal involvement
in Plaintiff’s injury, rendering liability under Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720
(3d Cir. 1989) the only remaining theory of personal liability under § 1983. Defendants further
argue that it was not clearly established whether Stoneking applied to an excessive force case in
this circuit. The Court need not address this argument, as it finds that the SAC does allege Mayor
Rockingham’s personal involvement.
IV.
Conclusion
For the reasons stated above, Defendants’ motion to dismiss [44] Plaintiff’s SAC [39] as to
Defendant Rockingham is denied.
Dated: September 30, 2014
____________________________
Robert M. Dow, Jr.
United States District Judge
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