Jerry Liscak v. Sgt. M. Krummick #45 et al

Filing 35

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 10/23/2013: Defendants' motion to dismiss Count II 18 is denied, and the motion to strike claims for punitive damages in Count I and II is granted in part and denied in part. All dates previously set remain unchanged. Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERRY LISCAK,

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Plaintiff,
v.
VILLAGE OF JUSTICE, et al.,
Defendants.

No. 13 C 2685

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion to dismiss Count II and
to strike the claims for punitive damages in Counts I and II is granted in part and
denied in part. For the reasons stated below, the motion to dismiss Count II is
denied, and the motion to strike is granted in part and denied in part.

BACKGROUND
Defendant Sergeant M. Krummick (Krummick) is allegedly a police officer
who works for Defendant Village of Justice (Village). On October 3, 2011, Plaintiff
Jerry Liscak (Liscak) was driving his car in Justice, Illinois. Liscak claims that he
did not feel well and needed to pull over to the side of the road. Krummick then
pulled over to investigate Liscak’s car at the side of the road. Liscak contends that

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he complied and took a breathalyzer test three times and that he had no alcohol in his
system. According to Liscak, Krummick without justification took Liscak into
custody for driving under the influence and for several traffic violations. Liscak
further alleges that when he was taken to the police station, he asked why he was
being held, and he was tased without provocation. Liscak also contends that
Krummick falsely accused Liscak of battery and continued with the prosecution of
Liscak based on false statements. Liscak allegedly was found not-guilty on the
battery charges. Liscak includes in his complaint a claim brought pursuant to 42
U.S.C. § 1983 (Section 1983) alleging a violation of his Fourth and Fourteenth
Amendment rights (Count I), a malicious prosecution claim (Count II), and an
indemnification claim (Count III). Defendants now move to dismiss Count II and to
strike the request for punitive damages in Counts I and II.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
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‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see
also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive a
motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted). Pursuant to Federal Rule of Civil Procedure 12(f), “[t]he court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Id.

DISCUSSION
Defendants argue that Liscak has not alleged sufficient facts to state a
malicious prosecution claim and argue that Liscak improperly seeks punitive
damages in Counts I and II.

I. Malicious Prosecution Claim (Count II)
Defendants argue that Liscak’s claim for malicious prosecution is barred due
to the fact that he was convicted of the charged offenses. For a malicious
prosecution claim brought under Illinois law, a plaintiff must establish: (1) that “the
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defendant commenced or continued a criminal proceeding against the plaintiff,” (2)
that “the proceeding was terminated in favor of the plaintiff,” (3) that “there was no
probable cause to commence or continue the proceeding,” (4) that “the defendant
acted with malice,” and (5) that “the plaintiff suffered damages as a proximate result
of the defendant’s conduct. Thompson v. City of Chicago, 722 F.3d 963, 978 (7th
Cir. 2013)(stating that “a malicious prosecution action cannot be predicated on
underlying criminal proceedings which were terminated in a manner not indicative of
the innocence of the accused”)(internal quotations omitted)(quoting and citing
Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)).

A. Probable Cause
Defendants contend that Liscak was convicted of a crime and thus Krummick
was found to have probable cause for the arrest of Liscak for disobeying a traffic
control device. However, the record reflects that although Liscak was convicted for
disobeying a traffic control device, Liscak was found not-guilty on the battery
charge. The Seventh Circuit has indicated that “probable cause to believe an
individual committed one crime—and even his conviction of that crime—does not
foreclose a malicious prosecution claim for additionally prosecuting the individual on
a separate charge.” Holmes v. Village of Hoffman Estate, 511 F.3d 673, 682 (7th Cir.
2007)(stating that “a malicious prosecution claim is treated differently from one for
false arrest: whereas probable cause to believe that a person has committed any crime
will preclude a false arrest claim, even if the person was arrested on additional or
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different charges for which there was no probable cause, . . .probable cause as to one
charge will not bar a malicious prosecution claim based on a second, distinct charge
as to which probable cause was lacking”). Therefore, even if Krummick had
probable cause to arrest Liscak for disobeying a traffic control device, that would not
foreclose a malicious prosecution claim based on the battery charge.

B. Elements of Cause of Action
Defendants also argue that Liscak has not methodically alleged boilerplate
language for each element of a malicious prosecution claim. For example,
Defendants contend that Liscak’s failure to specifically allege that Krummick lacked
probable cause for the battery charge forecloses Liscak from pursuing a malicious
prosecution claim. However, under the federal pleading standard, a plaintiff is not
required to specifically cover each element of a cause of action in order to state a
valid claim to relief. Christensen v. County of Boone, IL, 483 F.3d 454, 459 (7th Cir.
2007)(stating that the federal pleading standard does “not require an exhaustive
recitation of the facts or elements of a plaintiff’s claim”)(internal quotations
omitted)(quoting Lekas v. Briley, 405 F.3d 602, 606 (7th Cir. 2005)); see also
Twombly, 550 U.S. at 570 (stating that the federal pleading standard does “not
require heightened fact pleading of specifics, but only enough facts to state a claim to
relief that is plausible on its face”); Gardunio v. Town of Cicero, 674 F.Supp.2d 976,
988 (N.D. Ill. 2009)(stating that “[t]he federal notice pleading standard, not Illinois’s
fact pleading requirement, applies to [the plaintiff’s] malicious prosecution claim”).
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Under the federal pleading standard, instead of focusing on a list of elements for a
cause of action, a court assesses whether the allegations contained in the complaint
plausibly suggest a valid claim to relief. Appert, 673 F.3d at 622. In the instant
action, Liscak alleges certain facts relating to alleged misconduct by Krummick,
which at this juncture the court must accept as true. At the summary judgment stage,
Liscak will no longer be able to rely on the allegations in his complaint and will have
to present sufficient evidence to support his malicious prosecution claim. Therefore,
Defendants’ motion to dismiss the malicious prosecution claim (Count II) is denied.

II. Punitive Damages
Defendants move to strike the request for punitive damages in Counts I and II.
In counts I and II, Liscak requests punitive damages from Krummick. (Compl. 2-3).
Defendants argue that to the extent that Liscak seeks to incorporate his request for
punitive damages in his claims against the Village, such requests for punitive
damages must be stricken. Liscak concedes in his response that he intends only to
seek punitive damages from Krummick individually. (Ans. 2). Therefore,
Defendants’ motion to dismiss the punitive damages request to the extent that
punitive damages are sought from the Village is granted.
Defendants also argue in their reply that to the extent that Liscak seeks
punitive damages from Krummick, there are not sufficient allegations to indicate the
type of misconduct that could support a punitive damages award against Krummick
individually. Liscak has made certain allegations concerning Krummick’s conduct
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that the court must accept as true at this juncture. See Alexander v. City of
Milwaukee, 474 F.3d 437, 453 (7th Cir. 2007)(explaining standard for punitive
damages). At the summary judgment stage Liscak will have to point to sufficient
evidence to support his request for punitive damages against Krummick individually
and Liscak will not be able to rely on mere allegations. Therefore, Defendants’
motion to strike the request for punitive damages from the Village in Counts I and II
is granted, and Defendants’ motion to strike the request for punitive damages from
Krummick individually is denied.

CONCLUSION
Based on the foregoing analysis, Defendants’ motion to dismiss Count II is
denied. Defendants’ motion to strike the request for punitive damages from the
Village in Counts I and II is granted, and Defendants’ motion to strike the request for
punitive damages from Krummick individually is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: October 23, 2013

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