Marshbanks v. City of Calumet City et al

Filing 32

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/10/2013:Mailed notice(kef, )

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

ANTHANETTE MARSHBANKS,
as Special Administrator of the Estate of
Archie Lee Chambers, Jr.,

)
)
)
)
Plaintiff,
)
)
v.
)
)
CITY OF CALUMET CITY; OFFICER
)
LUCIOUS, STAR NO. 230, OFFICER
)
GERSTNER, STAR NO. 188, OFFICER )
FISHER, STAR NO. 168, OFFICER
)
LASTER, STAR NO. 206, OFFICER T.
)
MOTTL, STAR NO. 214, OFFICER
)
HINTZ, STAR NO. 148, LT. DIFIORI,
)
STAR NO. 150, OFFICER BLAND, STAR )
NO. 234, CHIEF EDWARD GILMORE, )
Star no. 227 and UNKNOWN OFFICERS, )
)
Defendants.
)

No. 13 C 2978

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On April 19, 2013, Plaintiff Anthanette Marshbanks filed a ten-count Complaint against
Defendants City of Calumet City (the “City”), and numerous officers, including Lieutenant
DiFiori and Chief Edward Gilmore, (collectively, the “Defendants”). (R. 1, Compl.) The
Complaint alleges the following: Count I – excessive force against all Defendants; Count II – a
Monell claim against the City; Count III – conspiracy against all Defendants; Count IV – failure
to intervene against all Defendants; Count V – failure to supervise against Chief Gilmore and Lt.
Difiori; Count VI – intentional infliction of emotional distress against all Defendants; Count VII
– wrongful death against all Defendants; Count VIII – violation of the Survival Act against all

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Defendants; Count IX – respondeat superior against the City; Count X – indemnification. The
City, Lieutenant Difori, and Chief Gilmore (collectively, the “Moving Defendants”) moved to
dismiss Ms. Marshbanks’ Complaint, except for Counts IX and X, pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6), and to strike certain immaterial, impertinent, and redundant
allegations pursuant to Rule 12(f). (R. 17, Mot.) Defendants Bland, Fisher, Gerstner, Hintz,
Laster, Lucious, and Mottl joined in and adopted the Moving Defendants’ motion to dismiss. (R.
20, 22.)
BACKGROUND
Ms. Marshbanks alleges the following facts which the Court deems true for purposes of
this motion.
On or about April 21, 2012, one of more Calumet City police officers shot and killed
Archie Chambers, Jr., Ms. Marshbank’s son. (Compl. ¶¶ 2, 5.) Mr. Chambers was attending a
car show at What’s Up Bar and Grill that evening. (Id. ¶ 8.) While at the bar, someone – not
Mr. Chambers – shot his friend, Willie Randall White, Jr. in the parking lot. (Id. ¶¶ 9-11.) After
the shooting, Mr. Chambers attempted to leave the parking lot by jumping a fence. (Id. ¶ 14.)
Officers who arrived on the scene, and who had no information implicating Mr. Chambers,
began shooting at Mr. Chambers when he was at the top of the fence. (Id. ¶ 15.) Three shots hit
Mr. Chambers, resulting in his death. (Id. ¶¶ 16, 20.) There was no gun or other weapon
recovered from Mr. Chambers’ body. (Id. ¶ 19.) Officers, other than those who discharged their
weapons, completed a police report of the incident. (Id. ¶ 24.) The Calumet Chief of Police did
not discipline any officer in connection with Mr. Chambers’ death. (Id.)
Calumet City police officers were involved in another shooting incident in early 2012,
months before Mr. Chambers’ death. (Compl. ¶¶ 25-30.) In that incident, officers shot a fifteen-

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year-old autistic boy, Stephon Watts, twice, including a shot to the head. (Id. ¶¶ 27-28.) Ms.
Marshbanks believes that the Chief of the Police Department failed to discipline any officer, or
send any officer to remedial training, after that incident. (Id. ¶¶ 29-30.)
LEGAL STANDARD
I.

Motion to Dismiss Pursuant to Rule 12(b)(6)
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief

may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must
“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation
omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put
differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “In evaluating the
sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as
true all well-pleaded factual allegations and making all possible inferences from the allegations
in the plaintiff’s favor.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).
II.

Motion to Strike Pursuant to Rule 12(f)
“Rule 12(f) provides that a district court ‘may strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter.’” Delta Consulting
Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009) (quoting Fed. R. Civ. P.

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12(f)). Motions to strike are appropriate if they serve to expedite litigation. See Heller Fin., Inc.
v. Midwhey Powder, 883 F.2d 1286, 1294 (7th Cir. 1989); see also Talbot v. Robert Matthews
Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992) (allegations may be stricken if matter bears no
possible relation to controversy). District courts have considerable discretion to strike
allegations under Rule 12(f). See Delta, 554 F.3d at 1141–42.
ANALYSIS
Defendants move to dismiss Ms. Marshbanks’ Complaint, except for Counts IX and X,
and strike her punitive damages claim, paragraph 77, and portions of paragraph 70. The Court
addresses each argument in turn.
I.

Count II – Monell Claim
In Count II, Ms. Marshbanks asserts a Monell claims against the City alleging that “the

unreasonable use of lethal force was proximately caused by the policies and practices of the City
of Calumet’s Police Department.” (Compl. ¶ 37.) See Monell v. Dep’t of Soc. Servs. of New
York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). As the Seventh Circuit teaches,
“Monell recognized that the premise behind a § 1983 action against a government body is the
allegation that official policy is responsible for the deprivation of rights.” Thomas v. Cook Cnty.
Sheriff’s Dep’t, 604 F.3d 293, 306 (7th Cir. 2010) (citation omitted) (emphasis in original); see
also Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011)) (“There is no
respondeat superior liability under § 1983; the Supreme Court ‘distinguish[es] acts of the
municipality from acts of employees of the municipality.’”) (citation omitted) (emphasis in
original). To establish liability against the City on a Monell claim, Ms. Marshbanks must show
that: (1) Mr. Chambers suffered a deprivation of a constitutional right, (2) as a result of either an
express municipal policy, widespread custom, or deliberate act of a decision-maker with final

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policymaking authority, that (3) proximately caused their constitutional injuries. See Ovadal v.
City of Madison, 416 F.3d 531, 535 (7th Cir. 2005); see also Obrycka v. City of Chi., No. 07 C
2372, 2012 WL 601810, at * 6 (N.D. Ill. Feb. 23, 2010).
Defendants contend that Ms. Marshbanks has not sufficiently pled a Monell claim
because she has pled mere conclusory allegations supported by only one other prior shooting.
(Mem. at 4-5.) The Court disagrees. Ms. Marshbanks has alleged that “widespread practices are
allowed to flourish because the City directly encourages and is thereby the moving force behind
the very type of misconduct at issue by failing to adequately train, supervise, and control its
officers and by failing to adequately punish and discipline prior instances of similar misconduct,
thus directly encouraging future abuses such as those affecting Plaintiff.” (Compl. ¶ 38.)
Notably, Ms. Marshbanks did not simply allege the existence of a practice, she offered a specific
example of another similar incident which occurred prior to officers shooting Mr. Chambers, and
which did not result in any training or discipline for the officers involved. Specifically, Ms.
Marshbanks alleges that officers shot and killed Stephon Watts “only months before” officers
killed Mr. Chambers. (Id. ¶¶ 25-30.) According to Ms. Marshbanks, the City failed to discipline
or train the officers as a result of the Watts shooting, thus furthering this conduct. (Id. ¶¶ 29-30.)
Ms. Marshbanks also alleges that the City “exhibited deliberate indifference to the problem,”
thereby allowing it “to exist and thrive.” (Id. ¶ 39.) Viewing the facts in the light most favorable
to Ms. Marshbanks, and making all reasonable inferences in her favor, these allegations pass the
plausibility test imposed by Iqbal and Twombly for a Monell claim of failure to train, supervise,
or control. See, e.g., Connick v. Thompson, 131 S. Ct. 1350, 1360, 179 L. Ed. 2d 417 (2011);
City of Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).

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II.

Count III – Conspiracy
In Count III, Ms. Marshbanks alleges that all the Defendants conspired to protect one

another from liability for Mr. Chambers death. Specifically, she alleges that they reached an
agreement and took certain overt steps, such as creating false reports of the shooting or failing to
prepare reports related to the shooting. (Compl. ¶¶ 42-45.) According to Ms. Marshbanks, “[a]s
a direct and proximate result of the illicit prior agreement [], [Mr. Chambers’] rights were
violated and he suffered injuries.” (Id. ¶ 47.) Defendants contend that the intra-corporate
conspiracy doctrine bars Ms. Marshbanks’ conspiracy claim.
The intra-corporate conspiracy doctrine precludes conspiracy claims against members of
the same entity acting within the scope of their authority. Payton v. Rush-Presbyterian-St.
Luke’s Med. Ctr., 184 F.3d 623, 632-33 (7th Cir. 1999); Wright v. Illinois Dept. of Children &
Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994) (applying the intra-corporate conspiracy
doctrine to public entities); Allen v. City of Chicago, 828 F. Supp. 543, 564 (N.D. Ill. 1993)
(applying the intra-corporate conspiracy doctrine to municipal corporations). “The policy behind
the doctrine is to preserve independent decision-making by business entities and their agents free
of the pressure that can be generated by allegations of conspiracy.” Tabor v. City of Chicago, 10
F. Supp. 2d 988, 994 (N.D. Ill. 1998).
Although the Seventh Circuit has explicitly recognized this doctrine regarding Section
1985 conspiracy claims, Travis v. Gary Comm. Mental Health Cntr., Inc., 921 F.2d 108, 109-11
(7th Cir. 1990), it has not addressed the issue of whether the doctrine applies to Section 1983
conspiracy claims, “and district courts in this Circuit are split on whether it does.” Drager v.
Village of Bellwood, No. 12 C 9569, 2013 WL 4501413, at *10 (N.D. Ill. Aug. 22, 2013); Doe v.
Board of Educ. of Hononegah Community High School Dist. No. 207, 833 F. Supp. 1366,

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1382 (N.D. Ill. 1993); Cromley v. Board of Ed. of Lockport Township High School Dist. 205,
699 F. Supp. 1283, 1291-92 (N.D. Ill. 1988). The Seventh Circuit also has allowed plaintiffs to
pursue Section 1983 conspiracy claims where all of the alleged conspirators were police officers
working for the same entity. See, e.g., Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir.
2012).
The Court need not determine whether the intra-corporate conspiracy doctrine applies to
Section 1983 conspiracy claims because Ms. Marshbanks has failed to sufficiently state a claim
for conspiracy. To establish Section 1983 liability through a conspiracy theory, a plaintiff must
demonstrate that: (1) individuals reached an understanding to deprive the plaintiff of his
constitutional rights, and (2) those individual were willful participants in joint activity. See
Lewis v. Mills, 677 F.3d 324, 333 (7th Cir. 2012). Ms. Marshbanks, however, offers only
conclusory allegations that all of the officers involved reached an agreement. (Compl. ¶ 44.)
This is not a circumstance where conclusory allegations are sufficient, such as where a court can
conclude that the conduct would have not occurred outside of a conspiracy. Contra Geinosky,
675 F.3d at 749. Ms. Marsbhanks also does not offer specific allegations against any officer, but
instead states that the officers either conspired to create false reports of the shooting and/or did
not prepare any reports. (Id. ¶ 46.) These allegations do not sufficiently put Defendants on
notice of the claims they face. She also has not alleged any particular constitutional right of
which the officers deprived Mr. Chambers. This is particularly troubling because the allegedly
conspiratorial conduct occurred after officers shot Mr. Chambers. Indeed, participation in a
constitutional deprivation is a prerequisite for individual liability under Section 1983. See
Pepper v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005). The Court, therefore, dismisses
Count III without prejudice.

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III.

Count V – Failure to Supervise
In Count V, Ms. Marshbanks alleges that Chief Gilmore and Lt. DiFiori failed to

supervise and control the officers, which resulted in Mr. Chambers’ death. The Defendants
argue that it is unclear whether Ms. Marshbanks asserts Count V against Chief Gilmore and Lt.
DiFiori in their official capacities or individual capacities. (Mem. at 8.) If Ms. Marshbanks
asserts Count V against these two officers in their official capacities, the claim is redundant as
the City of Calumet is a named defendant. See, e.g., Sow v. Fortville Police Dep’t, 636 F.3d 293,
300 (7th Cir. 2011) (“an official capacity suit is another way of pleading an action against an
entity of which the officer is an agent.”) (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105
S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Monell, 436 U.S. at 690 n. 55.)
According to Ms. Marshbanks, she asserts Count V under so-called “supervisory
liability.” (Resp. at 7-8.) “Section 1983 does not authorize ‘supervisory liability’.” Vining-El
v. Evans, 657 F.3d 591, 592 (7th Cir. 2011). For a supervisor to be liable under Section 1983,
the plaintiff must show that that the defendant-supervisor is “personally responsible for the
deprivation of the constitutional right.” Matthews v. City of East St. Louis, 675 F.3d 703, 708
(7th Cir. 2012) (citing Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)); see
also Paine v. Cason, 678 F.3d 500, 512 (7th Cir. 2012) (noting that a defendant officer could
only “be liable for what he did; there is no doctrine of supervisory liability for the errors of
subordinates”). “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.
(quotation omitted); see also T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (quotations
omitted). Ms. Marshbanks has not alleged that either Chief Gilmore or Lt. DiFiori had any
“personal involvement” in the shooting. Ms. Marshbanks merely alleges that these officers

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“exhibited a deliberate indifference . . . to the unconstitutional practices of Defendants, thereby
effectively ratifying it.” (Compl. ¶ 57.) Indeed, she has not even stated any facts indicating that
either Chief Gilmore or Lt. DiFiori were personally aware of or supervised officers involved
with Stephon Watts, which seems to be the action to which these officers allegedly turned a blind
eye or tacitly approved. Additionally, it is unclear to what specific “unconstitutional practices”
Ms. Marshbanks refers, as she includes no factual allegations in Count V to support this
statement. Even viewing the facts in the light most favorable to Ms. Marshbanks, she has not
provided sufficient notice to Defendants of this claim. The Court, therefore, dismisses Count V
without prejudice.
IV.

Count I – Excessive Force – and Count IV – Failure to Intervene
Defendants claim that Counts I and IV are unclear as to Chief Gilmore and Lt. DiFiori

because Ms. Marshbanks’ allegations refer to all named defendants collectively as “Defendants”
rather than specifying conduct by any particular officers. Specifically, Ms. Marshbanks alleges
that “Defendants” shot Mr. Chambers, yet also asserts a failure to supervise claim against Chief
Gilmore or Lt. DiFiori, indicating that they did not shoot Mr. Chambers. (Mem. at 10.) As
noted by the Defendants, the City also could not have shot Mr. Chambers, though the City would
be included in Ms. Marshbanks general use of the term “all Defendants.” (Id.) Rather than
disputing the Defendants’ argument, Ms. Marshbanks seeks “leave to file an Amended
Complaint to clarify the applicability of certain Counts to specific Defendants.” (R. 27, Reply at
8.) The Court, therefore, dismisses Counts I and IV against the City, Chief Gilmore and Lt.
DiFiori, without prejudice, and grants Ms. Marshbanks leave to amend.

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V.

Counts VI, VII, and VIII – Substantive State Law Claims
Defendants argue that Counts VI (intentional infliction of emotional distress), VII

(wrongful death), and VIII (survival) are similarly confusing and insufficiently pled because Ms.
Marshbanks alleges them against “all Defendants,” which includes the City who cannot be
directly liable for state law claims. (Mem. at 11.) Furthermore, she asserts claims against the
City under a theory of respondeat superior in Count IX, which therefore, makes Counts VI, VII,
and VIII against the City redundant. (Id.) The Court agrees.
Additionally, because Ms. Marshbanks’ allegations against Chief Gilmore and Lt. DiFiori
seem to relate to their failure to discipline officers after Ms. Chambers was shot rather than any
direct role in the shooting, she has not asserted a claim of intentional infliction of emotional
distress, wrongful death, or under the Survival Act against them. Significantly, Ms. Marshbanks
does not attempt to refute the Defendants’ arguments but instead seeks to amend her Complaint
to address these issues. (Resp. at 9.) The Court, therefore, dismisses Counts VI, VII, and VIII
without prejudice.
Additionally, Defendants move to strike paragraph 70 of Count VII (wrongful death)
which alleges:
As detailed above, Defendants, acting by and through its duly authorized agents,
breached this duty by willfully and wantonly committing one or more of the
following acts and/or omissions:
a. Fatally shooting Decedent without lawful justification,
b. Discharged their weapon in a crowded area without legal justification to do so.
c. Willfully and wantonly shot Decedent which led to his death.
d. Willfully and wantonly destroyed, changed, or altered evidence in an attempt to
cover-up the improper conduct leading to Decedent’s death.
According to Defendants, the allegations in subparagraphs (b) and (d) are immaterial and
impertinent because neither of these allegations relate to the reasons why Mr. Chambers died.

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(Mem. at 13.) Defendants contend that the Court should strike these subparagraphs as they are
prejudicial and only serve to confuse the relevant issues. (Id.) Ms. Marshbanks contends that
they show that Defendants acted with an utter disregard for the safety of others and breached
their duty to exercise due care. (Resp. at 8-9.) Because motions to strike are generally
disfavored, Williams v. Jader Fuel Co., 944 F.2d 1388, 1405-06 (7th Cir. 1991), and Defendants
have not met their burden of showing that the allegations are “so unrelated to plaintiff’s claim as
to be devoid of merit, unworthy of consideration, and unduly prejudicial,” the Court denies
Defendants’ request to strike these allegations. E & J Gallo Winery v. Morand Bros. Beverage
Co., 247 F. Supp. 2d 979, 982 (N.D. Ill. 2003).
VI.

Paragraph 77 of Count II – Survival Act
The Defendants argue that the Court should strike paragraph 77 because the Survival Act

does not provide the remedies sought in that paragraph, namely remedies for Mr. Chambers’ next
of kin’s injuries. (Mem. at 15); see Hall v. United Sec., No. 1–11–2158, 2012 WL 6962880, at
*2 (Ill. App. Ct. Mar. 16 2012) (“the Wrongful Death Act covers injuries suffered by the next of
kin because of and after the decedent’s death, whereas the Survival Act allows for the recovery
of damages for injury sustained by the deceased up to the time of death”) (citing Wyness v.
Armstrong World Industries, 131 Ill. 2d 403, 410 (1989)). Ms. Marshbanks does not oppose
Defendants’ motion to strike paragraph 77. The Court, therefore, grants the Defendants’ motion
as to this paragraph.
VII.

Punitive Damages against the City
Defendants also seek to strike Ms. Marshbanks’ claim for punitive damages against the

City because Section 2-102 of the Illinois Tort Immunity Act prohibits such damages. (Mot. at
13.) Ms. Marshbanks does not contest the Defendants’ apt application of the Illinois Tort

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Immunity Act, but instead seeks to file an amended complaint to address this issue. See Newport
v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981) (municipalities
are not subject to punitive damages in suits under 42 U.S.C. § 1983); Robinson v. City of Harvey,
Ill., 617 F.3d 915, 916 (7th Cir. 2010); Thompson v. Village of Monee, No. 12 C 5020, 2013 WL
3337801, at *26 (N.D. Ill. July 1, 2013). Also, as discussed above, because Ms. Marshbanks has
named the City as a defendant, claims against the City of Calumet officers in their official
capacities are redundant and unnecessary. See Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th
Cir. 2008) (“[a]n official capacity suit is tantamount to a claim against the government entity
itself.”) Ms. Marshbanks cannot recover punitive damages, therefore, by suing these officers in
their official capacity. The Court dismisses all claims against the officers in their official
capacities.
CONCLUSION
For the foregoing reasons, the Court grants in part the Defendants’ motion to dismiss.
The Court dismisses Counts I, III, IV, V, VI, VII, and VIII without prejudice. The Court also
grants the Defendants’ motion to strike as to paragraph 77 and Ms. Marshbanks’ claim for
punitive damages against the City. The Court also dismisses all claims against the officers in
their official capacities.

DATED: September 10, 2013
ENTERED

___________________________________
AMY J. ST. EVE
United States District Court Judge

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