Horton v. City Of Chicago et al

Filing 87

MEMORANDUM OPINION AND ORDER: Defendants' motions to dismiss [56, 57, 69] are denied, and Plaintiff is given until 11/13/2014 to file an amended complaint. Signed by the Honorable Robert M. Dow, Jr on 10/29/2014. Mailed notice(tbk, )

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

JARROD HORTON,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 13-cv-06865
Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Jarrod Horton filed this complaint against Defendants Kenneth Walker, Shaquila
Moore, the City of Chicago, the Chicago Housing Authority (“CHA”), Maverick Security, Inc.,
and H.J. Russell & Company for violations of 42 U.S.C. § 1983, battery, wrongful death, and
intentional infliction of emotional distress in connection with the alleged arrest and fatal shooting
of his brother Marlon Horton by Walker and Moore. Before the Court are H.J. Russell’s,
Maverick’s and Shaquila Moore’s motions to dismiss [56, 57, 69, respectively]. For the reasons
stated below, the Court denies Defendants’ motions and grants Plaintiff leave to amend his
complaint based on his appointment by the Circuit Court of Cook County as Independent
Administrator of his brother’s estate. Plaintiff is given until 11/13/2014 to file his amended
complaint.
I.

Background 1

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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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The SAC alleges that on or about September 7, 2013, Plaintiff’s brother, Marlon Horton,
entered a CHA residential building located at 1815 W. Monroe Street in Chicago. The building
was attended by two security guards that day—Walker and Moore. Walker and Moore, in turn,
were jointly employed by two businesses—H.J. Russell and Maverick.

H.J. Russell and

Maverick allegedly acted under color of state law, providing the CHA property management and
security services, respectively, at that building. The two companies are alleged to have provided
these services pursuant to a delegation of police power by the State of Illinois under 310 ILCS
10/8.1a and other laws.
According to the SAC, when Horton entered the building, Walker and Moore asked him
to leave. He left, at which point they arrested him without an arrest warrant, search warrant,
exigent circumstances, reasonable suspicion, consent, or probable cause. Walker then fatally
shot Horton. During the shooting, Moore failed to intervene, and instead actually aided and
supported Walker.
Walker and Moore allegedly acted pursuant to widespread practices at H.J. Russell and
Maverick, in which both companies failed “to adequately train and supervise [their] security
guards in the performance of their police-like duties” or “to punish and discipline prior instances
of similar misconduct.” SAC at ¶ 59. These failures led to “numerous instances of civil rights
violations by other security guards” and caused “other security guards to believe their actions
[would] never be scrutinized and, in that way, thereby directly encourag[ed] future abuses.” Id.
The SAC additionally alleges that Walker and Moore acted within the scope of their employment
or authorized agency with respect to both companies and that H.J. Russell and Maverick are
therefore liable for all their torts under the doctrine of respondeat superior. Id. at ¶ 64.

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Plaintiff filed this complaint against Walker and Moore for false arrest (Count I), use of
excessive force (Count II), and conspiracy (Count IV) in violation of 42 U.S.C. § 1983 as well as
intentional infliction of emotional distress (Count V), wrongful death under the Illinois Wrongful
Death Act (Count VI), and battery (Count VII); against Moore for failure to intervene in
violation of § 1983 (Count III); against the City of Chicago and the Chicago Housing Authority
(“CHA”) for policies and practices in violation of § 1983 (Count VIII); against H.J. Russell and
Maverick for practices in violation of § 1983 (Count IX) and for the torts allegedly committed by
their agents, Walker and Moore (Count XI); and against the City of Chicago and the CHA for
indemnification of Walker and Moore (Count X). Plaintiff alleges that he is the “Special
Administrator of the Estate of Marlon Horton.” SAC at ¶ 1.
H.J. Russell and Maverick move to dismiss Counts IX and XI under Federal Rule of Civil
Procedure 12(b)(6). Moore, joined by the CHA, the City of Chicago and Walker, move to
dismiss Count VI under Federal Rule of Procedure 12(b)(1).
II.

Legal Standard
A motion to dismiss pursuant to rule 12(b)(6) tests the sufficiency of the complaint, not

the merits of the case. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To
survive a Rule 12(b)(6) motion to dismiss, the complaint 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,”
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 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.

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2007) (quoting Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has
not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Fed. R. Civ. P. 8(a)(2)). For a claim to be plausible, the plaintiff must put forth
enough “facts to raise a reasonable expectation that discovery will reveal evidence” supporting
the plaintiff’s allegations. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). 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.”).
Turning to Moore’s argument that Plaintiff lacks standing, there are two types of rule
12(b)(1) challenges—factual and facial—and they have a “critical difference.” Apex Digital Inc.
v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). When a defendant argues that “the
plaintiffs’ complaints, even if true, were purportedly insufficient to establish injury-in-fact,” the
challenge is a facial one. Id. at 443-44. “Facial challenges require only that the court look to the
complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction.”
Id. at 443 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).

Factual

challenges, however, lie “where ‘the complaint is formally sufficient but the contention is that
there is in fact no subject matter jurisdiction.’” Id. (citing United Phosphorus, Ltd. v. Angus
Chem. Co., 332 F.3d 942, 946 (7th Cir. 2003)). Courts may look beyond the complaint only
when a defendant brings a factual attack against jurisdiction. Id.
III.

Analysis
A.

H.J. Russell and Maverick
1.

Count IX: Monell Claim

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“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“Private corporations acting under color of state law may, like municipalities, be held liable for
injuries resulting from their policies and practices.” Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 675 (7th Cir. 2012) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 690–91 (1978); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir.
2009)). Private corporations act under color of state law in two situations. In the first, “a state
effectively directs, controls, or encourages the actions of a private party.” Wade v. Byles, 83
F.3d 902, 905 (7th Cir. 1996). In the second, “a state delegates a public function to a private
entity,” and that function is “traditionally the exclusive prerogative of the State.” Id. (citations
and quotations omitted).
To recover against a municipal or corporate defendant under § 1983, the plaintiff must
show that the “injury was the result of the municipality’s or corporation’s official policy or
custom.” Rice ex rel. Rice, 675 F.3d at 675 (citations omitted). A plaintiff may demonstrate an
official policy or custom through three means: first, “an express policy,” second, “a widespread
practice which, although unwritten, is so entrenched and well-known as to carry the force of
policy,” or, third, “through the actions of an individual who possesses the authority to make final
policy decisions on behalf of the municipality or corporation.” Id. (citations omitted). Where a
plaintiff alleges an official policy or custom of inadequate training, the plaintiff must allege that
“the failure to train amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). In
addition to showing a policy or custom, a plaintiff must show a “direct causal connection

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between the policy or practice and his injury, in other words that the policy or custom was the
moving force [behind] the constitutional violation.” Rice ex rel. Rice, 675 F.3d at 675 (internal
quotations omitted).
Plaintiff’s SAC pleads the second theory of an official policy or custom—that is, “a
widespread practice which, although unwritten, is so entrenched and well-known as to carry the
force of policy.” Id. H.J. Russell and Maverick move for dismissal under Rule 12(b)(6), arguing
that the SAC’s factual allegations showing a widespread practice as well as a connection
between that practice and the constitutional injury are insufficient.

The SAC’s factual

allegations regarding both are sufficient—albeit barely. Specifically, the SAC factually supports
its allegation of a policy or custom by stating that H.J. Russell and Maverick had a widespread
custom in which they specifically “failed to adequately train and supervise” their security guards
and in which they “failed punish and discipline prior instances of similar misconduct.” SAC at
¶ 59. The SAC factually supports its allegation of a causal connection by stating that these
failures led to “numerous instances of civil rights violations by other security guards” and caused
“other security guards to believe their actions will never be scrutinized” with the result of
“directly encouraging future abuses,” including the alleged injury in question. Discovery may
belie Plaintiff’s allegations, but in the meantime, the alleged facts “raise a reasonable expectation
that discovery will reveal evidence.” Brooks, 578 F.3d at 581. Moreover, the complaint gives
H.J. Russell and Maverick “fair notice of what the * * * claim is” and what type of widespread
practice allegedly caused the constitutional injury. Bell Atl. Corp., 550 U.S. at 555 (quotation
omitted).
Second, H.J. Russell and Maverick argue that the SAC alleges insufficient facts showing
that the two companies acted under color of state law. Again, although Plaintiff’s allegations are

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not robust, they are sufficient to survive a motion to dismiss. Of the two factual scenarios in
which a private entity acts under color of state law, the SAC alleges the second, in which the
state delegates a public function to a private entity. Specifically, the SAC alleges that the state
delegated its police power to Defendants through 310 ILCS 10/8.1a, which grants the CHA
police power over its property, as well as other laws and ordinances. It further alleges that the
CHA, in turn, delegated this police power to H.J. Russell in its role as property manager and to
Maverick as a security company. Defendants argue that Plaintiff should have pled more facts
establishing the precise nature of the delegation of police power, but Plaintiff may need access to
discovery to obtain these facts, which may be contained in Defendants’ service agreements with
the CHA.

For purposes of deciding a motion to dismiss, Plaintiff’s allegations provide

Defendants with “fair notice of what the * * * claim is,” Bell Atl. Corp., 550 U.S. at 555
(quotation omitted), and are sufficient to “raise a reasonable expectation that discovery will
reveal evidence” supporting Plaintiff's allegations of this widespread practice. Brooks, 578 F.3d
at 581. If discovery yields nothing to support Plaintiff’s claims against Russell and/or Maverick,
those Defendants may pursue summary judgment at any time.
2.

Count XI: Respondeat Superior Liability

H.J. Russell and Maverick also move to dismiss Count XI, in which Plaintiff alleges that
the two companies are liable for “all torts” committed by Walker and Moore under a theory of
respondeat superior. The parties agree that respondeat superior liability does not exist under §
1983 and, therefore, that Count XI cannot validly state a claim for the two companies’ vicarious
liability for their employees’ alleged § 1983 violations. 2 Plaintiff’s response brief states that

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In Shields v. Illinois Dep't of Corr., 746 F.3d 782 (7th Cir. 2014), the Seventh Circuit suggested that it
may overrule precedents establishing that private corporations cannot be found liable for § 1983
violations under a theory of respondeat superior. However, as long as those precedents remain good law,

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Count XI thus applies only to Illinois common law torts. Because both parties agree that under
existing law Count XI can only state a claim for state torts, the Court interprets the SAC
accordingly.
In Illinois, an employer can be vicariously liable for torts committed by an employee in
the scope of the employment. Wright v. City of Danville, 174 Ill. 2d 391, 405 (1996). Courts use
three criteria to determine whether an employee has committed a tort in the scope of the
employment: first, whether the tort is “of the kind he is employed to perform,” second, whether
“it occurs substantially within the authorized time and space limits,” and, third, whether “it is
actuated, at least in part, by a purpose to serve the master.” Pyne v. Witmer, 129 Ill. 2d 351, 360
(1989) (citation omitted); Atkinson v. Affronti, 369 Ill. App. 3d 828, 835 (2006) (citation
omitted).
H.J. Russell and Maverick move to dismiss Plaintiff’s claim that they are vicariously
liable for Walker and Moore’s common law torts, arguing that Plaintiff has pled insufficient facts
to make this claim plausible. Again, Plaintiff walks the fine line separating a speculative and a
plausible claim, barely pleading sufficient facts to survive this motion to dismiss. The SAC
factually supports its allegation of an employment or agency relationship by stating that H.J.
Russell and Maverick are corporations that jointly employed Walker and Moore as security
guards. The SAC factually supports its allegation that Defendants’ two employees committed
torts by stating that Walker and Moore committed battery, intentional infliction of emotional
distress, and wrongful death on September 7, 2013 when they arrested Horton, when Walker shot
Horton, and when Moore failed to intervene. Plaintiff further alleges facts corresponding with
two of the three criteria that courts use to determine whether an employee acted in the scope of

the Court is bound to applythe current rule that respondeat superior liability does not exist under § 1983,
even where a corporate defendant acts under color of state law.

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employment. With respect to the first criteria—whether the allegedly tortious actions were “of
the kind [they were] employed to perform”—the SAC alleges that Walker and Moore arrested
and shot Horton in connection with their employment as security guards. With respect to the
second criteria—whether the alleged torts occurred “substantially within the authorized time and
space limits”—the SAC alleges that the torts occurred while Walker and Moore were working at
a location where the two companies provided security guard services.
H.J. Russell and Maverick also move for dismissal on the ground that principals cannot
be held liable for the intentional torts of their agents. Illinois law indicates otherwise at least in
some factual scenarios. An employer may be vicariously liable for an intentional tort “motivated
in part by an intent to serve the employer’s purpose and in part by the employee’s venting of
emotion,” but an employer is not vicariously liable for a tort “committed solely for the
employee’s own benefit.” Maras v. Milestone, Inc., 348 Ill. App. 3d 1004, 1008 (Ill. App. Ct.
2004) (citing Sunseri v. Puccia, 97 Ill. App. 3d 488, 493 (Ill. App. Ct. 1981); Webb by Harris v.
Jewel Cos. Inc., 137 Ill. App. 3d 1004, 1006 (Ill. App. Ct. 1985)). “The outrageousness of an act
may be evidence that the employee has gone beyond the scope of his or her employment, but it is
not conclusive.” Maras, 348 Ill. App. 3d at 1008 (citing Sunseri, 97 Ill. App. 3d at 493). Lastly,
an employer’s liability for an intentional tort depends on “whether the act was a predictable
outgrowth of acts the employer authorized the employee to perform.” Maras, 348 Ill. App. 3d at
1008 (citing Rubin v. Yellow Cab Co., 154 Ill. App. 3d 336, 339 (1987); RESTATEMENT
(SECOND) OF AGENCY § 228(1)(d) (1958)). In view of the context-based inquiry mandated under
the case law, it would be premature to dismiss Count XI prior to discovery that may shed light on
the circumstances surrounding the shooting incident.

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Third, H.J. Russell and Maverick argue that Count XI fails because it does not
incorporate previous counts’ allegations that the employees committed the underlying torts,
arguing that there is no liability under respondeat superior in the absence of an underlying tort.
This argument considers Plaintiff’s pleading too formalistically. The Court does not read each
count in isolation, looking to previous allegations only where a count expressly incorporates
them. Rather, the Court determines whether a complaint states a claim by reading the complaint
as a whole. See Atkins, 631 F.3d at 832; cf. Scott, 195 F.3d at 952 (“Whether a complaint
provides notice, however, is determined by looking at the complaint as a whole”). When read
holistically, the SAC alleges both the underlying torts of the employees and the vicarious
liability of the employers; accordingly, the SAC states a claim.
B.

Shaquila Moore

Moore, joined by the CHA, the City of Chicago and Walker, 3 moves for dismissal under
Federal Rule of Civil Procedure Rule 12(b)(1), arguing that Plaintiff lacks standing to sue under
the Illinois Wrongful Death Act and that the Court therefore lacks jurisdiction. 4
The Illinois Wrongful Death Act permits a plaintiff to bring a claim where a person’s
death is caused by wrongful act, neglect or default. 740 ILCS 180/1. “Every such action shall be
brought by and in the names of the personal representatives of such deceased person, and, except
as otherwise hereinafter provided, the amount recovered in every such action shall be for the

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The Court previously granted motions by the CHA [72] as well as the City of Chicago and Moore [73]
to join Moore’s motion to dismiss. The SAC alleges only that Walker and Moore violated the Illinois
Wrongful Death Act; it does not assert a wrongful death claim against the CHA or the City. Presumably,
the CHA and the City join Moore’s motion because they may have a duty to indemnify an employee held
liable for wrongful death. Because the joining parties present the same arguments as Moore, the Court’s
analysis of Moore’s motion applies equally to their arguments.
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Moore also argues that Plaintiff lacks standing under the Illinois Survival Act. The SAC only alleges a
violation of the Illinois Wrongful Death Act. Accordingly, the Court does not consider this argument.

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exclusive benefit of the surviving spouse and next of kin of such deceased person.” 740 ILCS
180/2. Where the only asset of the deceased’s estate is the wrongful death claim itself, a court
may appoint a “special administrator” to serve as the personal representative. 740 ILCS 180/2.1.
The Act requires one personal representative to bring a single action on behalf of all the
surviving spouse and next of kin to avoid multiple lawsuits. Pruitt v. Jockisch, 228 Ill. App. 3d
295, 298 (1992). The personal representative thus acts as a “nominal party to [the] action,
effectively filing suit as a statutory trustee on behalf of the surviving spouse and next of kin, who
are the true parties in interest.” Glenn v. Johnson, 198 Ill. 2d 575, 583 (2002) (citation omitted).
Where the person identified as the personal representative in the complaint has not yet been
appointed as the administrator, there is no proper plaintiff. Nagel v. Inman, 402 Ill. App. 3d 766,
770 (2010).
First, Moore facially challenges Plaintiff’s standing, arguing that the SAC fails to allege
that Plaintiff was a court-appointed executor or administrator. In evaluating this facial challenge,
the court looks only at the allegations in the complaint. Apex Digital Inc., 572 F.3d at 443.
Because the opening line of the SAC describes that Plaintiff as the “Special Administrator of the
Estate of Marlon Horton,” the SAC survives.
Second, the CHA argues that Plaintiff factually lacks standing; it contends that a search
of the records of the Circuit Court of Cook County, Illinois revealed at the time of the briefing on
this motion that Plaintiff has not been appointed administrator of Jarrod Horton’s estate. In
evaluating this factual challenge, the Court looks beyond the complaint, id., and notes that
Plaintiff’s response motion states that he was formally appointed Independent Administrator of
his brother’s estate on July 22, 2014, approximately one month after the SAC was filed on June

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25, 2014. Attached to his motion is an order from the probate division of the Circuit Court of
Cook County appointing him the Independent Administrator of Jarrod Horton’s estate.
Because Plaintiff was appointed an administrator after he filed his complaint, he has now
cured a defect in his prior pleading. As the cases cited in Plaintiff’s response brief [80] indicate,
Illinois law is rather forgiving in regard to the timing by which a plaintiff in a wrongful death
action is appointed to be administrator of the estate of the deceased. Both state and federal
courts in Illinois have recognized that so long as the action itself is filed within the applicable
limitations period and there is no prejudice to the defendants, the amendment of the complaint to
recognize the appointment of the administrator relates back to the filing of the original
complaint. See, e.g., Jablonski v. Rothe, 287 Ill. App. 3d 752, 754-57 (2d Dist. 1997); Hardimon
v. Carle Clinic Ass’n, 272 Ill. App. 3d 117, 118-23 (4th Dist. 1995); Jefferson v. Davis, 1990
U.S. Dist. LEXIS 4682, at 1-2 (N.D. Ill. Apr. 19, 1990). In view of these cases, Plaintiff is given
until 11/13/2014 to file an amended complaint recognizing his appointment as Independent
Administrator of his brother’s estate.
IV.

Conclusion
For the reasons stated above, Defendants’ motions to dismiss [56, 57, 69] are denied, and

Plaintiff is given until 11/13/2014 to file an amended complaint.

Dated: October 29, 2014
____________________________
Robert M. Dow, Jr.
United States District Judge

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