BARROW v. CONLAN#13613 et al

Filing 25

ORDER Signed by the Honorable Amy J. St. Eve on 4/21/2014: The Court grants Defendant Officers' motion to dismiss Counts I and II with prejudice and denies Defendant Officers' motion to dismiss Count IV 10 . The Court grants Defendant City of Chicago's motion to dismiss Count III without prejudice 12 . The Court grants Plaintiff leave to amend Count III in an Amended Complaint in accordance with this Order by no later than 5/19/14. [See Order for further details.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN BARROW,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 13 C 8779
Judge Amy J. St. Eve

ORDER
The Court grants Defendant Officers’ motion to dismiss Counts I and II with prejudice
and denies Defendant Officers’ motion to dismiss Count IV [10]. The Court grants Defendant
City of Chicago’s motion to dismiss Count III without prejudice [12]. The Court grants Plaintiff
leave to amend Count III in an Amended Complaint in accordance with this Order by no later
than May 19, 2014.
STATEMENT
On December 9, 2013, Plaintiff John Barrow filed the present five-count Complaint
against Defendants City of Chicago and certain individual Chicago police officers alleging that
Defendants violated his constitutional rights. See 42 U.S.C. § 1983. Before the Court are
Defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, the Court grants Defendant Officers’ motion to dismiss Counts I and II with
prejudice and denies Defendant Officers’ motion to dismiss Count IV. Further, the Court grants
Defendant City of Chicago’s motion to dismiss Count III without prejudice. The Court grants
Plaintiff leave to file an Amended Complaint in accordance with this Order by no later than May
19, 2014.
LEGAL STANDARD1
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief

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Plaintiff sets forth the wrong legal standard for a Rule 12(b)(6) motion to dismiss using
verbiage similar to the “no set of facts” language that originated in Conley v. Gibson, 355 U.S.
41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In 2007, the United States Supreme Court
unequivocally rejected this language when retooling the federal pleading standards. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“after
puzzling the profession for 50 years, this famous observation has earned its retirement”).
Indeed, throughout his legal memorandum, Plaintiff relies on pre-Twombly case law to support
his arguments that he has satisfied the federal pleading standards.

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 reviewing the
sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts
in the complaint as true.” Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013).
Also, a “motion under Rule 12(b)(6) can be based only on the complaint itself, documents
attached to the complaint, documents that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743,
745 n.1 (7th Cir. 2012). “[A] plaintiff is not required to plead facts in the complaint to anticipate
and defeat affirmative defenses,” but “when a plaintiff’s complaint nonetheless sets out all of the
elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Independent
Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir. 2012).
BACKGROUND
On November 23, 2011, around 8 p.m., Plaintiff, who was an employee of Reliance
Security Services (“Reliance”), had just completed his shift working as a security officer at a
Foot Locker store on the south side of Chicago. (R. 1, Compl. ¶ 7.) Sometime after 10:00 p.m.
on that same date, Reliance dispatched Plaintiff to a facility named “Cold Storage” located in
McCook, Illinois to perform armed security services. (Id. ¶ 8.) Reliance advised Plaintiff that he
was to cover the 11:00 p.m. to 7:00 a.m. night shift. (Id.) While en route to Cold Storage,
Defendant Officers stopped Plaintiff although he had not committed any traffic violations. (Id. ¶
9.) At that time, Defendant Officers demanded that Plaintiff produce his driver’s license, proof
of insurance, and registration. (Id. ¶ 10.) Plaintiff alleges that he complied with Defendant
Officers’ commands and did not exhibit suspicious or threatening behavior. (Id.)
Further, Plaintiff alleges that Defendant Officers then ordered him out of the car at which
time they unlawfully searched him and his car without justification or probable cause. (Id. ¶ 11.)
Upon exiting his vehicle, Plaintiff informed Defendant Officers that he was a security guard, that
he was on his way to work, and that he lawfully had a firearm in his possession. (Id. ¶ 13.)
According to Plaintiff, Defendant Officers ignored his explanation and stated that they “locked
up” security guards solely for the inconvenience it causes them and that they know the case will
“be tossed out.” (Id. ¶ 14.) Defendant Officers then arrested Plaintiff on the criminal charge of
Aggravated Unlawful Use of a Weapon (“AUUW”). (Id. ¶ 15.) Plaintiff, however, maintains
that as a professional security guard he has completed the requisite training courses and at all
relevant times he was licensed and authorized to carry his firearm in Illinois. (Id. ¶ 12.)
Moreover, at the time of his arrest, Plaintiff alleges that he was in possession of documentation
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attesting to the same, including but not limited to, his Firearm Owners Identification card, his
Permanent Employee Registration card, his Fire Arm Control card, and his Reliance Security
Services Employee card. (Id.) Plaintiff asserts that he produced these documents to Defendant
Officers prior to his arrest. (Id.)
After arresting Plaintiff, Defendant Officers transported him to jail. (Id. ¶ 16.) Plaintiff
further alleges that he had to pay bail to be released while awaiting trial and was forced to hire
an attorney to defend against false charges. (Id.) Plaintiff’s car was towed and stored at
Plaintiff’s expense. (Id.) Also, Reliance fired Plaintiff from his job due to his inability to work.
(Id.) Over the next several months, Plaintiff was forced to return to Cook County Circuit Court
on numerous occasions. (Id. ¶ 17.) Each time Plaintiff appeared for the criminal case, he was
informed that the court had to continue his case because the prosecution was not ready to
proceed. (Id.) After several months, Plaintiff communicated to the Circuit Court that he was
legally entitled to carry a firearm on the day of his arrest and that he had in the paperwork to
prove it at that time. (Id. ¶ 18.) According to Plaintiff, the Circuit Court dismissed the weapons
charges in a manner indicative of Plaintiff’s innocence. (Id.)
In his Complaint, Plaintiff alleges the following claims: (1) a Fourth Amendment false
arrest claim against Defendant Officers (Count I); (2) a Fourth Amendment unreasonable seizure
claim against Defendant Officers (Count II); (3) a claim pursuant to Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against the City of Chicago (Count
III); (4) a Fourteenth Amendment due process claim based on his liberty interest in his
profession against all Defendants (Count IV); and (5) and an indemnification claim against the
City of Chicago pursuant to 745 ILCS 10/9-102 (Count V).
ANALYSIS
I.

Fourth Amendment Claims — Counts I and II

In Count I, Plaintiff brings a Fourth Amendment false arrest claim, and in Count II, he
alleges a Fourth Amendment unreasonable seizure claim, which is, in essence, a claim for false
arrest. See Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 655 (7th Cir. 2012) (“‘False
arrest’ is shorthand for an unreasonable seizure prohibited by the Fourth Amendment.”). Section
1983 claims brought in Illinois have a two-year limitations period. See Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). “[A] § 1983 claim seeking damages for a false arrest in violation
of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at
the time the claimant becomes detained pursuant to legal process.” Wallace v. Kato, 549 U.S.
384, 397, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). The Wallace Court gives examples of being
“detained pursuant to legal process,” including being bound over by a magistrate or arraigned on
charges. See id. at 389-90.
In his Complaint, Plaintiff alleges that Defendant Officers falsely arrested him on
November 23, 2011 without a warrant. The state court docket shows that on November 24,

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2011, a judge found probable cause to detain Plaintiff and set Plaintiff’s bail.2 See Gerstein v.
Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (“the Fourth Amendment requires
a judicial determination of probable cause as a prerequisite to extended restraint of liberty
following arrest.”). The docket also reveals that the Circuit Court arraigned Plaintiff on January
23, 2012.
The parties dispute what date Plaintiff’s Fourth Amendment false arrest claims accrued.
Defendants argue that Plaintiff’s claims accrued the day the state court judge found probable
cause to detain Plaintiff pursuant to Gerstein, which was November 24, 2011. Plaintiff, on the
other hand, argues that his Fourth Amendment false arrest claims did not accrue until the Circuit
Court arraigned him on January 23, 2012, which is within the two-year limitations period.
Plaintiff appears to be arguing that the state court’s Gerstein hearing did not provide “legal
process” as envisioned by Wallace, and thus his Fourth Amendment claim did not accrue until
the Circuit Court arraigned him.
Plaintiff does not support his argument with any pertinent legal authority. Indeed, the
Seventh Circuit has yet to address this particular issue, although the Tenth Circuit and a district
court in the Northern District of Illinois have both concluded that being detained following a
Gerstein hearing is detention pursuant to legal process within the meaning of Wallace. See
Young v. Davis, 554 F.3d 1254, 1257 (10th Cir. 2009); Pope v. City of Chicago, No. 08 C 4715,
2009 WL 811625, at *2 (N.D. Ill. Mar. 24, 2009). In particular, the Tenth Circuit reasoned that
“[a]lthough a probable cause determination by a judicial officer was not given as one of the
examples of legal process in Wallace, the Court was not providing a complete list of situations
that could constitute the initiation of legal process.” Young, 554 F.3d at 1257. Indeed, as the
Seventh Circuit teaches, “a false imprisonment ends, and the claim accrues when [a plaintiff] is
held pursuant to a warrant or other judicially issued process.” National Cas. Co. v. McFatridge,
604 F.3d 335, 344 (7th Cir. 2010). As such, it stands to reason that if an arrest made pursuant to
a warrant supported by probable cause provides legal process, then a judicial determination of
probable cause at a Gerstein hearing after a warrantless arrest equally provides legal process.
See Gerstein, 420 U.S. at 126 (“the Fourth Amendment requires a timely judicial determination
of probable cause as a prerequisite to detention”); Snodderly v. R.U.F.F. Drug Enforcement Task
Force, 239 F.3d 892, 899 (7th Cir. 2001) (“The issuance of an arrest warrant is an act of legal
process that signals the beginning of a prosecution.”).
As such, Plaintiff’s false arrest claim accrued on November 24, 2011 when the state court
found probable cause and Plaintiff filed the present lawsuit over two years later on December 9,
2013. Therefore, his false arrest claims are untimely. See Brooks v. City of Chicago, 564 F.3d
830, 832 (7th Cir. 2009); Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008). Because

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Defendant Officers attach the docket of Plaintiff’s criminal case in the Circuit Court of
Cook County to their Rule 12(b)(6) motion to dismiss. The Court takes judicial notice of the
state court’s docket. See In re Salem, 465 F.3d 767, 771 (7th Cir. 2006) (courts may take
judicial notice of court dockets and opinions).
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Plaintiff’s Fourth Amendment false arrest claims as alleged in Counts I and II are untimely, the
Court dismisses Counts I and II with prejudice.
II.

Fourteenth Amendment Due Process Allegations — Count II

Along with his Fourth Amendment unreasonable seizure claim, in Count II, Plaintiff also
alleges that Defendant Officers violated his Fourteenth Amendment due process rights by
making statements that were false and that Defendant Officers fabricated evidence. See Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In his legal memorandum,
Plaintiff argues that this fabricated evidence caused the prosecuting attorney to continue legal
proceedings against him.
Although knowingly using perjured testimony to convict a plaintiff is a violation of a
plaintiff’s due process right to a fair trial and failing to disclose a false statement underlying a
criminal charge violates Brady, see Fields v. Wharrie, 740 F.3d 1107, 1117 (7th Cir. 2014), here
the Circuit Court of Cook County dismissed the criminal charges against Plaintiff via a nolle
prosequi order. As such, Plaintiff never went to trial. Under these circumstances, there is no
basis for any such due process or Brady claims. See Ray v. City of Chicago, 629 F.3d 660, 664
(7th Cir. 2011); Garcia v. City of Chicago, 24 F.3d 966, 971-72 (7th Cir. 1994); Cairel v.
Alderden, 09 C 1878, 2014 WL 916364, at *7 (N.D. Ill. Mar. 6, 2014); Jones v. City of Chicago,
No. 08 C 3591, 2011 WL 1898243, at *3 (N.D. Ill. May 18, 2011). Therefore, Plaintiff cannot
sustain a due process claim based on these allegations.
II.

Monell Claim — Count III

In its motion to dismiss, the City argues that Plaintiff has not sufficiently alleged his
Monell claim under the federal pleading standards. To establish liability against Chicago,
Plaintiff “must show the existence of an ‘official policy’ or other governmental custom that not
only causes but is the ‘moving force’ behind the deprivation of constitutional rights.” Teesdale
v. City of Chicago, 690 F.3d 829, 833 (7th Cir. 2012). Plaintiff can demonstrate this requirement
through: (1) an actual official policy; (2) a practice or custom that, although not officially
authorized, is widespread and well-established; or (3) a deliberate act from an Evanston
employee with final policy-making authority. See Gonzalez, 671 F.3d at 664.
Accepting Plaintiff’s well-pleaded facts as true, Plaintiff has failed to provide “enough
details about the subject-matter of the case to present a story that holds together” as it relates to a
widespread practice or custom. See Engel v. Buchan, 710 F.3d 698, 709 (7th Cir. 2013) (citation
omitted). In particular, Plaintiff’s Monell allegations consist of the following:
The City Of Chicago has a policy, practice and custom [of] failing to
adequately train and/or directing its personnel in a fashion that caused the
Defendant Officers to ignore and dishonor “exemptions” to “AUUW”
prohibitions as stated in the Illinois Compiled Statutes.

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Plaintiff has a constitutional right to work and bear firearms; the City Of
Chicago has a policy, practice, custom and scheme that undermines and “chills”
said rights by falsely arresting and maliciously prosecuting law abiding gun
owners.
These policies, practices, and customs directly and proximately caused the
constitutional violations and injuries to Plaintiff, thereby making them directly
chargeable to the City Of Chicago.
(Compl. ¶¶ 34-36.)
Although Plaintiff sets forth general allegations for a failure to train or supervise claim
pursuant to City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989), Plaintiff’s bare-boned allegations do not supply enough facts to put the City on notice of
his Monell claim and the grounds upon which it rests. See Twombly, 550 U.S. at 555. Moreover,
Plaintiff throws in language commonly used in First Amendment cases, appears to mention
Second Amendment protections, and states that he has a constitutional right to work, although in
other parts of his Complaint he alleges that he has a liberty interest in his work. In short,
Plaintiff’s allegations are confusing. The Court therefore grants the City’s motion to dismiss
Plaintiff’s Monell claim as alleged in Count III without prejudice and grants Plaintiff leave to file
an amended Monell claim with counsel’s Rule 11 obligations in mind.
III.

Due Process Claim — Count IV

In Count IV of his Complaint, Plaintiff alleges that he has both a protected liberty and
property interest in his employment and that Defendant Officers’ misconduct denied him his
constitutionally protected employment interest. As the United States Supreme Court teaches, “to
determine whether due process requirements apply in the first place” courts “must look to see if
the interest is within the Fourteenth Amendment’s protection of liberty and property.” Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S. Ct. 2701, 33 L. Ed. 2d 548
(1972). A protected property interest is a legitimate claim of entitlement — not defined by the
Constitution — but “by existing rules or understandings that stem from an independent source
such as state law.” Id. at 577; see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,
756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). Fundamental liberty interests include bodily
integrity, the right to marry, marital privacy, and the right to have children, to name a few. See
Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).
In his response brief, Plaintiff does not discuss how his employment is a property interest
nor does he point to an independent source, like state law, to establish a basis for his alleged
property interest. See, e.g., Harbaugh v. Board of Educ. of City of Chicago, 716 F.3d 983, 986
(7th Cir. 2013) (under Illinois School Code, tenured teacher has protectible property interest in
employment). Instead, he asserts that he has a liberty interest in his employment citing Seventh
Circuit case law which holds that the “concept of liberty protected by the due process clause has
long included occupational liberty — ‘the liberty to follow a trade, profession, or other calling.’”
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Wroblewski v. City of Washburn, 965 F.2d 452, 455 (7th Cir. 1992) (quoting Lawson v. Sheriff of
Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir. 1984)). The Wroblewski decision further
explains that “[i]t is the liberty to pursue a calling or occupation, and not the right to a specific
job, that is secured by the Fourteenth Amendment.” Id. at 455.
Here, accepting the allegations as true, Plaintiff alleges that Defendant Officers’
misconduct infringed upon his ability to work as a security guard, which is a profession, and not
a particular job. See id. at 457 (occupational liberty can be basis for substantive due process
claim). Thus, under the federal pleading standards, Plaintiff has alleged sufficient facts to
support his due process claim as alleged in Count IV. See Iqbal, 556 U.S. at 678 (“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.”). Therefore, the
Court denies Defendants’ motion to dismiss Count IV.
IV.

State Law Claims
A.

Intentional Infliction of Emotional Distress

In his response brief, Plaintiff argues that his intentional infliction of emotional distress
(“IIED”) claim is not time-barred. Plaintiff, however, did not allege an IIED claim in his
Complaint. Even if he had, Plaintiff’s IIED claim against Defendant Officers would be timebarred pursuant to the Illinois Local Government and Governmental Employees Tort Immunity
Act one year limitations period. See 745 ILCS 10/8–1; see also Evans v. City of Chicago, 434
F.3d 916, 934 (7th Cir. 2006), overruled on other grounds, Hill v. Tangherlini, 724 F.3d 965,
967-68 (7th Cir. 2013)). Under Illinois law, “a claim of intentional infliction of emotional
distress in the course of arrest and prosecution accrues on the date of the arrest.” Bridewell v.
Eberle, 730 F.3d 672, 678 (7th Cir. 2013). Here, Plaintiff alleges that Defendant Officers
arrested him on November 23, 2011 and he filed the present lawsuit on December 9, 2013,
therefore, Plaintiff’s IIED claim is untimely.
In his response brief, Plaintiff cites a handful of federal district court cases in support of
his argument that his IIED claim did not accrue until his state criminal proceedings terminated.
These district court cases are not controlling, especially in light of the Seventh Circuit’s 2013
decision that “a claim of intentional infliction of emotional distress in the course of arrest and
prosecution accrues on the date of the arrest.” Bridewell, 730 F.3d at 678. Indeed, recent district
court cases acknowledge Bridewell’s holding. See, e.g., Cairel v. Alderden, No. 09 C 1878,
2014 WL 916364, at *10 (N.D. Ill. Mar. 6, 2014).
Moreover, any argument that Plaintiff’s IIED claim is a continuing tort or violation is
misplaced in light of the Seventh Circuit’s Bridewell decision. See id. at 678 (“[t]he idea that
failing to reverse the ongoing effects of a tort restarts the period of limitations has no support in
Illinois law — or in federal law either.”); see also United States v. Midwest Generation, LLC,
720 F.3d 644, 648 (7th Cir. 2013) (“enduring consequences of acts that precede the statute of
limitations are not independently wrongful”).
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B.

Malicious Prosecution

Similarly, in their motion to dismiss, Defendant Officers argue that even though Plaintiff
did not allege a state law malicious prosecution claim in his Complaint, any such claim against
them would be untimely. Plaintiff does not respond or dispute Defendant Officers’ malicious
prosecution arguments, and thus Plaintiff has abandoned this claim. See Steen v. Myers, 486
F.3d 1017, 1020 (7th Cir. 2007) (absence of discussion amounts to abandonment of claims).
Therefore, there is no pending malicious prosecution claim in this matter.

Dated: April 21, 2014

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

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