Estes v. McEnerney et al
Filing
67
MEMORANDUM Opinion and Order. Signed by the Honorable John W. Darrah on 10/14/2015. Mailed notice (tt, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Vance Estes (#20 1 3-0902080),
Plaintiff,
Case
No. 14 C 1374
v.
Judge John W. Darrah
Officer McEnerney, et a1.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Vance Estes, an inmate at Cook County Jail, brought this pro se civil rights action
under 42 U.S.C. $$ 1983, 1985 and 18 U.S.C. $ 1964, alleging that seven Chicago police officers
violated his rights while effectuating his arrest on September 1, 2013. This matter is before the
Court on Defendants' motion to dismiss portions of Plaintiffs fourth amended complaint [54].
For the following reasons, the motion is granted in part and denied in part.
BACKGROT]ND
Plaintiff alleges in his fourth amended complaint that on September 1,2013, Chicago
police officers arrested him while he was sitting in his parked vehicle and seized his personal
property from the vehicle. (Dkt. No. 48, 4th Am. Comp. ("Comp.")
at 15-16.)
While
effectuating the arrest, Officer Otero allegedly reached through the open driver's side window
of
Plaintiffs vehicle, punched Plaintiff in the head, grabbed Plaintiffs shirt, and strangled Plaintiff.
(Comp. at 16-17.) Officer McDonnell, who was on the passenger's side of Plaintiffs vehicle,
allegedly struck Plaintiffs head with a gun and punched Plaintiffin the face and about his body.
(Comp. at
17.) Officer McDermott then allegedly
extracted Plaintiff from the vehicle, struck
Plaintiffs head with a gun, and threw Plaintiff to the pavement where "they continued to assault
and batter"
Plaintiff. (Comp. at 17-18.) After Plaintiff was handcuffed, Otero allegedly
conducted a strip search of Plaintiff while Plaintifflay on the ground. (Comp. at
says that Officers
18.) Plaintiff
McDonnell, McDermott, McEnemey, Kennedy, Omara, and New stood nearby
during the strip search; some of the officers watched the strip search while others tried to control
the crowd of bystanders. (Comp. at 19.)
Additional law enforcement officers arrived "moments later." (Comp. at 19.) A "police
commander" examined Plaintiff asked the officers what had happened, and ordered the officers to
call for medical assistance. (Comp. at 19-20.) When the commander walked away, the offrcers
allegedly made derogatory remarks, including racial slurs, to
Plaintiff. (Comp. at20.) Medical
personnel arrived "moments later," examined Plaintifl and transported him to a hospital, where he
received sutures in his skull, right eye, and
severe trauma
chin. (Comp. 20-21.) Plaintiff
also says he sustained
to his right eye that resulted in corneal damage; bruises on his face, neck, collar
bone, and body; and abrasions on his knees, hands, wrists, .ums, and elbows. (Comp. at21.)
Plaintiff was then transported to a police station where he was placed in a holding cell.
Unidentified police officers-who Plaintiff "believes"
he previously filed
complaints
against-waved at him, laughed at him, pointed at him, and made comments such as "You gone
sue us too," and
"How much did you get from us last time." (Comp. 22-23.) Otero then entered
the holding cell and conducted a second strip search of Plaintiff. (Comp. at
23.) Plaintiff
subsequently was charged, fingerprinted, photographed, and returned to a holding cell, where he
complained to "the staff on duty" that he was feeling significant pain from his
injuries. (Comp.
23-24.) Plaintiff was transported back to the hospital for treatment. (Comp. at 24). Plaintiff
remains in custody on charges of possession of a controlled substance with intent to deliver,
aggravated battery of a peace officer, and resisting
arest.
(Comp. at24.)
In his fourth amended complaint, Plaintiff explicitly enumerates
thirteen claims:
unspecified "civil rights violations" (Comp. atZ4);"civil rights conspiracy" (Comp. at24--25); a
civil RICO violation (Comp. at 25); "racial profiling and racial intimidation" (Comp. at
26);
"deliberate indifference" (Comp. at 26); gross negligence (Comp. at 26-27); excessive force
(Comp. at28-29);assault and battery (Comp. at29);"unlawful strip search" (Comp.
"delayed medical attention" (Comp. at 30); "retaliation and intimidation
at29-30)1;
of a witness/victim"
(Comp. at 30-31); defamation (Comp. at31); and intentional infliction of emotional distress
(Comp. at32). Plaintiff names Offrcers Otero, McDonnell, McDermott, McEnerney, Kennedy,
Omara, and New as defendants to the fourth amended complaint. (Comp. at
1.) Plaintiff
also
attempts to reinstate Superintendent McCarthy as a defendant to this action even though McCarthy
was previously dismissed with
prejudice. (Comp. at l; seeDkt. No. 37.)
Before the Court is the Defendants' motion
to
dismiss portions
of Plaintiffs fourth
amended complaint.
ANALYSIS
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint.
v. Fraternal Order of Police of Chi. Lodge No. 7,570 F.3d 811, 820 (7th Cir.
See
Hallinan
2009). 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Under the
fbderal notice pleading standards, a plaintiff s "[flactual allegations must be enough to raise a right
to relief above the speculative
level." Id. 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 (2009) (quoting Twombly,550 U.S. at570).
"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). Courts also construe
pro se complaints liberally.
See Erickson v.
Pardus,551 U.S. 89,94 (2007) (per curiam).
Excessive Force and Unlawful Search
As an initial matter, Defendants concede that Plaintiff states a federal claim against
Defendants Otero, McDonnell, and McDermott arising from their alleged use
of force in
effectuating Plaintiffs anest as well as a claim against Defendant Otero arising from the allegedly
unlawful strip searches. (Dkt. No. 54, Defs. Mot. to Dismiss at
9.) Plaintiff therefore
may
proceed against Defendants Otero, McDonnell, and McDermott on a claim of excessive force
arising from the officers' alleged conduct in effectuating Plaintiffs arrest on September
well as an
unreasonable search claim against Otero arising from the
l,
2013, as
two alleged
strip
searches-one in public and one at the police station-on September 1,2013.
Plaintiff however, does not state a claim against any other Defendant arising from the
events of September
1,2013. Plaintiff
argues that he stated a claim against the other Defendants
for failure to intervene to prevent Otero's, McDonnell's, and McDermott's conduct. But the facts
pleaded by Plaintiff show only that "some" of the officers allegedly stood by and watched while
otlrers attemptbd
to control bystanders. Plaintiffs facts therefore are insufficient to
liability on any other Defendant insofar
a reasonable
as the facts do
not show that any particular Defendant had
opportunity to intervene but failed to do so.
4
confer
Gross Negligence, Intentional Infliction of Emotional Distress, and Battery
Defendants' motion to dismiss Plaintiffs state-law clairns of negligence and intentional
infliction of ernotional distress ("IIED") is denied in part and granted in part. Defendants argue
that the Illinois Local Government and Govemmental Tort Immunity Act,745ILCS 10/1-l0l et
seq,., "bars legal action against a municipality
(Defs. Mot. to Dismiss at
11.) But
or any of its employees based on negligence."
Defendants did not identiff a specific section of the Act that
provides blanket immunity against claims of negligence. Thus, Defendants failed to establish that
Plaintiffs negligence claim is baned under the Tort Immunity Act, see Van Meter v. Darien Park
Dist.,799 N.E.2d 273,280 (Ill. 2003) (explaining that government bears burden of establishing
that the Tort Immunity Act bars liability), and they raised no other challenge to the claim.
Defendants' motion to dismiss Plaintiffs negligence claim therefore is denied as to Defendants
Otero, McDonnell, and McDermott, arising from their conduct on September 1, 2013, but granted
as
to all other Defendants
because Plaintiff alleged no conduct by any other defendant that
plausibly rises to the level of negligence.
Sirnilarly, Defendants'motion to disrniss Plaintiffs IIED claim is denied as to Defendants
Otero, McDonnell, and McDermott but granted as to all other Defendants. The allegations in the
section of Plaintiffs pleading titled "intentional infliction of emotional distress" are little more
than conclusory statements devoid of facts suffrcient to state a claim against Defendants. (See
Comp. at
32.) As such, Defendants
claim for
IIED.
argue, Plaintiff failed to plead facts .sufficient to support a
(Defs. Mot. to Dismiss at
4.)
Plaintiff, however, alleged facts in the "summary
of comment" section of his fourth amended complaint that, if accepted as true, show Defendants
Otero, McDonnell, and McDermott engaged in arguably extreme and outrageous conduct while
effectuating Plaintiffs
anest. Consequently, Plaintiff alleged enough
at
this stage of the litigation
to proceed on a claim of intentional infliction of emotional distress against Defendants Otero,
McDonnell, and McDermott arising from their alleged conduct on September 1,2013.
In addition, Plaintiff motion to dismiss is denied
as to
Plaintiffs state-law battery claim
against Defendants Otero, McDonnell, and McDermott arising from the alleged use of force as
well as against Defendant Otero arising from the public strip search.r Under Illinois law,
a
police
officer rnay be liable for a battery committed in the course of a lawful arrest if "he acted with actual
or deliberate intention to harm or with utter indifference to or conscious disregard for the safety
of
others." Chelios v. Heavener,520 F.3d 678, 693 (7th Cir. 2008). Accepting his allegations
as
true as it rnust at this juncture, Plaintiff alleged sufficient fabts from which it may be infemed that
Otero's, McDonnell's and McDermott's conduct at the scene of Plaintiffs arrest rvas intended to
callse harm.
Plaintiffs remaining claims must be dismissed
as
to all Defendants.
Civil RICO
'
Plaintiff failed to allege facts sufficient to sustain a claim under the Racketeer Influenced
and Corrupt Orgarrzations Act (RICO), 18 U.S.C.
eradicating organized, long-term, habitual criminal
$ 1962(c). RICO is
activity."
"concerned with
Gamboa v. Velez,457 F.3d 703,
705 (7th Cir. 2006) (collecting cases).' To state a civil RICO claim, a plaintiffmust allege "(1)
conduct (2)
of an enterprise (3) through a pattern (a) of racketeering activity."
Id.
Here,
Plaintiff alleged facts showing only an isolated instance of alleged misconduct by three Chicago
rDefendants did not challenge Plaintiffs
"assault and battery" claim in their motion to dismiss.
Nevertheless, for the sake of completeness and in the absence of an initial assessment of Plaintiffs forth
amended complaint under 28 U.S.C. $ 19154,, the Court takes this opportunity to address each claim
explicitly enumerated by Plaintiff in his fourth amended complaint.
6
police officers and, despite Plaintiffs conclusory assertions to the contrary, the alleged conduct
does not
fall within the categories of conduct identified
as actionable under
RICO. See 18 U.S.C.
$ 1961(1). That is, Plaintiff alleged facts showing only a potentially unreasonable search
seizure, not apredicate act of racketeering activity as defined by section
and
1961(1). Thus, Plaintiffs
RICO claim is dismissed without prejudice.
Defamation
Defendants are entitled to absolute immunity from any claim that they defamed Plaintiff by
identiffing him as a "Lowden Homes Gangster Disciple Gang Member" on an arrest report and in
the LEADS database. Absolute privilege is a defense to a claim of defamation against
government actors. Geickv. Kay,603 N.E.2d
l2l,l27 (ll.
App. Ct.1992). Absolute privilege
was established to ensure that govemment actors may "exercise their duties unembarrassed by the
fear of damages suits in respect of acts done in the course of those duties .
. . ." Harris
v.
News-Sun,646N.E.2d 8, 11 (ru.,App. Ct. 1995) (quoting Barrv. Matteo,360 U.S. 564"571
(1959). The Court
considers only "whether the statements made were reasonably related to
[Defendants'] duties" in assessing whether a defendant is entitled to the privilege. Geick, 603
N.E.2d
atl27-28. Absolute privilege
cannot be overcome by a showing of improper motivation,
knowledge of the statement's falsity, or a malicious intent. Geick,603 N.E.2d at 127.
Here, Plaintiff complains that Defendants maliciously included untrue
concerning his gang affiliation
statements
in an arest report and entered the information into a law
enforcement database. But preparing arrest reports and maintaining the law enforcement
database are indisputably related to Defendants' duties as police
officers. Defendants therefore
are entitled to immunity from a claim of defamation stemming from those actions. See, e.g.,
Harris,646 N.E.2d at 8 (affirming finding of absolute privilege arising from detective's statements
to media concerning investigation and arrest and noting that statements were made in course of
detective's duties); Cainv-
Illinois,200l WL 34677727, at *9-10 (nl. Ct. Cl. Feb.28,2001)
(denying defamation claim against conservation officer for making allegedly false statements
imputing commission of a crime). Plaintiffs defamation claim is dismissed with prejudice.
"Civil Rights Conspiracyr" "Racial Profiling and Racial Intimidationr"
and "Retaliation and Intimidation of a Witness"
Plaintiffs claims of "civil rights conspiracy," "racial profiling
and racial
intimidation," and
"retaliation and intimidation of a witness" must be dismissed because Plaintiff alleged insufficient
facts to support his claims. To state a claim for conspiracy under $ 1983, a complaint must
include plausible allegations of a conspiracy to violate Plaintiffs constitutional rights, Twombly,
550 U.S. at 556, but Plaintiff alleged no such facts in his fourth amended complaint. Instead,
Plaintiff relies on conclusory statements that Defendants conspired to "obstruct the due course of
justice," "retaliate against Plaintiff . . . for civil lawsuits filed in the past," deprive Plaintiff of
"equal protections of law or of privileges and immunities under laws," and cover up official
misconduct. But mere invocation of the word "conspiracy" followed by legal conclusions will
not suffice to state a claim under Rule
8.
See
lqbal,556 U.S. at 678 (explaining that threadbare
recitations of the elements of a cause of action, supported by mere conclusory statements are
insufficient to satis$ Rule 8).
Plaintiffs "racial profiling
as
and racial
intimidation" claim suffers from similar flaws insofar
Plaintiff contends that Defendants "selectively chose [Plaintiff] as a target . . . because of his
race" and made racial slurs toward Plaintiff (see Comp . at 26) but supported his contention only
with facts showing that some of the Defendants made racially charged remarks toward Plaintiff
following his arrest. Racial slurs alone, however, are insufficient to establish a constitutional
v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) ("The use of racially
violation.
See Del4/alt
derogatory
language
does not violate the Constitution."). Plaintiffs "retaliation and
intimidation of a witness" is equally threadbare.2 (See Comp. at 30-31. Consequently, Plaintiffs
"civil rights conspiracy," "racial profiling and racial intimidation," and "retaliation
intimidation of
a
and
witness" are dismissed without prejudice.
Deliberate Indifference
It is unclear what Plaintiffintended by including the section titled "deliberate indifference"
in his pleading (see Comp. at 26) but it appears to be an attempt to reinstate Superintendent
McCarthy as a defendant to this action. McCarthy, however, was dismissed with prejudice on
June 12, 2014, and Plaintiff presented no basis for the Court to reconsider that dismissal.3
Moreover, Plaintiffs allegations concerning "deliberate indifference" consist of nothing more than
generalized labels and conclusions, e.g., Plaintiff alleges that Defendants acted with "reckless
indifference to the Plaintiffs constitutional rights and acted with intentional malice with a desire to
injure" Plaintiff. But as discussed above, such allegations are insufficient to state a claim under
Rule
8.
Plaintiffs deliberate indifference claim is dismissed with prejudice.
2Defendants
did not directly address Plaintiffs "retaliation and intimidation of a witness" claim in their
motion to dismiss. Nevertheless, for the sake of completeness and in the absence of an initial assessment
of Plaintiffs forth amended complaint under 28 U.S.C. $ 1915A, the Court takes this opportunity to address
each claim explicitly enumerated by Plaintiff in his fourth amended complaint.
3
Plaintiff attempts to invoke liability against Defendant McCarthy throughout his fourth amended
complaint, but Plaintiffs allegations against McCarthy consist of nothing more than labels and conclusions.
For example, Plaintiffs assertion that "McCarthy, at his direction, policy, and/or knowledge and consent
knew of the misconduct and condoned it, or turned a blind eye to it creating a substantial moving force for
risk of and/or injury to the Plaintiff' (Comp. at25), is devoid of any facts showing how McCarthy allegedly
violated Plaintiffs rights. As such, the allegation (as well as other similar allegations) is insufficient to
state a claim against McCarthy. See lqbal,556 U.S. at678 (quoting Twombly,550 U.S. at 555 (2007)).
9
Delayed Medical Attention
Plaintiff pleaded facts showing that he received prompt and adequate medical attention to
his injuries, and thus he has no claim arising from his medical treatment. Specifically, Plaintiff
alleges that "moments" after his encounter with Defendants Otero, McDonnell, and McDermott, a
police commander arrived on site, examined Plaintiff and ordered the officers to call medical
personnel. Medical personnel arrived "moments later," examined Plaintiff, and transported
Plaintiff to a hospital, where he received treatment for his injuries. Given Plaintiffs factual
allegations, he cannot contend in good faith that Defendants caused a significant delay in the
treatment of his injuries. Moreover, the mere fact that Defendants may have taunted Plaintiff
while he was awaiting medical attention or while he was being transported to the hospital does not
give rise to a claim. See DeWalt,224 F.3d at 613 (explaining that verbal harassment is not a
constitutional violation). Plaintiff therefore pleaded himself out of court on any claim arising
from treatment of his injuries on September 1,2013.
832
See
Atkins v. City of Chicago,63l F.3d823,
(7thCir.20l1) (explaining that a plaintiff may plead himself out of court by alleging
facts that
defeat his claim); Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (same).
Consequently, a.ry claim against Defendant's arising from the medical attention Plaintiff received
on September 1, 2013, is dismissed with prejudice.
CONCLUSION
Accordingly, Defendants' motion
to
complaint [5a] is granted in part and denied in
dismiss portions
of Plaintiffs fourth
part. Defendants'motion
amended
to dismiss is denied as to
Plaintiffs claims against Defendants Otero, McDonnell, and McDermott for excessive force,
battery, gross negligence, and intentional infliction of emotional distress arising from the officers'
10
conduct in effectuating Plaintiffs arrest on September
1,2013. Defendants'motion to dismiss is
also denied as to Plaintiffs claims of unreasonable search, gross negligence, and intentional
infliction of emotional distress against Defendant Otero arising from the two alleged strip searches
on September 1,2073. Defendant McCarthy was previously dismissed from this action with
prejudice
[37].
Defendant's motion to dismiss all remaining claims and defendants is granted;
dismissal of Defendants McEnerney, Kennedy, Omata, and New is without prejudice. Plaintiffs
request for leave to
file
a supplemental response to defendants' motion to dismiss
[63] is granted;
the Court considered Plaintiffs supplemental response in ruling on Defendants'motion. The case
remains stayed pending resolution of Plaintiffs criminal proceedings.
Date:
,TW
fO^ /4- {
1t
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?