Murphy v. Chicago et al

Filing 31

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 4/15/2015: Granting Defendants' partial motion to dismiss the claims in Counts III and VI. Mailed notice (mw, )

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

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

No. 14 C 7681

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ partial motion to dismiss the
claims in Counts III and VI. For the reasons stated below, the motion is granted.

BACKGROUND
Plaintiff Gregory Murphy (Murphy) alleges that on October 12, 2012, he was
walking along a street in Chicago, when an unmarked police car (Car) stopped near
him. Murphy claims that plainclothes police officers (Officers) exited the Car with
guns drawn and proceeded to search Murphy. Murphy contends that the Officers
lacked any reasonable suspicions to warrant such a search. The Officers allegedly
placed Murphy in the Car and drove him down the street to the building where
Murphy lived (Building). The Officers allegedly then proceeded to search the

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vestibule area of the Building. Murphy was then allegedly taken to the police station
and subjected to a strip search and was charged with possession of heroin with intent
to deliver and possession of heroin with intent to deliver within 1000 feet of a school.
According to Murphy, he was acquitted on such charges. Murphy includes in his
complaint a claim brought pursuant to 42 U.S.C. § 1983 (Section 1983) alleging false
arrest and detention (Count I), a Section 1983 Fourth Amendment claim based on the
alleged strip search (Count II), a Section 1983 Fourth Amendment claim based on
the alleged search of the Building (Count III), a Section 1983 Monell claim (Count
IV), a state law malicious prosecution claim (Count V), a state law conspiracy claim
(Count VI), a state law intentional infliction of emotional distress claim (Count VII),
a respondeat superior claim (Count VIII), which has been improperly identified in
the complaint as “Count IIX,” and a claim regarding payment of judgments or
settlements (Count IX). Defendants move to dismiss the claims in Counts III and VI.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
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suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see also
Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive a
motion to dismiss, the complaint ‘must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,’ and that ‘[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged’”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

DISCUSSION

I. Fourth Amendment Search of Building Claims (Count III)
Defendants argue that the Fourth Amendment claims alleged in Count III
premised on the search of the Building must be dismissed. The Fourth Amendment
affords to individuals “the ‘right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,’ and subject to ‘few
exceptions,’ it requires officers to obtain a warrant before searching a home.” United
States v. Gutierrez, 760 F.3d 750, 753-54 (7th Cir. 2014)(quoting Kyllo v. United
States, 533 U.S. 27, 31 (2001)). In the complaint, Murphy alleges that his Fourth
Amendment rights were violated by Defendants when they “illegally enter[ed]
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[Murphy’s] property and home. . . .” (Compl. Par. 30). However, Murphy further
alleges in the complaint that Murphy lived in a “three-flat building” and that the
Officers only “searched the vestibule area.” (Compl. Par. 14). While the Fourth
Amendment protection of the home “extends to the home’s curtilage—the area
immediately surrounding and associated with the home,” that protection only extends
“when an expectation of privacy that society is prepared to consider reasonable is
infringed . . or when the government engages in an unlicensed physical intrusion of a
constitutionally protected area in order to obtain information. . . .” Gutierrez, 760
F.3d at 753-54 (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). A
common area of a multi-dwelling complex has not been deemed an area where there
is an expectation of privacy under the Fourth Amendment. United States v.
Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991)(indicating that “it is odd to think of
an expectation of ‘privacy’ in the entrances to a building” since “[t]he vestibule and
other common areas are used by postal carriers, custodians, and peddlers” and that
the district court was “on solid ground in holding that a tenant has no reasonable
expectation of privacy in the common areas of an apartment building”). Plaintiffs, in
response to the instant motion, fail to offer any arguments in opposition and agree to
the dismissal of the Fourth Amendment claims in Count III. (Ans. Dis. 1, n.1).
Therefore, Defendants motion to dismiss the Fourth Amendment claims in Count III
is granted. The court also notes that to the extent that Murphy makes references in
Count III to the alleged failure of certain officers to intervene to prevent in the search
of the vestibule of the Building, any Section 1983 failure-to-intervene claim would
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be dismissed as well since the facts alleged in the complaint show that no
constitutional deprivation occurred in regard to the search.

II. Conspiracy Claims (Count VI)
Defendants move to dismiss the state law conspiracy claims in Count VI.
Under Illinois state law, if a plaintiff bases a state law conspiracy claim on the same
tort, which was already separately pled by the plaintiff in the case, the civil
conspiracy claim is duplicative. Patterson v. Dorrough, 2012 WL 5381328, at *8
(N.D. Ill. 2012)(citing Tamburo v. Dworkin, 2010 WL 5476780, at *9 (N.D. Ill.
2010)); see also Powell v. City of Berwyn, 2014 WL 4674305, at *15-16 (N.D. Ill.
2014)(stating that under Illinois law, “civil conspiracy is not an independent tort: if a
‘plaintiff fails to state an independent cause of action underlying his conspiracy
allegations, the claim for conspiracy also fails”)(internal quotations omitted)(quoting
Jones v. City of Chi., 2011 WL 1898243, at *6 (N.D. Ill. 2011)).
In the instant action, the conspiracy claims are premised on the same
underlying alleged facts. In addition, the conspiracy claims are also premised on the
same underlying alleged tort. In Count V, Murphy alleges that Defendants arrested
him and prosecuted him without probable cause. (Compl. Par. 44). In Count VI,
Murphy adds nothing more than that Defendants allegedly conspired to maliciously
prosecute him. (Compl. Par. 45-49). The state law conspiracy claim is thus
redundant and should be stricken. Murphy also argues that he has a right to plead in
the alternative. While that is true, that is not what he has done. He has pled a
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redundant claim, not an alternative claim. If there was a conspiracy, as alleged in
Count VI of the complaint, Murphy may potentially recover for the alleged tortious
action under the malicious prosecution claims in Count V. Murphy also argues that
the court should not rule on the redundancy issue until the summary judgment stage.
(Ans. 7). However, nothing prohibits a court from addressing the issue at the motion
to dismiss stage, and based on the allegations in the complaint in the instant action, a
dismissal is warranted at this juncture. Therefore, Defendants’ motion to dismiss the
conspiracy claims in Count VI is granted.

CONCLUSION
Based on the foregoing analysis, Defendants’ motion to dismiss the claims in
Counts III and VI is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: April 15, 2015

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