Clay v. Dart et al.,

Filing 70

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/6/2017. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHAWN CLAY,
Plaintiff,
v.
COOK COUNTY and COOK COUNTY
SHERIFF THOMAS DART,
Defendants.

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Case No. 14-cv-10515
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion of Cook County and Sheriff Thomas Dart
(collectively, “Defendants”) to dismiss Plaintiff’s second amended complaint for failure to state
a claim [55].1 For the reasons stated below, Defendants’ motion is denied. This case is set for
status hearing on March 22, 2017 at 9:30 a.m.
I.

Background2
On December 25, 2012, Plaintiff Shawn Clay (“Clay”) was arrested for aggravated

robbery. The following day, he was taken into custody by Cook County employees under the
direction of Defendant Dart. Plaintiff was not provided a probable cause hearing—commonly

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Officers G. Devries and Eggebrect, who were named as defendants in Plaintiff’s original complaint,
have been dismissed from the case with prejudice pursuant to the parties’ joint stipulation [63].

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For purposes of Defendant’s motions to dismiss, the Court assumes as true all well-pled allegations set
forth in the second amended complaint [52]. See Mutter v. Madigan, 17 F. Supp. 3d 752, 756 (N.D. Ill.
2014). The Court also takes judicial notice of the certified statements of conviction/dispositions and
transcripts attached to Defendants’ motion to dismiss. See [55-2] through [55-5]; see also Fletcher v.
Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“We can take judicial notice of prior
proceedings in a case involving the same litigant.”).

referred to as a Gerstein hearing3—until January 3, 2013. Plaintiff alleges that this delay
violated his right to due process under the Fourth and Fifteen Amendments to the United States
Constitution.
Plaintiff’s second amended complaint contains a single count based on Monell v. Dep’t of
Soc. Servs. of City of New York, 536 U.S. 658, 694 (1978). Plaintiff alleges that it is a “common
practice, custom, and/or policy of employees of Cook County to hold individuals beyond the
constitutionally required time for a bond hearing where those individuals were being held for
other charges.”

[52] at 2.

More specifically, Plaintiff alleges that several Cook County

employees informed him that this was a common practice, custom, and/or policy of the Cook
County Jail. Plaintiff also alleges that other individuals arrested and jailed by Cook County
deputies have had their constitutional rights violated in the same manner. In addition, Plaintiff
cites to another lawsuit from this district, Weaver v. Dart, Case. No. 16-cv-4415, in which the
plaintiff alleged that “[t]he Sheriff of Cook County has [a] practice[,] custom and policy to avoid
providing hearing[s] for individuals who are being held for other charges.” [52] at 3. Plaintiff
seeks compensatory damages, attorneys’ fees, and costs.
Currently before the Court is Defendants’ motion to dismiss the second amended
complaint for failure to state a claim. Defendants attach documentation showing that Plaintiff’s
arrest for armed robbery triggered an alert that Defendant had two outstanding felony warrants
for armed robberies that he allegedly committed in other districts of Cook County.

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On

In Gerstein v. Pugh, 420 U.S. 103, 124-25 (1975)), the Supreme Court held that, “[w]hatever procedure
a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for
any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either
before or promptly after arrest.” “[A] jurisdiction that provides judicial determinations of probable cause
within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.”
Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

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December 26, 2012, Defendant was taken to the Bridgeview Courthouse for a Gerstein hearing
on the two felony warrants—but not on the Christmas Day aggravated robbery charge. See [554]. Bond was set at $150,000, which Plaintiff did not pay. Plaintiff pled guilty to the two armed
robbery charges. At sentencing, Plaintiff was given credit for the time that he spent in custody
between December 26, 2012 and January 3, 2013.
II.

Legal Standard
Defendant seeks dismissal of Plaintiff’s complaint under Federal Rule of Civil Procedure

12(b)(6), which challenges the legal sufficiency of the complaint. For purposes of a motion to
dismiss under Rule 12(b)(6), “the court accepts all well-pleaded factual allegations as true and
construes all reasonable inferences in the plaintiff’s favor.” Mutter, 17 F. Supp. 3d at 756. To
survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must allege facts which,
when taken as true, “‘plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a speculative level.’” Cochran v. Illinois State Toll Highway Auth., 828 F.3d
597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th
Cir. 2007)). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v.
City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).
III.

Analysis
A.

Sufficiency of Monell Allegations

Defendants argue that Plaintiff’s Monell claim must be dismissed because it simply
repeats the applicable legal standard and does not contain sufficient factual allegations to
plausibly suggest that Plaintiff is entitled to relief.
The Court concludes that Plaintiff’s allegations are sufficient to state a § 1983 Monell
claim. Under 42 U.S.C. § 1983, a person may sue anyone who, while acting under color of law,

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causes him to be deprived of any of his constitutional rights. 42 U.S.C. § 1983; Connick v.
Thompson, 563 U.S. 51, 60–62 (2011). A municipality can be held liable under Section 1983
only “when execution of [its] policy or custom, whether made by its lawmakers or by those
whose edicts or acts may be fairly said to represent official policy,” causes the constitutional
deprivation. Monell v. Dep’t of Soc. Servs. of City of New York, 536 U.S. 658, 694 (1978). One
of the ways in which a plaintiff may establish municipal liability under Monell is by showing “a
‘wide-spread practice’ that although not authorized by written law and express policy, is so
permanent and well-settled as to constitute a ‘custom or usage’ with the force of law.” Calhoun
v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (quoting McTigue v. City of Chicago, 60 F.3d 381,
382 (7th Cir. 1995)).
To state a Monell claim, a plaintiff must plead “factual content that allows the court to
draw the reasonable inference” that the municipality maintained a policy or custom that caused
the alleged constitutional deprivation. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011) (quoting Iqbal, 556 U.S. at 678). “The required level of factual specificity rises with the
complexity of the claim.” Id. at 616–17; Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir.
2010) (“A more complex case * * * will require more detail, both to give the opposing party
notice of what the case is all about and to show how, in the plaintiff’s mind at least, the dots
should be connected.”). Mere “legal conclusions or elements of the cause of action” must be
disregarded.

McCauley, 671 F.3d at 617.

Thus, “boilerplate” allegations that repeat the

elements of a Monell claim without any further factual content are dismissed for failure to state a
claim. See, e.g., Annan v. Vill. of Romeoville, 2013 WL 673484, at *6 (N.D. Ill. Feb. 25, 2013)
(holding that an allegation that defendant “maintains a policy by which officers use excessive

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force to arrest individuals with no probable cause or reasonable suspicion warranting such” was
insufficient to state a Monell claim).
Plaintiff’s allegations are sufficient to state a Monell claim based on Defendants’ alleged
practice, custom, and/or policy of holding individuals beyond the constitutionally required time
for a bond hearing (two days) where those individuals were being held for other charges. See
Fonder v. Sheriff of Kankakee Cty., 823 F.3d 1144, 1145 (7th Cir. 2016) (“Police may take as
long as two days before presenting an arrested person to a judge for a probable-cause
determination.” (citing Riverside County v. McLaughlin, 500 U.S. 44 (1991))). Plaintiff cites to
(1) his own personal experience at the Cook County Jail; (2) alleged admissions made to Plaintiff
by Cook County Jail personal; (3) alleged knowledge of other instances in which individuals
being held for other charges were not provided a bond hearing within two days; and (4) another
lawsuit in this district in which the same alleged policy, practice, and/or custom was raised. See
[52] at 2-3, ¶¶ 5, 9, 10.
The Seventh Circuit case on which Defendants’ motion to dismiss relies, McCauley, 671
F.3d 611, does not support dismissal of Plaintiff’s Monell claim. In McCauley, the plaintiff
failed to state a Monell claim against the City of Chicago for failure to maintain policies to
protect victims of domestic violence from persons who violate parole or court orders, where the
complaint contained no factual allegations supporting the plausibility of the claim, and the facts
alleged were “actually legal conclusions or elements of the cause of action.” Id. at 617. Here, by
contrast, Plaintiff cites not only his own experience at the Cook County Jail, but also the alleged
experience of other inmates who were waited more than two days for a bond hearing when they
were being held on other charges, alleged admissions from Cook County Jail personnel that this
was its policy or practice, and another lawsuit alleging the same alleged policy or practice. From

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these allegations, the Court is able “to draw the reasonable inference” that the Cook County Jail
maintained a policy or practice that caused Plaintiff’s alleged constitutional deprivation. Id. at
616.
B.

Applicability of Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013)

Defendants also argue that Plaintiff’s Monell claim must be dismissed pursuant to
Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013), because Plaintiff is unable to establish that he
suffered a cognizable injury. In Bridewell, the Seventh Circuit affirmed the district court’s grant
of summary judgment against a plaintiff who alleged that the defendants violated her Fourth
Amendment rights by holding her for more than 48 hours before taking her to a Gerstein hearing
on a murder charge. When Bridewell eventually received her Gerstein hearing, the court
revoked her bail on an earlier cocaine possession charge, found that probable cause existed for
the murder charge, and denied bail on the murder charge. Judge Easterbrook, writing for the
majority, reasoned that Bridewell was not injured by the delay, and the defendants were therefore
entitled to summary judgment on Bridewell’s Section 1983 Fourth Amendment claim, because
she was “arrested properly and was not entitled to release on bail,” and if she had received a
timely hearing she merely “would have learned these things a little sooner but would have
remained in jail.” Id. at 676-77. In addition, the majority reasoned, Bridewell received credit
against her sentence for cocaine possession for every hour she spent in custody following her
arrest for murder, and “cannot receive damages for time spent in custody on a valid sentence.”
Id. at 677 (citing Ramos v. City of Chicago, 716 F.3d 1013, 1020 (7th Cir. 2013) (holding in a
Section 1983 malicious prosecution case that “any presumption of damages [where the
prosecution results in incarceration] is surely defeated in a case where all of the time served is
ultimately credited toward an unrelated weapons violation”)).

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Defendants argue that, under Bridewell, Plaintiff cannot show that he was injured by
Defendants’ delay in taking him to a Gerstein hearing, because Plaintiff was being validly held
in custody during that time for his two earlier armed robbery charges (for which he did receive a
timely Gerstein hearing) and did not post the $150,000 bond that had been set on those charges.
The Court is not persuaded that Bridewell provides sufficient grounds for dismissing
Plaintiff’s complaint at this early stage of the case. In Bridewell, the Seventh Circuit found that
the plaintiff did not suffer a cognizable injury because she was properly arrested for murder (i.e.,
there was probable cause) and she “was not entitled to release on bail.” 730 F.3d at 676. In this
case, although Plaintiff was apparently unable or unwilling to pay the $150,000 bond on the
earlier robbery charges, Plaintiff, unlike Bridewell, was “entitled to release on bail” on those
charges. Id. Further, Bridewell examined whether there was probable cause or an entitlement to
bail on the charge for which the untimely Gerstein hearing was held, not on the plaintiff’s earlier
charges. Here, it is not apparent from the pleadings or other documents provided to the Court
whether Cook County police officers had probable cause to arrest Plaintiff for the Christmas Day
robbery, or whether Plaintiff was eventually found eligible for bail on the aggravated robbery
charge.
Defendants also argue that Plaintiff’s complaint should be dismissed under Bridewell
because, when Plaintiff plead guilty and was sentenced on the two earlier armed robbery charges,
he received credit for all of the time that he spent awaiting his Gerstein hearing on the Christmas
Day robbery. Therefore, Defendants maintain, Plaintiff will be unable to establish that he
suffered any cognizable injury.
The Court agrees that Bridewell forecloses Plaintiff from obtaining compensatory
damages on his due process claims to the extent that Plaintiff received sentencing credit for the

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days he spent awaiting his Gerstein hearing. Bridewell is clear that a Section 1983 Plaintiff
alleging a Fourth Amendment claim “cannot receive damages for time spent in custody on a
valid sentence.” 730 F.3d at 677.
Nonetheless, the Court concludes that Defendants are not entitled to have Plaintiff’s
complaint dismissed at the pleading stage because it is not clear that Plaintiff is foreclosed from
obtaining any type of relief, and in particular nominal damages and attorneys’ fees, for
Defendants’ alleged constitutional violations.

The majority opinion in Bridewell does not

discuss whether a plaintiff might be entitled to nominal damages even if she is unable to
establish an entitlement to actual damages. Chief Judge Wood, however, raised the issue in her
concurrence, discussing the Supreme Court’s decision in Carey v. Piphus, 435 U.S. 247 (1978), a
case involving a student who was suspended from his public school without due process for
possession of marijuana. See Bridewell, 730 F.3d at 681 (Wood, C.J., concurring). In Carey, the
Supreme Court ruled that even if there was factual justification for the student’s suspension, he
“nevertheless will be entitled to recover nominal damages not to exceed one dollar from
petitioners,” because “the right to procedural due process is ‘absolute’ in the sense that it does
not depend upon the merits of a claimant’s substantive assertions.” Carey, 435 U.S. at 267. In
Chief Judge Wood’s view, Carey also “recognized that damages for emotional distress
attributable to the deficiencies in procedure are possible, if the person can ‘convince the trier of
fact that he actually suffered distress because of the denial of procedural due process itself.’”
Bridewell, 730 F.3d at 681 (Wood, C.J., concurring) (quoting Carey, 435 U.S. at 263). However,
Chief Judge Wood agreed with the majority that, “putting nominal damages to one side,
Bridewell cannot recover anything for time spent in custody that was credited to a lawful
sentence.” Id.

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Since Bridewell was decided, the Seventh Circuit has issued several decisions
recognizing that a Section 1983 plaintiff may be entitled to nominal damages when he
establishes a violation of his constitutional rights, but fails to prove any actual damages. For
instance, in Moore v. Liszewski, 838 F.3d 877 (7th Cir. 2016), the Seventh Circuit considered
whether a prisoner could receive nominal damages on his Section 1983 claim against a
correctional officer for excessive force, even though the jury concluded that the prisoner incurred
no actual damages. The court concluded that it was proper for the jury to award nominal
damages where the evidence supported the jury’s finding that the correctional officer used
excessive force against the prisoner, but the prisoner incurred not actual damages. The court
outlined several reasons for nominal damages, including, as the Supreme Court recognized in
Carey, the “‘importance to organized society of [constitutional] rights be[ing] scrupulously
observed.’” Id. at 880 (quoting Carey, 435 U.S. at 266); see also Six Star Holdings, LLC v. City
of Milwaukee, 821 F.3d 795, 805 (7th Cir. 2016) (recognizing in case alleging First Amendment
violation that, “in civil rights cases, nominal damages are appropriate when a plaintiff's rights are
violated but there is no monetary injury”). Further, Moore concluded that even though the
plaintiff was not entitled to compensatory damages, his entitlement to nominal damages would
establish his status as a prevailing part for purposes of Section 1983’s fee-shifting statute. 838
F.3d at 880.
At least one other district court has denied a motion to dismiss a Section 1983 due
process claim based on Bridewell due, in part, to the potential availability of nominal damages to
a plaintiff who was held in prison for one charge based on fabricated evidence, but received
credit for that time when he plead guilty to and was sentenced on another charge. See Sumling v.
Vill. of E. Dundee, 2015 WL 5545294, at *5 (N.D. Ill. Sept. 18, 2015) (“even if Sumling

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ultimately cannot prove that he is entitled to compensatory damages (because the liberty
deprivation ended up being counted as time served) he may still be entitled to nominal damages”
(citing Bridewell, 730 F.3d at 681 (Wood, J., concurring); Buckley v. Fitzsimmons, 20 F.3d 789,
796 (7th Cir. 1994) (“[F]ailure to use the procedures the due process clause requires may lead to
an award of nominal damages, even if a properly conducted hearing would have come out the
same way.”); Smith v. City of Chicago, 91 3 F.2d 469, 473 (7th Cir. 1990) (where fabricated
evidence does not cause injury, award of nominal damages is still appropriate)).
In this case, the Court concludes that Plaintiff’s second amended complaint alleges facts
which, if taken as true, plausibly suggest that Defendants violated his right to receive a Gerstein
hearing within 48 hours of his arrest, which may entitle Plaintiff to nominal damages and fees
under Section 1983. Plaintiff alleges, and Defendants do not deny, that he was held for nine days
before receiving a Gerstein hearing on the Christmas Day robbery. Plaintiff also alleges that, as
a direct and proximate result, he “suffered violations of his constitutional rights, emotional
anxiety, fear, humiliation, monetary loss, pain, and suffering.” [52] at 3. Defendants have not
demonstrated that governing Supreme Court and Seventh Circuit precedent would foreclose
Plaintiff from obtaining any relief under this set of facts.
IV.

Conclusion
For these reasons, Defendants’ motion to dismiss Plaintiff’s second amended complaint

for failure to state a claim [55] is denied. This case is set for status hearing on March 22, 2017 at
9:30 a.m.

Dated: March 6, 2017

____________________________________
Robert M. Dow, Jr.
United States District Judge

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