Brown v. Zydek et al

Filing 52

MEMORANDUM Opinion and Order. The motion of defendants Zydek, Burg, and Zepeda to dismiss the first amended complaint 28 is granted, and Counts I through IX and XVI are dismissed with prejudice. The motion of defendants McCarthy, Weis, and the City of Chicago to dismiss the first amended complaint 29 is granted, and Counts X through XV are dismissed with prejudice. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 8/16/2016. Notice mailed by judge's staff (ntf, )

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

DARNELL BROWN,

)
)
Plaintiff,
)
)
v.
)
)
BRIAN ZYDEK, BRIAN BURG,
)
ANDRES ZEPEDA, GARRY MCCARTHY, )
JODY P. WEIS, and the CITY OF CHICAGO, )
)
Defendants.
)

No. 15 C 1044
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Before the Court are defendants’ motions to dismiss the amended complaint, which are
granted for the reasons explained below.
BACKGROUND
Plaintiff, Darnell Brown, brought this civil rights suit against the City of Chicago and
former Chicago police superintendents Garry McCarthy and Jody Weis (the “City Defendants”),
as well as Chicago police officers Bryan Zydek, Brian Burg, and Andres Zepeda (the “Officer
Defendants” or the “Officers”). Plaintiff alleges the following facts, which the Court takes as
true for purposes of the instant motions. On May 17, 2011, around 12:30 a.m., plaintiff and a
friend, Ebony Mason, stopped at a gas station/convenience store at 6657 South Halsted Street in
Chicago. Mason was driving her car, and plaintiff was in the front passenger seat. Plaintiff
entered the convenience store to make a purchase and then left. While plaintiff was inside, a
security guard approached him but did not accuse him of any wrongdoing. A few minutes later,
plaintiff went back into the store to get change for a ten-dollar bill. On his way out, plaintiff

passed a second security guard, who, like the first guard, did not accuse plaintiff of wrongdoing.
One of the security guards, however, then called police and reported that plaintiff had a gun.
Plaintiff returned to the car, and Mason drove to plaintiff’s house. Once there, plaintiff
discovered that some important papers he had had with him were missing, so he and Mason got
back in the car to retrace their route. As they were driving back to the gas station, two Chicago
police vehicles began following them. Plaintiff became afraid, and he removed the pistol he was
carrying in his waistband and put it in his lap. Unbeknown to him, he inadvertently disengaged
the safety.
One of the police vehicles that was following Mason’s car was a Chevrolet Tahoe SUV
driven by Officer Zepeda. Zepeda drove the SUV alongside the car and then rammed it so hard
that the pistol in plaintiff’s lap discharged, wounding him in the right thigh. (Plaintiff’s pistol
did not discharge at any other time during the incident.)
As the vehicles were slowing down, plaintiff jumped from the car and ran away while
concealing his pistol in front of him. As he ran, Officers Zydek and Burg fired as many as
twenty shots at plaintiff. Seven shots hit plaintiff in the back and lower extremities, but plaintiff
kept running. One more shot hit him behind his right knee and caused him to fall, rendering him
permanently disabled. As plaintiff fell forward, his pistol fell to the ground, and Zepeda kicked
it out of reach. Plaintiff spread his arms out to surrender and was handcuffed by Zydek or Burg.
Plaintiff was subsequently charged with two counts of attempted murder, two counts of
aggravated assault, and nine counts of aggravated unlawful use of a weapon. On August 18,
2013, plaintiff was acquitted of the attempted murder and aggravated assault charges. He was
convicted, though, of two counts of aggravated unlawful use of a weapon under 720 ILCS 5/241.6, a statute that the Seventh Circuit had previously declared unconstitutional.
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Plaintiff alleges that as a result of the knee injury, he lost function and suffers from
constant pain. He has suffered “continuous nightmares, and is compelled to talk about [the
incident] at every opportunity.” (ECF No. 6, First Am. Compl. ¶ 22.) The amended complaint
contains the following numbered counts: § 1983 claims against Zydek (Count I), Burg (Count
II), and Zepeda (Count III); false imprisonment against Zydek or Burg, based on the handcuffing
(Count IV); assault and battery against Zepeda based on the ramming of the vehicle (Count V);
assault and battery against Zydek and Burg based on the shooting (Count VI); malicious
prosecution against Zydek and Burg (Counts VII, VIII, and IX); § 1983 and respondeat superior
claims against McCarthy and Weis “‘qua’1 the City of Chicago Police Department” (Counts XXIII); § 1983 and respondeat superior claims against the City (Counts XIV and XV); and a claim
for civil conspiracy against the Officer Defendants (Count XVI).

The City Defendants and the

Officer Defendants have brought separate motions to dismiss the amended complaint.
DISCUSSION
A.

Legal Standards
When evaluating the sufficiency of a complaint, the Court construes it in the light most

favorable to the plaintiff, accepts as true all well-pleaded facts therein, and draws all reasonable
inferences in plaintiff’s favor. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir.
2013). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations” but must contain “enough facts to state a claim for relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has facial

1

It is not entirely clear what plaintiff means by “McCarthy and Weis ‘qua’” the police
department and/or City. Nevertheless, as discussed below, he fails to state a claim against them
under any conceivable theory.
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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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556).
B.

The Officers’ Motion
1.

Section 1983 Claims

“The first step in analyzing a § 1983 claim is to identify the specific constitutional right
allegedly infringed.” Gray v. City of Chi., 159 F. Supp. 2d 1086, 1089 (N.D. Ill. 2001) (citing
Graham v. Connor, 490 U.S. 386, 394 (1989)). Plaintiff alleges that the Officer Defendants
violated his rights under the Second, Fourth, and Fourteenth Amendments. (First Am. Compl. ¶
23.)
a.

Fourth Amendment

The Officers contend that plaintiff’s § 1983 claims against them are time-barred, to the
extent that the claims are based on the Fourth Amendment. A defendant may raise the statute of
limitations in a motion to dismiss “if the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense.” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).
The parties agree that § 1983 Fourth Amendment claims are governed by a two-year statute of
limitations. See Brooks v. City of Chi., 564 F.3d 830, 832 (7th Cir. 2009) (citing 735 ILCS 5/13202). Generally, the statute of limitations on a § 1983 claim begins to run when the plaintiff
knows or has reason to know of the injury that is the basis of his action. Serino v. Hensley, 735
F.3d 588, 591 (7th Cir. 2013). Claims for false arrest, though, accrue when the claimant
becomes detained pursuant to legal process. Id. (citing Wallace v. Kato, 549 U.S. 384, 397
(2007)).

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The Court agrees with defendants that plaintiff’s Fourth Amendment claims are
untimely. The events at issue took place on May 17, 2011; plaintiff does not dispute that the
following day, a state-court judge found probable cause to detain him on the charges;2 and
plaintiff did not file this action until January 31, 2015, well after the expiration of the two-year
statute of limitations. Plaintiff argues that the time from the incident until his August 2013
acquittal on certain of the charges is excluded from the limitations period pursuant to 720 ILCS
5/3-7(a)(6), which states that “[t]he period within which a prosecution must be commenced does
not include any period in which . . . the victim of unlawful force or threat of imminent bodily
harm to obtain information or a confession is incarcerated, and the victim’s incarceration, in
whole or in part, is a consequence of the unlawful force or threats.” But this statute does not
apply here; it tolls the limitations period for state criminal prosecutions. Accordingly, plaintiff’s
§ 1983 claims against the Officer Defendants, to the extent they are based on the Fourth
Amendment, are dismissed with prejudice as time-barred.
b.

Second Amendment

Plaintiff alleges that defendants violated his Second Amendment right to bear arms by
“hunting the plaintiff down and shooting him eight times because he was reported to have a gun”
and kicking his pistol out of reach once he was on the ground. (First Am. Compl. ¶ 23(e), (m).)
As defendants point out in their reply brief, these allegations appear to be a futile attempt to
transform a Fourth Amendment claim for unlawful seizure into a Second Amendment claim.

2

Defendants attach to their motion copies of the Certified Statements of
Conviction/Disposition that pertain to plaintiff’s state-court proceedings. (ECF No. 28-1.) The
Court can consider these public records, which are central to plaintiff’s complaint, without
converting the motion to dismiss into a motion for summary judgment. See Ennenga v. Starns, 677
F.3d 766, 773 (7th Cir. 2012).
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But the complaint is not a model of clarity, and to the extent that plaintiff is alleging that the
seizure of his gun violated the Second Amendment, the Court will address that claim.
Defendants contend that dismissal is warranted because the Seventh Circuit has not recognized a
Second Amendment right in the context of a police officer’s seizure of an individual’s firearm
during the course of an arrest. In response, plaintiff maintains that pursuant to the Supreme
Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City
of Chicago, 561 U.S. 742 (2010), and the Seventh Circuit’s decision in Moore v. Madigan, 702
F.3d 933 (7th Cir. 2012), he had a right to possess a gun outside the home for purposes of selfdefense, and the Officers wrongfully deprived him of that right.
In support of their motion, defendants cite Sutterfield v. City of Milwaukee, 751 F.3d 542,
571 (7th Cir. 2014), in which the Court of Appeals discussed whether the seizure of an
individual’s firearm during the course of an arrest gives rise to a Second Amendment claim. The
Court stated in pertinent part:
Whether and to what extent the Second Amendment protects an individual’s right
to possess a particular gun (and limits the power of the police to seize it absent
probable cause to believe it was involved in a crime) is an issue that is just
beginning to receive judicial attention. Heller itself recognizes that the right to
possess a firearm secured by the Second Amendment “is not unlimited.” 554
U.S. at 626, 128 S. Ct. at 2816. The Eighth Circuit, having concluded that the
plaintiff’s Fourteenth Amendment right to due process was violated by the
authorities’ refusal to return his gun once the legal basis for seizing it had
evaporated, found no independent violation of the plaintiff’s Second Amendment
right to possess the gun. Walters v. Wolf, 660 F.3d 307, 317-18 (8th Cir. 2011).
Although the court confined its ruling to the facts and did not rule out the
possibility that, under different circumstances, the seizure of a gun might
constitute a Second Amendment violation, id. at 318, it reasoned that where the
plaintiff had been able to vindicate his interest in “a meaningful procedural
mechanism for return of his lawfully seized firearm,” by way of the due process
clause, id. at 317, the seizure of one particular firearm did not otherwise interfere
with his Second Amendment interests: “The defendants’ policy and action
affected one of Walter’s firearms, which was lawfully seized. The defendants did
not prohibit Walters from retaining or acquiring other firearms.” Id. at 318
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(emphasis in original). Cf. Houston v. City of New Orleans, 682 F.3d 361, 363-64
(5th Cir. 2012) (per curiam) (remanding to district court for determination
whether state law permitted state officials to retain plaintiff’s handgun following
entry of nolle prosequi on charges against him, as determination that state law
compelled return of gun would render it unnecessary to decide whether
defendants violated plaintiff’s Second Amendment rights by refusing to return
gun to him); see generally John L. Schwab & Thomas G. Sprankling, Houston,
We Have a Problem: Does the Second Amendment Create a Property Right to a
Specific Firearm?, 112 Colum. L. Rev. Sidebar 158 (2012) (agreeing that Second
Amendment does not encompass right to possess a specific firearm, criticizing
lack of analytic rigor in judicial decisions to date on this subject, and proposing
cautious, minimalist approach to determining scope of Second Amendment).
This is not an issue that we have addressed and it is not one that we will
address here. Beyond a bare-boned contention that the seizure violated her
Second Amendment rights, Sutterfield has not developed a cogent argument as to
the reach and application of the Second Amendment in the law enforcement and
community caretaking context. The issue is a sensitive one, as it implicates not
only the individual’s right to possess a firearm, but the ability of the police to take
appropriate action when they are confronted with a firearm that may or may not
be lawfully possessed, and which, irrespective of the owner’s right to possess the
firearm, may pose a danger to the owner or others.
751 F.3d at 571-72; see also Ellis v. City of Chi., No. 13 C 2382, 2016 WL 212489, at *8 n.9
(N.D. Ill. Jan. 19, 2016) (“Even if Ellis had alleged in his complaint that the police wrongfully
seized his firearm during his arrest, it is not clear that Ellis’s Second Amendment rights would
have been violated in that scenario either. Seizure claims are generally governed by the Fourth
Amendment, not the Second. And the question of whether a seizure may also constitute an
independent violation of an individual’s Second Amendment rights is something that the courts
are just now starting to address. Courts that have addressed this issue seem to agree that such
seizures do not result in a Second Amendment violation.”) (internal citations omitted).
As in Sutterfield, plaintiff fails to develop his argument that the seizure of his gun
violated his Second Amendment rights. He also fails to acknowledge or discuss Sutterfield. The
argument is therefore waived. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011);
Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995) (“[W]hen presented with a
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motion to dismiss, the non-moving party must proffer some legal basis to support his cause of
action. The federal courts will not invent legal arguments for litigants.”) (internal citation
omitted). Alternatively, given the Seventh Circuit’s observation in Sutterfield that the scope of
Second Amendment rights in the law-enforcement and community-caretaking context is “an
issue that is just beginning to receive judicial attention,” 751 F.3d at 571, the Officers would be
entitled to qualified immunity on the claim because the right is not clearly established. See Lovi
v. Vill. of Arlington Heights, 62 F. Supp. 3d 756, 768 (N.D. Ill. 2014). Accordingly, the Court
will dismiss plaintiff’s § 1983 claims with prejudice, to the extent they are premised on the
Second Amendment.
c.

Fourteenth Amendment Due Process

Plaintiff first alleges that the Officers violated his Fourteenth Amendment rights by
ramming the car in which he was riding and by shooting him eight times, thus depriving him of
liberty without due process. (First Am. Compl. ¶ 23(c), (d).) These allegations fail to state a
claim for violation of plaintiff’s Fourteenth Amendment rights because they are premised on
plaintiff’s seizure, which is governed by the Fourth, not the Fourteenth, Amendment. See
Graham v. Connor, 490 U.S. 386, 395 (1989); Doe v. Heck, 327 F.3d 492, 518 n.23 (7th Cir.
2003) (“The Supreme Court has made it abundantly clear that substantive due process may not
be called upon when a specific constitutional provision (here, the Fourth Amendment) protects
the right allegedly infringed upon.”).
Defendants contend that plaintiff also fails to state a Fourteenth Amendment claim based
on the allegation in paragraph 66 of the complaint that they “conspired to cover up their
wrongdoing by filing false reports and spurious charges against the plaintiff.” This allegation
appears within plaintiff’s civil conspiracy count, not any of his § 1983 claims, and his references
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to the Fourteenth Amendment do not refer to the alleged cover-up, so the Court does not
construe the complaint as asserting a Fourteenth Amendment claim related to the alleged
fabrication of evidence. The Court’s conclusion is bolstered by plaintiff’s failure to respond to
defendants’ argument; plaintiff does not address his due process allegations at all in his response.
To the extent that plaintiff is asserting a Fourteenth Amendment claim based on the alleged
cover-up, he has abandoned the claim by failing to respond. See Alioto, 651 F.3d at 721;
Stransky, 51 F.3d at 1335.
Because there are no remaining alleged constitutional violations, plaintiff’s § 1983
claims against the Officer Defendants in Counts I, II, and III of the complaint are dismissed with
prejudice.
2.

State-Law Claims

Plaintiff brings state-law claims against the Officer Defendants for malicious
prosecution,3 false imprisonment, assault and battery, and civil conspiracy. While a two-year
limitations period applies to plaintiff’s § 1983 claims, a “one-year period applies to state-law
claims [against local governmental entities and their employees] that are joined with a § 1983

3

Defendants argue that plaintiff has also failed to state a § 1983 malicious prosecution claim
because such a claim does not exist. The Court does not construe the complaint as attempting to
assert a federal malicious prosecution claim. Plaintiff refers only to “common law malicious
prosecution,” (First Am. Compl. ¶ 23(h)-(j)), and does not label his malicious prosecution counts
as § 1983 claims.
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claim.” Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005) (citing 745 ILCS 10/8-101).
Defendants assert, correctly, that plaintiff’s state-law claims are time-barred.4
Under Illinois law, plaintiff’s battery and assault claim accrued on May 17, 2011, the
date that the incident occurred. See Haynes v. City of Chi., No. 07 C 2231, 2008 WL 1924891,
at *2 (N.D. Ill. Apr. 29, 2008). As for false imprisonment, the statute of limitations began to run
on the same day, the first day of the alleged false imprisonment. See Padilla v. City of Chi., No.
07 C 5253, 2011 WL 3793413, at *7 (N.D. Ill. Aug. 24, 2011) (citing cases). A claim for
malicious prosecution accrues when the criminal proceeding on which it is based has been
terminated in plaintiff’s favor. Ferguson v. City of Chi., 820 N.E.2d 455, 459 (Ill. 2004).
Plaintiff alleges that he was acquitted of attempted murder and aggravated assault on August 18,
2013, so his malicious prosecution claim accrued on that date. His civil conspiracy claim, which
is premised on malicious prosecution, is governed by the same statute of limitations and accrual
date. See Simon v. Nw. Univ., No. 15 C 1433, 2016 WL 1622614, at *7 (N.D. Ill. Apr. 22, 2016)
(citing Mauvais-Jarvis v. Wong, 987 N.E.2d 864, 894 (Ill. App. Ct. 2013) (“Because it is the
underlying tortious acts performed pursuant to the agreement that give rise to a claim for civil
conspiracy, it is logical that a conspiracy claim itself be governed by the statute of limitations for
the underlying tort.”)).
Thus, the latest statute of limitations period applicable to plaintiff’s state-law claims
expired in 2014. Because plaintiff did not file his complaint in this action until January 2015,

4

As will become evident below, the Court is dismissing all of plaintiff’s federal claims. As
a general matter, when all federal claims have been dismissed prior to trial, the federal court should
relinquish jurisdiction over the remaining pendent state claims. Williams v. Rodriguez, 509 F.3d
392, 404 (7th Cir. 2007). But this rule is subject to three recognized exceptions, one of which arises
when the refiling of the state claims is barred by the statute of limitations. Id. Because that
exception applies here, the Court is not relinquishing jurisdiction over plaintiff’s state-law claims.
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well after the expiration of the limitations periods, the state-law claims are untimely.
Accordingly, Counts IV, V, VI, VII, VIII, IX, and XVI are dismissed with prejudice.
C.

The City Defendants’ Motion
McCarthy, Weis, and the City move separately to dismiss the complaint.

In the

complaint, plaintiff asserts § 1983 and respondeat superior claims against these defendants.5 In
his response, plaintiff refers to his respondeat superior claims as Monell claims.

We will

construe the complaint as asserting both types of claim. Because plaintiff has failed to allege an
actionable underlying substantive constitutional injury, he has also failed to allege a
Monell claim for a flawed departmental custom, policy, or practice leading to such an injury.
See, e.g., Treece v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000) (“[I]t is well established in
this Circuit that a municipality’s liability for a constitutional injury requires a finding that the
individual officer is liable on the underlying substantive claim.”) (internal quotation marks and
brackets omitted). Similarly, there can be no respondeat superior liability where there are no
surviving state-law claims. See McGreal v. AT & T Corp., 892 F. Supp. 2d 996, 1018 (N.D. Ill.
2012) (citing Fustin v. Bd. of Educ. of Cmty. Unit Dist. No. 2, 242 N.E.2d 308, 312 (Ill. App. Ct.
1968)); 745 ILCS 10/2-109 (“A local public entity is not liable for an injury resulting from an act
or omission of its employee where the employee is not liable.”). Therefore, Counts XII, XIII,
XIV, and XV are dismissed with prejudice.
As for McCarthy and Weis, in order to state a § 1983 claim against them in their
individual capacity, plaintiff must allege that they were personally involved in the alleged

5

Plaintiff sues McCarthy and Weis in their individual and official capacities. The officialcapacity claims are dismissed with prejudice as redundant of plaintiff’s claims against the City. See,
e.g., Robinson v. Sappington, 351 F.3d 317, 340 (7th Cir. 2003).
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constitutional deprivation. See Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003).
Plaintiff has no surviving claim for a constitutional deprivation, nor does he allege any facts
plausibly suggesting that McCarthy or Weis participated or acquiesced in the events described in
the complaint (and there appears to be no hope of successful amendment in this respect).
Accordingly, Counts X and XI are dismissed with prejudice.
CONCLUSION
The motion of defendants Zydek, Burg, and Zepeda to dismiss the first amended
complaint [28] is granted, and Counts I through IX and XVI are dismissed with prejudice. The
motion of defendants McCarthy, Weis, and the City of Chicago to dismiss the first amended
complaint [29] is granted, and Counts X through XV are dismissed with prejudice. Civil case
terminated.

SO ORDERED.

ENTERED:

August 16, 2016

__________________________________
JORGE L. ALONSO
United States District Judge

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