Klingler v. City Of Chicago et al

Filing 129

MEMORANDUM Opinion and Order.The City of Chicago Defendants' motion to dismiss, R. 90 , is granted in part and denied in part; (2) Defendant Griebel's motion to dismiss, R. 98 , is denied; and (3) the motion to dismiss filed by Will Count y and Will County Sheriff Paul Kaupas, R. 100 , is granted in part and denied in part, as follows: The claims against Will County in Counts VI, VII, and IX of the First Amended Complaint are dismissed with prejudice. Sheriff Kaupas is substituted in his official capacity in the place of Will County in Counts VI and VII of the First Amended Complaint. Plaintiff's Monell claims against Will County Sheriff Kaupas and the City of Chicago in Counts IX and X of the First Amended Complaint are di smissed without prejudice. In all other respects, Defendants' motions to dismiss are denied.Plaintiff may file a motion to amend her Monell claims if she does so on or before March 15, 2017. The motion should attach a proposed amendment and a br ief of no more than five pages explaining how the proposed amendment cures the deficiencies in the current Monell claims. Defendants should not file a brief responding to Plaintiff's motion to amend (should she choose to file one) unless the Court requests a response. Signed by the Honorable Thomas M. Durkin on 2/24/2017:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WHITLEY KLINGER,
Plaintiff,
v.
CITY OF CHICAGO; MAYASOL LLC, d/b/a
MCDONALD’S; CHICAGO POLICE OFFICER
MAAS (Star # 5237); CHICAGO POLICE
DETECTIVE JOHN E.CALLAGHAN
(Star # 20933); COUNTY OF WILL;
SHERIFF OF WILL COUNTY PAUL KAUPAS;
and WILL COUNTY SHERIFF’S DEPUTY
MATTHEW GRIEBEL (ID # 01-913),
Defendants.

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15-CV-1609
Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff brought this action under 42 U.S.C. § 1983 seeking recovery for
alleged violations of her constitutional rights. All but one of the defendants has filed
a motion to dismiss. 1 Defendants’ motions will be granted in part and denied in part
as set forth below.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure challenges the sufficiency of the complaint. See, e.g., Hallinan v.
Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A
complaint must provide “a short and plain statement of the claim showing that the
1

Defendant Mayasol LLC, d/b/a McDonald’s, has not filed a motion to dismiss.

pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant
with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). This standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While “detailed factual allegations” are not required, “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
BACKGROUND
The facts in this section are taken from the allegations in the First Amended
Complaint (accepted as true for purposes of Defendants’ motions) as well as other
filings in this case and documents attached by the parties to their briefs. Matters
outside the complaint are included for background purposes only. The Court’s ruling
on Defendants’ motions to dismiss is based only on Plaintiff’s allegations and

2

matters outside the complaint referenced by Plaintiff that are not contrary to any of
the allegations in the complaint. 2
At 1:30 a.m. on March 16, 2014, Plaintiff was in the women’s restroom at a
McDonald’s restaurant located in the City of Chicago at 3620 North Clark, when
two unknown men entered. Plaintiff asked them to leave, and they did. When
Plaintiff exited the restroom, the same two men were waiting outside and made
improper comments to Plaintiff. Tyler Nunez was present and intervened. He
exchanged words with the two men and then began to move toward the exit with
Plaintiff. As Nunez and Plaintiff were trying to leave, other men approached and
impeded their progress. One of those men shoved Nunez hard from behind. The
St. Patrick’s Day parade in Chicago had taken place that day, and the man was
wearing a kilt and carrying bagpipes. He also had what appeared to be a police star
around his neck. Nunez told the man he did not want to fight. The man told Nunez
“You’re coming with me,” put Nunez in a headlock, and dragged him outside. The
man and another unknown assailant knocked Nunez onto the ground and began
beating him about the face and body. Plaintiff attempted to stop the men from
beating Nunez. The man wearing the kilt punched Plaintiff in the face with a closed
fist. Plaintiff, who had her arm in a sling from a previous injury, was thrown to the
ground by the other assailant. At this point, Plaintiff flagged down Defendant
See Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir. 2012) (“If a
moving party relies on additional materials, the motion must be converted to one for
summary judgment under Rule 56. A plaintiff, however, has much more flexibility
in opposing a Rule 12(b)(6) motion . . . . [She] may elaborate on h[er] factual
allegations so long as the new elaborations are consistent with the pleadings.”)
(internal quotation marks and citations omitted).

2

3

Officer Maas in a nearby marked Chicago police car. Plaintiff explained to Officer
Maas what had happened. Officer Maas spoke to the man in the kilt, and told him
“to leave the scene by getting on the party bus, presumably the vehicle he arrived
in.” R. 62 at 5 (¶ 29). The man took his bagpipes, got on the bus, and was not seen
again. The other assailant also disappeared.
Plaintiff and Nunez were taken to the hospital, where they were treated for
their injuries. Plaintiff later went to the City of Chicago 19th District Police Station
and met with Defendant Detective Callaghan to make a formal complaint arising
out of the incident. Plaintiff’s attempt to file a complaint was “met with apathy and
resistance.” Id. at 5 (¶ 32). When Plaintiff pressed Detective Callaghan further
about investigating her charges, Callaghan threatened to charge Plaintiff with a
crime if she did not drop the matter. Id. at 6 (¶ 34).
A police report filed by Officer Maas after the incident identifies Plaintiff as
the victim of a simple battery. See, e.g., R. 57-1 at 2. The report also identifies a
“witness,” named “P.O. Sean O’Dublan, #1913, Beat: 3100, Chicago, IL.” Id. The
suspect who hit Plaintiff is listed as “unknown” and is said to have fled the scene on
foot. See R. 57-1 at 4. The report goes on to say that an unidentified officer
(referenced as “Beat 1963”) “related to” Officer Maas “that off[-]duty Officer Sean
O’Dublan #1913 observed” Plaintiff and the unknown offender “engaged in an
altercation.” Id. The same unidentified officer (Beat 1963) also related to Maas that
“#1913 P.O. Sean O’Dublin (Witness) did not relate[ ] any other information
regarding the incident.” Id. A later report filed by Detective Callaghan states that

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“P.O. Maas, who was assigned to the paper on the above case, in an attempt to
locate the named witness, P.O. Sean O’Dublin[,] . . . stated, in summary, that he
never interviewed the listed witness O’Dublin and was given the name and
information by a supervisor on the scene.” R. 57-2 at 17.
Approximately a month after the incident, Plaintiff called the Independent
Police Review Authority (IPRA) to register a complaint, alleging that she had been
struck by an unidentified, off-duty Chicago police officer. See R. 57-3 at 2.
Approximately ten months later, Plaintiff filed this lawsuit naming as defendants
the City of Chicago and Chicago Police Officer Maas and Chicago Police Detective
Callaghan (collectively the “City of Chicago Defendants”). Plaintiff also sued the
McDonald’s restaurant where the incident took place (non-moving defendant
Mayasol LLC), and another individual identified as “Chicago Police Officer Sean
O’Dublan.” Plaintiff further alleged that, “[u]pon information and belief, Defendant
Officer Maas failed to obtain Defendant Officer O’Dublan’s correct name, star
number, or contact information, and wrote fictitious information into the police
report.” R. 1 at 5 (¶ 30).
Approximately six months after she filed the original complaint, Plaintiff
initiated discovery in an attempt to identify her alleged assailant who she
understood was most likely a Chicago police officer with the fictitious name of
“O’Dublan.” 3 Plaintiff served the City of Chicago Defendants with written discovery

Plaintiff maintains that she was told on the evening in question that the person
who assaulted her was a Chicago police officer named “Sean O’Dublan, Star
# 1913,” and that when she went to the police department to follow up, she was

3

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requests, and also sent subpoenas to the Naperville Police Department, the
Elmhurst Police Department, and the Emerald Society. 4 See R. 28 at 1-2.
Approximately two months later, the parties appeared in court on a motion to
compel filed by Plaintiff against the City of Chicago Defendants. Plaintiff sought
responses to her written discovery requests, which were more than thirty days past
due. Plaintiff argued that the City of Chicago Defendants’ failure to timely respond
to her discovery requests was impeding her ability to identify her assailant.
Although she had received a response to her subpoena from the Emerald Society,
that response included a long list of potential suspects, all of whom had participated
again given the same information. R. 55 at 4 (¶ 11). The City of Chicago Defendants
dispute that Plaintiff was told that O’Dublan was the suspect who struck her,
pointing to the police report as proof that O’Dublan was believed to be a witness
rather than a suspect. Whether the City of Chicago Defendants were aware that
O’Dublan was a suspect, not a witness as the police report states, is one of the main
issues in contention with regard to Plaintiff’s claims against those defendants, and
therefore, for purposes of these motions to dismiss, the Court must accept as true
Plaintiff’s statement regarding what she was told.
The Emerald Society is an organization of American police officers or fire fighters
of Irish heritage. See https://en.wikipedia.org/wiki/Emerald_Society (last visited
on February 15, 2017). Plaintiff sent subpoenas to the Emerald Society, as well as
the other suburban law enforcement agencies, because she apparently knew it was
possible that the officer who struck her was not a Chicago police officer. Because
Plaintiff’s assailant was wearing a kilt, carrying a bagpipe, and had an officer badge
around his neck, she apparently suspected that he was a member of the Bagpipes
and Drums of the Emerald Society of the Chicago Police Department, which had
been performing in the St. Patrick’s Day parade that day. The Bagpipes and Drums
of the Emerald Society consists of “over one hundred . . . active and retired Law
Enforcement Officers from the rank & file of Federal Agencies, State, County(s),
City of Chicago, and numerous Suburban Police Departments, joined for the
purpose of promoting the appreciation of piping music. To this end, the band
performs at numerous parades throughout the year, highlighted by the St. Patrick’s
Day events in the Chicago Loop and Southside.” https://www.facebook.com/TheBagpipes-and-Drums-of-the-Emerald-Society-Chicago-Police-Department-176166942
419792/about/ (last visited on February 15, 2017).
4

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in the St. Patrick’s Day parade on the day in question and could have been wearing
a kilt and an officer badge. Plaintiff claimed that she needed the written discovery
from the City of Chicago Defendants before she could proceed with depositions and
other discovery to determine the exact identity of the “Officer O’Dublan” who
assaulted her.
The Court granted Plaintiff’s motion to compel and directed the City of
Chicago Defendants to respond to Plaintiff’s written discovery requests on or before
November 9, 2015. R. 30. Despite the Court’s order, the City of Chicago Defendants
did not provide their responses until November 17, 2015. See R. 37 at 2 (¶ 13).
Moreover, the responses they ultimately served on Plaintiff contained numerous
objections, leading to an exchange of letters and emails over the course of the next
several months (through the end of 2015) in an attempt to resolve the parties’
differences concerning the scope of discovery that would be provided by the City.
Because of their disputes over the scope of written discovery, the parties postponed
depositions that had been scheduled and Plaintiff sought and obtained an extension
of the discovery deadline. Several more months later (through early spring 2016),
on-going issues over the scope of Plaintiff’s written discovery requests still had not
been resolved, prompting another extension of the discovery deadline. See R. 34.
Almost two months after that (and two weeks prior to the extended May 2016
discovery deadline), Plaintiff filed a second motion to compel and a third motion to
extend the discovery deadline. See R. 37, R. 39.

7

At the hearing on Plaintiff’s latest motions (held on May 26, 2016), the Court
noted that it was losing patience with what seemed like unnecessary delays in
discovery. The City maintained in response that Plaintiff was going about the
process of identifying the unknown “Officer O’Dublan” wrong, and that her
discovery requests to which the City had not yet responded were not likely to be
effective in that regard. The Court extended the discovery deadline to July 12, 2016,
ordered the City of Chicago to produce photographs of certain Chicago police
officers, continued Plaintiff’s second motion to compel, and directed the parties to
work together with the mutual goal of determining the identity of “Officer
O’Dublan” before the new discovery deadline. See R. 42 (Agreed Order dated May
27, 2016).
In late June 2016, Plaintiff filed a motion seeking leave to file the First
Amended Complaint, which

revealed that Plaintiff had recently been able to

identify her assailant without the aid of discovery from the City of Chicago
Defendants. Plaintiff learned the identity of “Officer O’Dublan” from “a third party,”
who told Plaintiff that an IPRA investigation conducted shortly after the incident
had determined that “Chicago Police Officer Sean O’Dublan” was in reality a Will
County sheriff’s deputy named Matthew Griebel. See R. 55 at 4 (¶¶ 13-15). Plaintiff
sought to amend the complaint by naming Officer Griebel in place of “Officer
O’Dublan.” Plaintiff contended that she had not been able to identify Defendant
Griebel sooner because the City of Chicago Defendants had failed to produce the
IPRA investigative report despite Plaintiff having asked for it in her written

8

discovery requests. Id. at 5 (¶¶ 16-17). Plaintiff also filed a motion for sanctions,
which argued that, as of July 1, 2016 (more than 16 months after this lawsuit was
filed), the City of Chicago Defendants had failed to produce any documents in
response to Plaintiff’s written discovery requests, had failed to identify a single
witness or document in support or in defense of any claim in the case, and had
failed to comply with the Court’s most recent discovery order to produce certain
officer photographs. R. 58 at 1. Emphasizing the City of Chicago Defendants’
repeated past failures to comply with the Court’s discovery orders, Plaintiff pointed
out that the information she had been seeking for the past year and a half
regarding Defendant Griebel’s identity had been available to the City the entire
time this lawsuit had been pending yet Plaintiff was only able to learn of it from a
third party. Id. at 5.
In their opposition to Plaintiff’s motion to amend the complaint, the City of
Chicago Defendants admitted that an IPRA investigation indeed had been
conducted and that the IPRA report of that investigation contained the information
Plaintiff had learned from the third party. R. 57 at 3. 5 The City of Chicago

The City of Chicago Defendants attached a copy of the IPRA Summary Report
Digest to their response to Plaintiff’s motion seeking leave to file the First Amended
Complaint. The report does in fact show that the City of Chicago had at least
constructive knowledge of Officer Griebel’s identity all along. The report indicates
that “[p]olice responded to the scene and identified the male in the kilt [who had
struck Plaintiff] as ‘Sean Odubagan’ or ‘PO Sean Odublan, #1913.’” R. 57-3 at 3. The
IPRA investigator notes that the police report “identif[ies] the individual as a
witness, and as wearing an Emerald Society Pipes and Drums uniform,” and that
he “is also described as wearing a police star around his neck.” Id. The investigator
states in the report that he showed a security video from the McDonald’s where the
incident took place to management within the Emerald Society, who identified the

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Defendants further admitted that they had not turned over the IPRA report to
Plaintiff despite her request in discovery for it. Id. They stated, however, that they
had requested records from the IPRA but were told that none existed. The City of
Chicago Defendants argued that the records they recently discovered had not been
“flagged” in response to their previous request for documents from the IPRA
because the investigation conducted by the IPRA “did not involve Maas or
Callaghan.” Id. The City of Chicago Defendants argued, therefore, that their failure
to provide Plaintiff with discovery relating to the IPRA investigation was Plaintiff’s
fault because Plaintiff knew from the City’s written discovery responses that it was
unaware of the existence of any IPRA investigation and yet she never told the City
that she knew “of an IPRA investigation that did not involve Callaghan or Maas.”
R. 58 at 1 (emphasis added). The City of Chicago Defendants did not explain,
however, why Plaintiff should have known that the IPRA investigation she
reportedly told them she believed had taken place did not reference either Detective
Callaghan or Officer Maas. In addition, the City of Chicago Defendants claimed to
have requested IPRA files relating not only to Detective Callaghan and Officer
male in the video wearing the kilt as Will County Deputy Sheriff Matthew Griebel.
Id. at 4. The Emerald Society provided the investigator with a photograph of
Griebel via text, and explained that the Irish surname used by Griebel for official
activities was “O’Dubhagain.” Id. The IPRA investigator then contacted the Will
County Sheriff’s Department and spoke with the Watch Commander, who
confirmed Griebel’s position with that agency and provided Griebel’s identification
number. Id. The IPRA investigator concludes in the report that, because the suspect
was not a Chicago police officer, the information obtained in the investigation
should “be forwarded to the Will County Sheriff’s Department to be pursued in the
manner they deem appropriate.” Id. at 5. The date appearing on the report digest is
approximately one month after the incident took place.
10

Maas but to Plaintiff as well. But they could not explain why their previous request
for IPRA files referencing Plaintiff by name (or even the date of the incident) did not
turn up any files. 6
On July 5, 2016, the Court granted Plaintiff’s motion to file the First
Amended Complaint as well as her motion for sanctions. R. 60. The Court noted at
the sanctions hearing that the recently discovered IPRA report shows that
investigating officers were able to identify Officer Griebel by his real name within
weeks of the incident but that Plaintiff had been trying to do the same through
discovery in this litigation with no success for over a year and a half. 7 The First
Amended Complaint added Defendant Griebel as a defendant, and a new discovery
schedule was set. Defendants then filed the present motions to dismiss, which were
not fully briefed until January 18, 2017. On February 3, 2017, the Court granted
another motion to extend the discovery deadline, and, on February 15, 2017, it
provided the parties with an oral preview of its ruling on the motions to dismiss,
stating that a written opinion would follow.
The City of Chicago Defendants pointed out that the IPRA conducts more than
5,000 investigations per year. See R. 57 at 3. But they did not say how many of
those 5,000 investigations were about an incident either involving an alleged victim
with Plaintiff’s name or one that took place on March 16, 2014. Indeed, the City of
Chicago Defendants admitted that they recently discovered the missing IPRA file by
searching under Plaintiff’s name, which they claimed to have done before but which
they also claimed did not lead to the discovery of any investigation files.

6

A number of other recent cases in this district also have addressed difficulties
§ 1983 plaintiffs have experienced with obtaining relevant discovery from the City
of Chicago, see, e.g., Colyer v. City of Chicago, 2016 WL 25710 (N.D. Ill. Jan. 1,
2016), including specifically discovery related to an IPRA investigation, see, e.g.,
Young v. City of Chicago, 2017 WL 25170 (N.D. Ill. Jan. 3, 2017).

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DISCUSSION
A.

DEPUTY SHERIFF GRIEBEL

Defendant Griebel’s primary argument for dismissal of Plaintiff’s claims
against him is that they are barred by the statute of limitations. 8 Thus, Griebel
argues that Plaintiff’s § 1983 excessive force and conspiracy claims (Counts I and
III), are barred by Illinois’ two-year personal injury statute of limitations. See
Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005). Griebel also argues that
Plaintiff’s state law battery and IIED claims (Counts VI and VII) are barred by the
one-year statute of limitations found in the Illinois Tort Immunity Act, 745 Ill.
Comp. Stat. Ann. § 10/8-101. 9
The incident at issue took place on March 16, 2014. See R. 62 at 3 (¶ 10). The
original complaint was filed on February 21, 2015, but it did not name Deputy
Griebel as a defendant. Instead, the original complaint named “Chicago Police
Griebel also adopts the arguments of the City of Chicago Defendants regarding
whether Plaintiff’s civil conspiracy and IIED claims are plausibly alleged. The
Court will address those issues later in this opinion.
8

Griebel does not address the issue of whether the one-year statute of limitations of
the Illinois Tort Immunity Act even applies here. “Not every action taken by a state
official is considered to have occurred under color of state law.” Estate of Sims ex rel.
Sims v. Cnty. of Bureau, 506 F.3d 509, 515-16 (7th Cir. 2007). It is unclear at this
time whether Defendant Griebel was acting under color of state law or simply as a
private citizen in relation to the events at issue. See id. (“An action is taken under
color of state law if it involves a [m]isuse of power, possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state
law. Whether a particular action was under color of state law depends largely on
the nature of the specific acts the police officer performed, rather than on merely
whether he was actively assigned at the moment to the performance of police
duties.”) (internal quotation marks and citation omitted). But whether the one-year
or two-year statute of limitations applies does not affect the Court’s resolution of the
current motion.

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Officer Sean O’Dublan (Star # 1913)” as the officer who struck plaintiff. See R. 1 at
1. Plaintiff learned Griebel was O’Dublan shortly before June 22, 2016. There is no
doubt that Plaintiff intended to name Griebel as a defendant in the original
complaint, which was timely filed on February 21, 2015. He was named, however,
under the alias or fictitious name of “Officer O’Dublan.” Griebel was named by his
correct name for the first time in the First Amended Complaint, which was filed on
July 6, 2016. The two-year statute of limitations ran about 3 ½ months earlier, on
March 16, 2016, and the one-year statute of limitations ran on March 16, 2015, just
after the original complaint was filed.
1.

MISNOMER DOCTRINE

Plaintiff argues that the misnomer doctrine applies to allow relation back of
the late naming of Griebel in the First Amended Complaint to the timely filing of
the original complaint. That doctrine is codified in an Illinois statute, which
provides that “[m]isnomer of a party is not a ground for dismissal but the name of
any party may be corrected at any time, before or after judgment, on motion, upon
any terms and proof that the court requires.” 735 Ill. Comp. Stat. Ann. § 5/2-401(b).
The Seventh Circuit has described the misnomer doctrine as follows:
A misnomer is to be distinguished from a case of mistaken
identity. “Misnomer” denotes the case in which the
plaintiff has the wrong name of the right party, while in a
case of mistaken identity the plaintiff has named the
wrong party. In that event the plaintiff must serve the
correct defendant before the statute of limitations expires;
a misnomer can be corrected at any time, provided that
the plaintiff serves the defendant with reasonable
promptness, even if it is after the statute of limitations
has run (as in a case in which the complaint was filed just
13

before it ran). A misnomer is nothing more than an error
in the drafting of the complaint, and it ought to be
corrigible by amendment, whereas in a case of mistaken
identity the plaintiff has sued the wrong person, and he
cannot be allowed by doing that to prevent the right
person from pleading the statute of limitations—
otherwise, as we have noted, the plaintiff could name
“John Doe” in the complaint and take the next twenty
years to find out who the actual tortfeasor was.
Athmer v. C.E.I. Equip. Co. Inc., 121 F.3d 294, 296 (7th Cir. 1997) (citations
omitted).
To begin with, neither party has clarified to the Court whether the misnomer
doctrine, which is an Illinois rule, applies in federal court to Plaintiff’s federal
and/or state law claims. But if it does, the Seventh Circuit held in Athmer that the
case before it was “not a misnomer case” because “[t]he plaintiff had no idea at the
time he filed the original complaint who the tortfeasor was that he was trying to
sue. He knew that it was whoever had manufactured the truck bed but he did not
know the identity of that manufacturer. It could have been anyone in the world, as
far as the plaintiff knew.” Id. at 296. The same can be said here. At the time
Plaintiff filed suit, she had no idea who the officer was who struck her; as far as
Plaintiff knew, it could have been anybody. Indeed, Plaintiff alleged as much in the
complaint when she stated that defendants had given her a fictitious name for her
assailant. See R. 1 at 5 (¶ 30). Thus, this is not a misnomer case.
2.

RELATION-BACK UNDER RULE 15(c)(1)(C)

Given that the misnomer rule does not apply, the Court looks to Rule 15(c) of
the Federal Rules of Civil Procedure to see whether Plaintiff’s claims against

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Griebel can be said to “relate back” to the timely filing of the original complaint.
Rule 15(c) allows relation-back if (1) the amendment asserts a claim that arose out
of the conduct or occurrence set out in the original pleading (Fed. R. Civ.
P. 15(c)(1)(B)); (2) Griebel received such notice of the action that he will not be
prejudiced in defending on the merits (Fed. R. Civ. P. 15(c)(1)(C)(i)); and (3) Griebel
knew or should have known that the action would have been brought against him
but for the mistake concerning his identity (Fed. R. Civ. P. 15(c)(1)(C)(ii)).
Griebel does not dispute that the first requirement has been met and makes
only conclusory arguments for why the second requirement has not been met. Thus,
the Court will focus on the third requirement. Griebel argues that the third
requirement is not satisfied because Plaintiff did not make a mistake concerning his
identity but rather only lacked knowledge about who he was. This Court’s recent
opinion in White v. City of Chicago, 2016 WL 4270152 (N.D. Ill. Aug. 15, 2016),
contains an extensive discussion of the mistake issue to which Griebel alludes, in
which the Court concluded that the Supreme Court’s decision in Krupski v. Costa
Crociere S.p.A., 560 U.S. 538 (2010), has changed the old “lack of knowledge is not a
mistake” rule for purposes of Rule 15(c)(1)(C) relation-back. See id. at 15-21. The
Court adopts the same reasoning here. After Krupski, the proper inquiry under
Rule 15(c)(1)(C) focuses not on whether the plaintiff made a mistake about the
identity of the defendant who was misnamed but whether the defendant who was
misnamed knew or should have known that the action would have been brought
against him had the plaintiff known the truth about his identity. Id.; see also Ryan

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v. City of Chicago, 2016 WL 6582570, at *2 (N.D. Ill. Nov. 7, 2016); Cheatham v.
City of Chicago, 2016 WL 6217091, at *3 (N.D. Ill. Oct. 25, 2016). 10
Rather than focusing on what he knew or should have known, Griebel mostly
argues about what Plaintiff knew or should have known. Even if that were the
correct inquiry, the Court could not decide the question on a motion to dismiss
because of numerous factual disputes regarding what Plaintiff should have known.
But in any event, what Plaintiff should have known is not the relevant inquiry.
Griebel only touches upon what he knew or should have known in a single
conclusory sentence stating: “It can hardly be considered reasonable to assume that
Defendant Deputy Sheriff could have expected to be named in a lawsuit for
allegedly attempting to break up a fight, being punched while trying to do so, and
having an object thrown at him.” R. 98 at 7. This statement ignores of course that
the Court must accept Plaintiff’s version of the facts in ruling on Griebel’s motion to
dismiss, and Plaintiff’s version is inconsistent with Griebel’s statement. Moreover,
Griebel’s reliance on what he believes is or is not “reasonable to assume” regarding
what he should have known is misplaced. The question is not what is “reasonable to
In addition to the above, the Court also relies on Rule 15(c)(1)(A), which sets out
an alternative basis for relation back pursuant to Illinois law (because Illinois law
provides the applicable statute of limitations here). Illinois law allows relation back
without regard to whether the plaintiff’s failure to name the correct defendant was
a mistake due to lack of knowledge. The Illinois case law to that effect also is set out
in the Court’s opinion in White, 2016 WL 4270152, at *20-21. The Illinois appellate
court decisions cited in the White opinion post-date Krupski and consider the effect
of that Supreme Court case on Illinois’ interpretation of its own relation back rule.
Defendant Griebel cites to earlier Illinois case law in his brief, but the post-Krupski
Illinois cases in White show those earlier cases are no longer controlling. See id.;
Cheatham, 2016 WL 6217091, at *4.
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16

assume” about what Griebel knew, but what he in fact knew (or should have
known).
The issue of what Griebel knew or shown have known has not been
sufficiently addressed in the current briefing, and cannot in any event be answered
on the pleadings. To the extent that the pleadings reveal anything on that issue, it
would be that Defendant Griebel knew or should have known he was the intended
defendant in the original complaint because he struck Plaintiff with his fist
(assuming the truth of Plaintiff’s allegations). One could also infer that Defendant
Griebel knew or should have known he was the intended defendant if he uses the
alias or told anyone the evening in question that his name was something akin to
“Sean O’Dublan.” There are other facts outside the pleadings to which Plaintiff
refers in her response to the motion to dismiss that would also support her
argument, including the results of the IPRA investigation showing that the Will
County Sheriff’s Department was contacted and informed about the incident and
Griebel’s involvement in it shortly after it occurred. Plaintiff need not have alleged
these facts because the statute of limitations is an affirmative defense that she is
not required to have anticipated. See, e.g., Covington v. Mitsubishi Motor Mfg. of
Am., Inc., 154 Fed. App’x 523, 525 (7th Cir. 2005). Griebel argues that Plaintiff has
failed to present any evidence to support her claim that he knew or should have
known he was the alleged assailant, R. 124 at 5, but that argument is without merit
because Plaintiff does not have to present evidence at this stage in the proceedings.
See Gulley v. Moynihan, 2011 WL 2461813, at *4 (N.D. Ill. June 17, 2011) (“whether

17

a plaintiff will be able to respond to the statute-of-limitations defense . . . will
require evidence that is not required at the motion-to-dismiss stage”) (citing Reiser
v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004)). In short, the
Court cannot rule as a matter of law that relation back under Rule 15(c)(1)(C) would
not apply here. Therefore, Griebel is not entitled to dismissal of the complaint at
this stage of the proceedings on the basis of the statute of limitations having run.
3.

EQUITABLE ESTOPPEL, EQUITABLE TOLLING,
FRAUDULENT CONCEALMENT

AND

Even apart from the relation-back principles noted above, the Court agrees
with Plaintiff that the allegations in the First Amended Complaint regarding a
conspiracy among the various defendants to suppress Griebel’s identity provides a
factual basis for applying one or more of the doctrines of equitable estoppel,
equitable tolling, or fraudulent concealment, to toll the running of the statute of
limitations from the date the incident took place through sometime in June 2016,
when Plaintiff learned Griebel’s true name. The First Amended Complaint was filed
only a month after Plaintiff learned that “Officer O’Dublan” was really Officer
Griebel, and thus would be timely if any of these equitable doctrines were to apply.
Griebel argues that tolling should not apply because Plaintiff has not been
diligent in discovering his identity. Aside from the fact that this argument involves
disputed issues of fact that cannot be resolved on a motion to dismiss, see Gulley,
supra, 2011 WL 2461813, the history of this litigation with which this Court is
familiar shows otherwise. Plaintiff ultimately obtained Griebel’s name from a third
party after (1) serving the City of Chicago Defendants with discovery requests,
18

(2) serving subpoenas on various suburban law enforcement agencies and the
Emerald Society, and (3) filing two motions to compel against the City of Chicago
Defendants. Griebel cites to the fact that Plaintiff knew all along that the officer
who struck her was a member of the Emerald Society, arguing that this knowledge
was enough to have led her to his identity had she been diligent. But as noted
previously, Plaintiff’s allegations only show that she suspected that O’Dublan might
not be a Chicago police officer, not that she knew for certain he was not. Moreover,
the information Plaintiff received from the Emerald Society included over 70 names
of officers, any one of whom could have been the person she was seeking. See R. 1241 at 4. Plaintiff made numerous efforts over the course of more than a year of
litigation to obtain information from the City of Chicago Defendants to help her
narrow down that list, including photographs, but ultimately was able to learn
Griebel’s identity only through her own independent efforts.
Moreover, even if the Court were to agree that as of the date Plaintiff
received a response to the Emerald Society subpoena she “should have known” that
the true identity of “Officer O’Dublan” was Defendant Griebel, the statute of
limitations would have begun to run on that date. The exact date Plaintiff received
information from the Emerald Society is not in the record, but, according to Griebel,
it was in September 2015. See R. 124 at 4. Even if the Court could consider this
information (which is outside the complaint), the statute of limitations would not
have run until either September 2016 (one-year statute) or September 2017 (two-

19

year statute). Plaintiff’s First Amended Complaint was filed in July 2016, and
therefore was timely even applying Griebel’s discovery theory. 11
In sum, for all of the above reasons, Defendant Griebel’s motion to dismiss
based on the statute of limitations is denied.
B.

WILL COUNTY AND WILL COUNTY SHERIFF PAUL KAUPAS
1.

WILL COUNTY

Will County argues that it is not liable under either Monell v. Department of
Social Services of City of New York, 436 U.S. 658 (1978), or principles of respondeat
superior, for the acts or omissions of Will County Sheriff Paul Kaupas and/or
Deputy Sheriff Matthew Griebel. See R. 100 at 3 (citing Moy v. Cnty. of Cook, 640
N.E.2d 926, 931 (Ill. 1994) (“The sheriff is a county officer and, as such, is not in an
employment relationship with the County of Cook. Therefore, the county may not be
held vicariously liable for the sheriff’s alleged negligent conduct.”)); see also
Martinez v. Sgt. Hain, 2016 WL 7212501, at *4 (N.D. Ill. Dec. 13, 2016) (“In Illinois,
a county sheriff is an independently elected county officer and is not an employee of
the county in which the sheriff serves. . . . Accordingly, courts routinely dismiss
Monell claims against counties predicated on alleged misconduct by the sheriff’s
office.”). Plaintiff concedes Will County’s argument. See R. 121 at 23. Therefore, Will

Griebel apparently believes that Plaintiff should have sent the subpoena to the
Emerald Society sooner, and that by waiting until August 2015 to do so, Plaintiff
missed at least the one-year statute of limitations. That argument again presumes a
number of facts outside the complaint which are not before the Court for purposes of
Griebel’s motion to dismiss.
11

20

County will be dismissed with prejudice as a defendant from Counts VI, VII, and IX
of the First Amended Complaint.
Will County admits, however, that Plaintiff states a valid indemnity claim
against it based on Carver v. Sheriff of La Salle County, 787 N.E.2d 127, 138 (Ill.
2003), which held that, under Illinois law, “the county is obligated to provide funds
to the county sheriff to pay official capacity judgments entered against the sheriff’s
office.” See R. 100 at 2 (¶ 5) (citing Carver v. Sheriff of LaSalle Cnty., Ill., 324 F.3d
947, 948 (7th Cir. 2003) (per curiam)); see also Askew v. Sheriff of Cook Cnty., Ill.,
568 F.3d 632, 636 (7th Cir. 2009) (holding that, because Illinois law requires the
county to pay, the county “is a necessary party in any suit seeking damages from an
independently elected county officer (sheriff, assessor, clerk of court, and so on) in
an official capacity”). Therefore, Will County will remain a defendant in this case as
to Count V of the First Amended Complaint.
2.

WILL COUNTY SHERIFF PAUL KAUPAS

Sheriff Kaupas argues that Plaintiff has failed to allege a plausible Monell
claim against him. The Court will address Sheriff Kaupas’s Monell argument later
in this opinion. In addition to her Monell claim, Plaintiff also appears to argue in
her brief that the Sheriff is liable under the doctrine of respondeat superior for her
state law battery and IIED claims against Defendant Griebel in Counts VI and VII.
See R. 121 at 23. The First Amended Complaint, however, only mentions Will
County in these two counts. See R. 62 at 10-11. Plaintiff either erroneously named
Will County in place of Sheriff Kaupas or else assumed that Will County and the

21

Will County Sheriff’s Office was the same defendant. Nonetheless, the Sheriff
admits in his brief that he is a proper defendant in his official capacity in Counts VI
and VII in place of Will County. See R. 100 at 4 (“the proper party defendant for
Plaintiff’s respondeat superior claims . . . is the Will County Sheriff’s Office, not Will
County.”). Therefore, the Court will substitute Sheriff Kaupas in his official capacity
in the place of Will County in Counts VI and VII of the First Amended Complaint.
C.

CITY OF CHICAGO DEFENDANTS

The City of Chicago Defendants argue that dismissal is appropriate for
Plaintiff’s § 1983 claim and each of Plaintiff’s state tort law claims. The Court will
address each of the City of Chicago Defendants’ arguments in turn.
1.

COUNT II—§ 1983 CLAIM

Section 1983 provides a civil cause of action to any citizen of the United
States against any person who, under color of state law, deprives the citizen of “any
rights, privileges, or immunities secured by the Constitution and laws” of the
United States. 42 U.S.C. § 1983. To succeed on a § 1983 claim, a plaintiff must
prove two elements: (1) that he was deprived of a right secured by the Federal
Constitution or laws of the United States; and (2) that he was subjected to this
deprivation by a person acting under the color of state law. West v. Atkins, 487 U.S.
42, 48 (1988). Section 1983 “is not itself a source of substantive rights,” but merely
provides “a method for vindicating federal rights elsewhere conferred.” Baker v.
McCollan, 443 U.S. 137, 144, n.3 (1979). In addressing constitutional claims
brought under § 1983, therefore, “analysis begins by identifying the specific

22

constitutional right allegedly infringed.” Graham v. Connor, 490 U.S. 386, 394
(1989); Baker, 443 U.S. at 140 (the “first inquiry” is “to isolate the precise
constitutional violation with which [the defendant] is charged”).
The City of Chicago Defendants argue Plaintiff’s § 1983 claim against them is
legally deficient because Plaintiff has not identified a constitutional right that they
allegedly infringed. The Court begins by noting “[d]eplorable conduct by police
officers is not alone enough under section 1983 for an actionable deprivation of a
plaintiff’s right to seek judicial relief.” Rainey v. City of Chicago, 2013 WL 941968,
at *12 (N.D. Ill. Mar. 11, 2013). In addition, the Court notes that, while Plaintiff
must allege a factual basis for finding that one or more of her constitutional rights
have been violated by the police conduct at issue, she need not correctly identify the
constitutional right in her complaint. See Johnson v. City of Shelby, 135 S. Ct. 346,
346 (2014) (per curiam) (summarily reversing a decision of the Court of Appeals for
the Fifth Circuit, stating that the Federal Rules of Civil Procedure “do not
countenance dismissal of a complaint for imperfect statement of the legal theory
supporting the claim asserted”). Plaintiff’s § 1983 claim against the City of Chicago
Defendants is found in Count II, which Plaintiff titles “Failure to Prosecute.” As the
City of Chicago Defendants correctly point out, a mere “failure to prosecute” does
not violate the constitution. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619,
(1973) (“a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another”). Nor do the police violate the constitution if they simply
fail to make a proper investigation of a suspected crime. See Rossi v. City of

23

Chicago, 790 F.3d 729, 735 (7th Cir. 2015) (holding that the plaintiff “does not have
a constitutional right to have the police investigate his case at all, still less to do so
to his level of satisfaction”). The Court addresses below, however, three other
potential legal theories, which are either directly addressed by the parties or else
alluded to in the complaint and/or briefs and which might support Plaintiff’s § 1983
claim based on the City of Chicago Defendants’ alleged cover-up of Defendant
Griebel’s identity. 12
a.

SELECTIVE PROSECUTION

Plaintiff argues that the alleged facts state a constitutional violation of the
Equal Protection Clause of the Fourteenth Amendment. In support of this
argument, Plaintiff cites to the Seventh Circuit’s decisions in Esmail v. Macrane, 53
F.3d 176 (7th Cir. 1995), and Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir.
1998), aff'd, 528 U.S. 562 (2000). In Esmail, the court differentiated an equal
protection claim based on a theory of failure to prosecute and an equal protection
Although Plaintiff relies on § 1983 for stating a constitutional claim based on the
alleged police cover-up by the City of Chicago Defendants, another potential vehicle
for asserting that claim is 42 U.S.C. § 1985(2), which prohibits conspiracies to
obstruct the course of justice in state courts. The problem in this case with a
§ 1985(2) claim, however, is that it requires proof that the obstruction of justice was
motivated by racial or other class-based animus. See Wright v. Ill. Dep’t of Children
& Family Servs., 40 F.3d 1492, 1507 (7th Cir. 1994) (“a plaintiff must allege classbased animus to state a claim [under § 1985(2)] for denial of access to state courts”)
(citing Griffin v. Breckenridge, 403 U.S. 88 (1971)); see also Bell v. Weis, 2015 WL
4972467, at *3 (N.D. Ill. Aug. 19, 2015) (“If the obstruction of justice is alleged to
have occurred in a state-court proceeding, as here, the plaintiff must plead a raceor class-based animus to state a claim.”). Plaintiff has not alleged any class-based
animus, and therefore her factual allegations of an obstruction of justice against the
City of Chicago Defendants must stand or fall on whether she has alleged a
constitutional deprivation cognizable under § 1983.
12

24

claim based on a theory of selective prosecution. 53 F.3d at 178-79. The former, the
court explained, was not a valid legal theory despite the fact that a failure to
prosecute undeniably results in unequal treatment. 13 But a claim of selective
enforcement is different, the court said, than a claim of nonenforcement: “The
charge here is that a powerful public official picked on a person out of sheer
vindictiveness. . . . [W]here the decision to prosecute is made either in retaliation for
the exercise of a constitutional right, such as the right to free speech or to the free
exercise of religion, or because of membership in a vulnerable group,” an equal
protection claim arises. Id. at 179; see also Olech, 160 F.3d at 388 (“the ‘vindictive
action’ class of equal protection cases requires proof that the cause of the
differential treatment of which the plaintiff complains was a totally illegitimate
animus toward the plaintiff by the defendant”); La Playita Cicero, Inc. v. Town of
Cicero, Ill., 175 F. Supp. 3d 953, 967 (N.D. Ill. 2016) (“The government may not
selectively enforce a law against someone based on his race or his exercise of a
constitutional right without violating the Equal Protection Clause.”) (citing Esmail
and Wayte v. United States, 470 U.S. 598, 608 (1985)).
Plaintiff argues that she has stated a selective prosecution claim because she
alleges that, when she went to the police station the day after the incident to make
See Esmail, 53 F.3d at 178-79 (“The resulting pattern of nonenforcement may be
random, or an effort may be made to get the most bang for the prosecutorial buck by
concentrating on the most newsworthy lawbreakers, but in either case the result is
that people who are equally guilty of crimes or other violations receive unequal
treatment, with some being punished and others getting off scot-free. That form of
selective prosecution, although it involves dramatically unequal legal treatment,
has no standing in equal protection law.”).
13

25

a formal complaint against Griebel, Detective Callaghan told her not to pursue the
matter and then threatened to charge her with a crime if she did not forgo the
investigation. Under this theory, only Detective Callaghan, and not Officer Maas,
would be a proper defendant under Count II. Moreover, there is no allegation here
that Detective Callaghan followed through on his threat to charge Plaintiff with a
crime. Plaintiff has cited no case law that would support the view that a claim for
selective prosecution exists where there has been no prosecution. Accordingly, the
Court declines to rely on Plaintiff’s theory of selective prosecution to support
Plaintiff’s claim against the City of Chicago Defendants as alleged in Count II of the
First Amended Complaint.
b.

RETALIATION FOR PLAINTIFF’S EXERCISE OF
HER FIRST AMENDMENT RIGHTS

Even though the Court finds Plaintiff’s selective enforcement theory
inapplicable on the facts alleged here, a slightly different but overlapping theory is
whether Detective Callaghan’s alleged threat constituted retaliation for Plaintiff’s
exercise of her First Amendment rights. See Thayer v. Chiczewski, 705 F.3d 237,
255 (7th Cir. 2012) (noting that First Amendment retaliation claims and class-ofone equal protection claims may “coalesce” to such an extent that they either stand
or fall together, but nevertheless addressing the two theories separately). Plaintiff
appears to assert this theory in the context of arguing her equal protection claim.
See R. 121 at 22 (“[the City of Chicago] Defendants’ refusal to prosecute Defendant
[Griebel] and attempt to instead prosecute [Plaintiff] as retaliation for exercising
her constitutional rights amounts to selective prosecution”).
26

“The law is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions . . . for
speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). To make out a prima
facie case of retaliation in violation of the First Amendment, Plaintiff must show
that (1) she engaged in activity protected by the First Amendment; (2) she suffered
a deprivation that would likely deter First Amendment activity; and (3) the First
Amendment activity was at least a motivating factor behind the deprivation
Plaintiff was made to suffer. Thayer, 705 F.3d at 255; Gomez v. Randle, 680 F.3d
859, 866 (7th Cir. 2012).
Plaintiff has alleged that she engaged in First Amendment activity when she
met with Detective Callaghan to pursue her criminal complaint against Griebel. See
Estate of Morris ex rel. Morris v. Dapolito, 297 F. Supp. 2d 680, 692 (S.D.N.Y. 2004)
(holding that student’s “actions in seeking the criminal prosecution of [the teacher
who assaulted him] were protected by the First Amendment”) (quoting Gagliardi v.
Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (“The rights to complain to public
officials and to seek administrative and judicial relief are protected by the First
Amendment.”) (citing United Mine Workers v. Ill. Bar Assoc., 389 U.S. 217, 222
(1967) (the right “to petition for a redress of grievances [is] among the most precious
of liberties safeguarded by the Bill of Rights”))). Given that Plaintiff was not
charged with any crime when the incident took place, she also has alleged sufficient
facts from which to infer that Detective Callaghan’s threat to prosecute her was
motivated by her First Amendment activity of seeking to pursue charges against

27

Griebel. See Gagliardi, 18 F.3d at 195 (“While a bald and uncorroborated allegation
of retaliation might prove inadequate to withstand a motion to dismiss, it is
sufficient to allege facts from which a retaliatory intent on the part of the
defendants reasonably may be inferred.”).
Nevertheless, there still remains the issue of whether Detective Callaghan’s
alleged threat of prosecution is sufficient to satisfy the requirement of retaliatory
conduct “that would likely deter First Amendment activity in the future” when no
actual prosecution ever took place. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir.
1982) (“It would trivialize the First Amendment to hold that harassment for
exercising the right of free speech was always actionable no matter how unlikely to
deter a person of ordinary firmness from that exercise.”). Neither party has
addressed this issue, and therefore the Court will defer it until later in the
proceedings. See Wehrs v. Wells, 688 F.3d 886, 891 n. 2 (7th Cir. 2012) (“[t]he Court
will not address this undeveloped argument lacking legal authority”); Gross v. Town
of Cicero, Ill., 619 F.3d 697, 704 (7th Cir. 2010) (“it is not this court’s responsibility to
research and construct the parties’ arguments”).
c.

DENIAL OF JUDICIAL ACCESS

A third legal theory for allowing Plaintiff to go forward with Count II is that
the City of Chicago Defendants’ alleged cover-up of Griebel’s identity violated
Plaintiff’s constitutional right of access to the courts. See R. 62 at 7 (First Am.
Cmplt., ¶ 45) (“As a result of Defendant Officers’ unlawful conduct the Plaintiff was
deprived of key information likely required to be successful in a civil prosecution for

28

personal injuries.”). The Supreme Court has said that “[t]he right to sue and defend
in the courts is the alternative of force. In an organized society it is the right
conservative of all other rights, and lies at the foundation of orderly government.”
Chambers v. Baltimore & Ohio RR., 207 U.S. 142, 148 (1907); see also Cal. Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972) (“the right of access
to the agencies and courts to be heard . . . is part of the right of petition protected by
the First Amendment”); Harris v. Pate, 440 F.2d 315, 317 (7th Cir. 1971) (right of
access to courts is encompassed by the First Amendment right to petition, and
efforts by state actors to interfere with an individual’s constitutional right to court
access may be actionable under § 1983); Sigafus v. Brown, 416 F.2d 105 (7th Cir.
1969) (same). “To prove a violation of this right, a plaintiff must demonstrate that
state action hindered his or her efforts to pursue a nonfrivolous legal claim and that
consequently the plaintiff suffered some actual concrete injury.” May v. Sheahan,
226 F.3d 876, 883 (7th Cir. 2000) (citing Lewis v. Casey, 518 U.S. 343, 350-54
(1977)). Plaintiff’s allegations, if true, support a claim that the actions of the City of
Chicago Defendants hindered Plaintiff’s efforts to pursue a nonfrivolous state law
tort claim against Defendant Griebel by hiding Griebel’s identity from her. As the
Seventh Circuit has held, “when police officers conceal or obscure important facts
about a crime from its victims rendering hollow the right to seek redress,
constitutional rights are undoubtedly abridged.” Vasquez v. Hernandez, 60 F.3d 325,
329 (7th Cir. 1995).

29

The City of Chicago Defendants respond that Plaintiff has not shown an
actual injury. Indeed, they argue, Plaintiff has “pled herself out of court” by alleging
that she knew the evening of the incident that the perpetrator of the alleged crime
was Defendant Griebel. See R. 90 at 6 (citing paragraph 34 of the First Amended
Complaint); R. 123 at 10 (citing Thompson v. Boggs, 33 F.3d 847, 852-53 (7th Cir.
1994) (affirming dismissal of plaintiff’s denial of access claim because plaintiff had
firsthand knowledge of the facts which would enable him promptly to file a
lawsuit)). But the City of Chicago Defendants’ reliance on paragraph 34 of the First
Amended Complaint to show that Plaintiff has pled herself out of court is
misplaced. Paragraph 34 alleges that the IPRA knew on the evening of the incident
that the officer who assaulted Plaintiff was Will County Sheriff’s Deputy Matthew
Griebel. See R. 5 at 17. It is very clear from the history of this case that Plaintiff did
not know what the IPRA knew until the City of Chicago Defendants turned over the
IPRA investigation files, which was not until June 2016. The City of Chicago
Defendants are well aware of this timing, because the Court awarded sanctions
against them for their failure to provide this information to Plaintiff any earlier.
Therefore, the Court concludes that Plaintiff has made no such admission of
knowledge in her complaint. Further, based on the allegations of the complaint, the
Court cannot say that Plaintiff knew or should have known all relevant facts giving
rise to her claim, including the real identity of “Officer O’Dublan.” See, e.g., Thomas
v. City of Blue Island, 178 F. Supp. 3d 646, 653 (N.D. Ill. 2016) (rejecting the
defendants’ argument on a motion to dismiss a denial of access claim that the

30

plaintiff should have discovered the identity of the alleged tortfeasor “on her own,”
holding that the court must accept the plaintiff’s allegations that she had done
“everything should could to spur the BIPD into continuing the investigation” and
that “Defendants falsified and concealed the information”).
The City of Chicago Defendants also argue that “[t]he presence of the instant
lawsuit shows that Plaintiff has not been denied access to the courts.” R. 123 at 9.
“A denial of access to the courts arises only where an alleged cover-up is to some
extent successful.” LaPorta v. City of Chicago, 102 F. Supp. 3d 1014, 1023 (N.D. Ill.
2015). It is true that Plaintiff has now identified and named her alleged assailant,
Defendant Griebel, in this lawsuit. But Griebel has filed a motion to dismiss
Plaintiff’s claims against him as being time-barred because Plaintiff failed to
discover his identity prior to the expiration of the statute of limitations. Even
though the Court has denied Griebel’s motion, he can always revisit the statute of
limitations issue later in these proceedings. Therefore, the potential still exists that
the City of Chicago Defendants’ alleged cover-up actually will cause a denial of
access to the courts for Plaintiff.
Moreover, the Seventh Circuit has cautioned that “defendants need not
literally bar the courthouse door” for a right of access claim to arise. Bell v. City of
Milwaukee, 746 F.2d 1205, 1261 (7th Cir.1984), overruled on other grounds by Russ
v. Watts, 414 F.3d 783 (7th Cir. 2005). As the Supreme Court has said, access to
courts does not only protect one’s right to physically enter the courthouse halls, but
also insures that the access to courts will be “adequate, effective and meaningful.”

31

Bounds v. Smith, 430 U.S. 817, 822 (1977). The Seventh Circuit has held that an
allegation of delay alone is sufficient to state a denial of access claim. See May, 226
F.3d at 883 (plaintiff’s allegation of delay in the final disposition of his case was
sufficient “[u]nder the generous standards applicable to a complaint reviewed on a
motion to dismiss” to state a claim for denial of access to the courts); see also Ryland
v. Shapiro, 708 F.2d 967, 975 (5th Cir. 1983) (“The defendants’ actions could have
prejudiced the [plaintiffs’] chances of recovery in state court because the resulting
delay would cause stale evidence and the fading of material facts in the minds of
potential witnesses. Moreover, it could well prove more expensive to litigate such
action. Finally, any interference with a substantive constitutional right, such as the
right of access to the courts, may by itself amount to a constitutional deprivation
(unless reasonably justified by a countervailing state interest).”).
Several courts in this district have upheld a denial of access claim based on
delay where the delay forced the plaintiff to confront burdens in the litigation she
otherwise would have avoided. For instance, in Cook v. City of Chicago, 2014 WL
4493813 (N.D. Ill. Sept. 9, 2014), the court held that a reasonable jury could find
that the plaintiff’s delay in suing the police officers who allegedly assaulted him,
which delay was due at least partly to the conduct of the investigating officer who
allegedly threatened him if he did not drop his complaint against the assaulting
officers, prejudiced the plaintiff because it forced him to confront statute of
limitations defenses and arguments in opposition to equitable estoppel made in the
litigation by the assaulting officers. Id. at *7. In Rainey, 2013 WL 941968, at *12,

32

the court held that the plaintiff was prejudiced because he testified that he covered
his face to protect it during an attack and was therefore unable to identify which
officers were harming him. “He did not know all the facts necessary to bring his
claim, and could not obtain them without deposing each of the dozens of officers
present at the scene.” Id. And in LaPorta, 102 F. Supp. 3d at 1024, the court held
that, “[a]lthough the ‘courthouse door’ ha[d] not yet closed completely (as the City
now concedes that [plaintiff’s] claims may not be time barred),” the plaintiff
nevertheless was prejudiced by the delay in bringing his claims that was caused by
the defendant’s conduct because he had “to litigate numerous motions to compel and
sanctions motions in the state court action, and to confront a challenge [ ] that his
Monell claim [was] time barred.” Similar to the facts in these cases, Plaintiff has
suffered prejudice from the City of Chicago Defendants’ alleged misconduct by
having to conduct extensive discovery for a period of more than a year in an attempt
to learn Griebel’s identity, as well as to defend against Griebel’s motion to dismiss
based on a statute of limitations defense.
In Vasquez, 60 F.3d at 329, the Seventh Circuit held that no constitutional
injury had occurred when police misconduct delayed the disclosure of key facts for a
mere six months, and plaintiffs were still able to bring an action in state court. And
in Rossi, 790 F.3d at 736, the Seventh Circuit again held that no constitutional
injury had occurred because the misbehavior of the police “did not so damage the
plaintiff’s litigation posture that it precluded adequate relief.” Contrary to the City
of Chicago Defendants’ arguments, Vasquez and Rossi, both of which were decided

33

on summary judgment, do not require dismissal of Plaintiff’s denial of access claim
here. In Rossi, the Seventh Circuit made clear that the legal sufficiency of a denial
of access claim depends on a number of factors, including (1) the effects of the
alleged cover-up on the plaintiff’s right to bring suit in court, (2) the order of
magnitude of the misbehavior of the officers who are alleged to have conducted a
cover-up (i.e., police malfeasance, such as a police evidentiary cover-up, versus mere
misfeasance or nonfeasance); and (3) whether any curative measures were taken by
the police department after the cover-up was revealed. Id. The facts before the
Seventh Circuit on summary judgment in those cases are distinguishable from the
facts pled in this case. For instance, in both Vasquez and Rossi there were “curative
measures” by which “a proper investigation was conducted within months of the
crime and before the expiration of the limitations period.” Rossi, 790 F.3d at 736.
More importantly, neither Rossi nor Vasquez involved a police attempt to cover-up
the identity of the alleged tortfeasors over an extended period of time. See Rossi,
790 F.3d at 736 (stating that the police officer “did not conceal any facts about the
incident that were not already known to [the plaintiff],” and that the plaintiff “knew
who the perpetrators were, where the incident occurred, and [ ] had full access to
much of the evidence required to prevail in a civil suit: witnesses, medical records,
police reports, and other documentary evidence”) (emphasis added). In another case
where a district court dismissed a denial of access claim on the complaint, the court
did so because the plaintiffs admitted that “they personally identified the Assailants
for the police” thereby demonstrating that they had “firsthand knowledge of the

34

facts necessary to file a civil action when the claim arose.” Buchmeier v. City of
Berwyn, 2015 WL 4498742, at *3 (N.D. Ill. July 23, 2015). The facts alleged by
Plaintiff regarding the City of Chicago Defendants’ cover-up are starkly different
from the facts at issue in these cases. Plaintiff did not know the identity of her
assailant and was actively blocked by the City of Chicago Defendants for more than
a year from obtaining that information. 14
“An analysis of the extent of a constitutional deprivation is not an exact
science capable of quantification; rather, it is qualitative in nature.” Ryland, 708
F.2d at 974. “What constitutes obstructive action [will be] fact-intensive and
context-specific.” West v. Brankel, 2015 WL 225465, at *8 (W.D. Mo. Jan. 16, 2015).
Based on the facts alleged and the course of this litigation thus far, it appears that
Plaintiff did not know the identity of the person who assaulted her, that she was
diligent in trying to discover it based on the facts known to her, that the City of
Chicago Defendants falsified information to keep Plaintiff from learning her
assailant’s identity and threatened her for pursuing her charges, and that no
In Vasquez, it appears that the plaintiff may not have known the identity of the
person who shot him. But there also is no indication that the plaintiff sought that
information directly from the investigating officers or that those officers
affirmatively misled him or threatened him with criminal prosecution for asking.
Moreover, the Cicero Police Department eventually conducted a full investigation of
the incident and released all the records of that investigation to the plaintiff. As the
Seventh Circuit explained, “the actual circumstances surrounding the shooting here
were revealed publicly within six months of the incident. And subsequent to the
Task Force’s investigation, the Vasquezes were granted access to the records of that
investigation for use in their own legal action. Hence, the delay, albeit frustrating
for the Vasquezes, has not been without some benefit for them. Armed with the
information unearthed by the Task Force, they are at a significant advantage in a
state tort action against the defendants.” Vasquez, 60 F.3d at 329.
14

35

curative investigation was ever conducted. It also appears that Plaintiff may have
suffered prejudice in this litigation as a result of the City of Chicago Defendants’
alleged cover-up. Accordingly, the Court holds that Plaintiff has stated a valid claim
for denial of judicial access.
2.

COUNT III—§ 1983 CONSPIRACY CLAIM

The City of Chicago Defendants argue that Plaintiff’s allegations are
insufficient to sustain her conspiracy claim. “To establish conspiracy liability in a
§ 1983 claim, the plaintiff must show that (1) the individuals reached an agreement
to deprive him of his constitutional rights, and (2) overt acts in furtherance actually
deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir.
2015). It is well-settled in this Circuit that “[t]o be liable as a conspirator you must
be a voluntary participant in a common venture, although you need not have agreed
on the details of the conspiratorial scheme or even know who the other conspirators
are. It is enough if you understand the general objectives of the scheme, accept
them, and agree, either explicitly or implicitly, to do your part to further them.”
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
The City of Chicago Defendants argue that Plaintiff’s conspiracy allegations
are insufficient under Iqbal, and also assert that, in any event, the conspiracy count
fails because there is no underlying constitutional violation. The Court already has
found that the complaint adequately alleges a constitutional violation of the right to
judicial access. Based on the factual allegations regarding an alleged police cover-up
concerning the identity of Plaintiff’s assailant, the Court also finds that the

36

complaint adequately alleges the voluntary participation of the City of Chicago
Defendants in a common venture, the general objectives of which they either
explicitly or implicitly accepted and agreed to further with their alleged conduct,
namely, the cover-up of Griebel’s identity. See Thomas, 178 F. Supp. 3d at 654
(denying motion to dismiss § 1983 conspiracy claim “[b]ecause Plaintiff has
sufficiently alleged her First and Fourteenth Amendment deprivation of access to
courts claim”); Rainey, 2013 WL 941968, at *10 (“Plaintiff offers more than mere
discrepancies in testimony and speculation about motive. . . . [A] jury could infer
that DeLaurentis’s procurement of signatures on blank misdemeanor complaints
and Defendants’ willingness to swear to false charges against Rainey after he was
seriously injured reflect a conspiracy to conceal Defendants’ use of excessive force.”).
Insofar as Defendant Griebel is concerned, he does not contest that the complaint
adequately alleges a constitutional violation against him. The Court also finds that
a reasonable jury could infer Defendant Griebel’s participation in the alleged
conspiracy to cover-up his identity because the interest being protected by the
alleged conspiracy was his interest, and because Plaintiff alleges that a
conversation took place between Griebel and Officer Maas followed by Griebel
immediately getting on the bus and leaving the scene of the incident without having
given his real name.
Finally, the Court finds that the complaint’s allegations adequately apprise
Defendants of the alleged conspiracy, including: (1) the identity of the individuals
who reached an agreement (Maas, Callaghan and Griebel); (2) the nature of the

37

agreement (to hide Griebel’s identity from Plaintiff and thwart Plaintiff’s
investigation of the assault against her); and (3) the overt acts of each defendant in
furtherance of the conspiracy (Griebel assaulted Plaintiff; Griebel and Maas had a
conversation about the assault immediately after it took place; Maas directed
Griebel to get on the bus and leave; Griebel gave a fictitious name and then left;
Maas wrote down Griebel’s fictitious name in the police report and identified him as
a witness rather than the alleged assailant; Callaghan was “apathetic” when
Plaintiff attempted to file criminal charges the next day; Callaghan threatened
Plaintiff with criminal prosecution if she continued to pursue her claims; Callaghan
failed to conduct any further investigation of the alleged assault). Thus, the Court
concludes that Plaintiff has adequately alleged her conspiracy claim. See Thomas,
178 F. Supp. 3d at 654 (rejecting the defendants’ argument that the plaintiff had
“omitted the ‘what, when, where, why, and how’ regarding the conspiracy,” because
the particularity requirements of Federal Rule of Civil Procedure 9(b) do not apply
to a § 1983 conspiracy claim, and upholding the plaintiff’s allegations which set
forth “the parties, the purpose, and the approximate date of the alleged conspiracy”
to commit a violation of the plaintiff’s constitutional right to access the courts).
3.

COUNT VII—IIED

The City of Chicago Defendants argue that Plaintiff’s allegations are
insufficient to sustain her IIED claim. “To recover on a claim for IIED, Illinois law
requires a plaintiff to prove: (1) that the conduct was extreme and outrageous,
(2) that the actor intended that his conduct inflict severe emotional distress or knew

38

that there was a high probability that his conduct would inflict such distress, and,
(3) that the conduct in fact caused severe emotional distress.” Bailey v. City of
Chicago, 779 F.3d 689, 696 (7th Cir. 2015). The tort of IIED does not extend to
“mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.” Boston v. U.S. Steel Corp., 816 F.3d 455, 467 (7th Cir. 2016) (citation
omitted). Instead, for “conduct to be extreme and outrageous it must go ‘beyond all
bounds of decency’ and be ‘considered intolerable in a civilized community.’” Fox v.
Hayes, 600 F.3d 819, 842 (7th Cir. 2010) (citation omitted).
The Court cannot say that the alleged actions of City of Chicago police
officers covering up a battery committed by a Will County deputy sheriff, falsifying
police investigation reports, and/or threatening a crime victim with criminal
prosecution if she continued to seek information about her assailant’s identity, do
not as a matter of law constitute extreme and outrageous conduct or conduct that
goes “beyond all possible bounds of decency.” Illinois cases in which intentional
infliction of emotional distress has been sufficiently alleged frequently involve a
defendant who stood in a position of power or authority relative to the plaintiff. See
Milton v. Ill. Bell Tele. Co. 427 N.E.2d 829, 832 (Ill. App. 1981) (“As Dean Prosser
pointed out, ‘The extreme and outrageous nature of the conduct may arise not so
much from what is done as from abuse by the defendant of some relation or position
which gives him actual or apparent power to damage the plaintiff's interests. The
result is something very like extortion.’” (quoting PROSSER

ON

TORTS, 4th Ed.,

p. 56)); accord RESTATEMENT (SECOND) OF TORTS, § 46, Comment e; see also McGrath

39

v. Fahey, 533 N.E.2d 806, 809-10 (Ill. App. 1988) (holding that threats “are much
more likely to be a part of outrageous conduct when made by someone with the
ability to carry them out then [sic] when made by someone in a comparatively weak
position,” and citing “police officers, school authorities, landlords and collecting
creditors as examples of the many types of individuals who may be positioned to
exercise power or authority over a plaintiff”).
In Buchmeier, 2015 WL 4498742, at *6, the court held that “an isolated
threat that never materialized,” even though by a person in a position to exercise
authority over the plaintiff, did not rise to the level of extreme and outrageous
behavior. But here Plaintiff alleges one threat combined with failing to conduct any
investigation of the assault against her, facilitating Officer Griebel’s quick
departure from the scene of the incident, and hiding the identity of Plaintiff’s
assailant by falsifying police reports. These additional allegations distinguish
Buchmeier. See, e.g., Thomas, 178 F. Supp. 3d at 655 (denying motion to dismiss
IIED claim for conspiracy to commit violation of plaintiff’s constitutional right of
access to the courts where the plaintiff alleged that the defendants failed to
properly investigate the criminal death of her child, falsified police reports,
concealed the hit-and-run crime, and retaliated against a fellow police officer in an
effort to conceal the perpetrator of the hit-and-run crime); cf. Vasquez, 60 F.3d at
329 (where the plaintiff alleged a police cover-up, court states that “[t]he deplorable
nature of [the defendants’] conduct is without question”); West v. Brankel, 2015 WL
225465, at *13 (W.D. Mo. Jan. 16, 2015) (denying qualified immunity in police

40

cover-up case, and stating that “[c]ommon sense alone should inform a reasonable
police officer that using his position of authority to cover up police involvement in a
citizen’s death . . . is a wrong of constitutional magnitude”).
The same principle of outrageousness based on the defendant’s position of
power applies to Defendant Griebel’s argument that Plaintiff’s IIED claim against
him is insufficiently pled. Griebel allegedly was wearing a law enforcement badge at
the time of the incident, and is alleged to have thrown Plaintiff to the ground and
punched her in the face even though she visibly had her arm in a sling. The Court
cannot say at this point to what extent Griebel may have used his apparent position
of authority as a law enforcement officer when engaging in this conduct. To the
extent that he may have, however, the Court concludes that a reasonable jury could
find that Griebel’s conduct constituted an intentional or reckless abuse of power by
a government official that rises to the level of extreme and outrageous conduct.
4.

ILLINOIS TORT IMMUNITY ACT

The City of Chicago Defendants assert, without any argument or case
support, that Plaintiff’s IIED claim is barred by the immunity from liability found
in the Illinois Tort Immunity Act for injuries stemming from a failure to provide
police protection. See 745 Ill. Comp. Stat. Ann. § 10/4-102. The City of Chicago
Defendants provide no legal authority and have not otherwise developed this
argument. For purposes of their motion to dismiss, therefore, it is waived. See
United States v. Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011) (explaining that
“perfunctory and undeveloped arguments, and arguments that are unsupported by

41

pertinent authority, are waived” (quoting United States v. Berkowitz, 927 F.2d 1376,
1384 (7th Cir. 1991))).
In addition, the argument appears to stem from the ill-founded assumption
that Plaintiff’s claims against the City of Chicago Defendants are based on their
conspiracy with Griebel to commit the assault, or else their failure to prevent, to
investigate, and/or to prosecute the assault. As the Court already has found,
Plaintiff’s claims against the City of Chicago Defendants are not based on any of
these things; instead, Plaintiff’s claims are based on the City of Chicago Defendants’
alleged cover-up of Griebel’s identity after the assault occurred.
Finally, the City of Chicago’s argument, that under the Tort Immunity Act it
cannot be held liable if Officer Maas and Detective Callaghan are not liable, is
premature. The tort immunity to which the City refers, 745 Ill. Comp. Stat. Ann.
§ 10/2-109, would apply only if Maas and Callaghan are found to not be liable for
Plaintiff’s tort claim against them. Therefore, the respondeat superior and
indemnification claims against the City of Chicago are not subject to dismissal at
this time on this basis.
D.

MONELL CLAIMS

Count IX of the First Amended Complaint alleges a Monell claim against Will
County Sheriff Kaupas and Count X alleges a Monell claim against the City of
Chicago. The Court considers these claims separately below.

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1.

WILL COUNTY SHERIFF KAUPAS

To adequately allege a Monell claim against Sheriff Kaupas, Plaintiff must
plead factual content that allows the Court to draw the reasonable inference that
the Sheriff maintained a policy, custom, or practice that contributed to the use of
excessive force and/or cover-up of the use of force by Deputy Sheriff Griebel. See
Karney v. City of Naperville, 2015 WL 6407759, at *3 (N.D. Ill. Oct. 22, 2015)
(quoting McCauley v. City of Chi., 671 F.3d 611, 618 (7th Cir. 2011) (quoting Iqbal,
556 U.S. at 678)). “[A] plaintiff may demonstrate the existence of municipal policy
or custom in one of three ways: proof of an express policy causing loss, a widespread
practice constituting custom or usage that caused the loss, or causation of the loss
by a person with final policymaking authority.” Kujawski v. Bd. of Comm’rs of
Bartholomew Cnty., Ind., 183 F.3d 734, 737 (7th Cir. 1999). Plaintiff does not allege
any facts that would support a Monell claim under either the first or third
categories. Instead, Plaintiff attempts to rely on the second category concerning a
widespread practice constituting a custom or usage.
For Plaintiff to show that the alleged customs were attributable to the Will
County Sheriff and thus had the force of law, she must show that the Sheriff was
“‘deliberately indifferent as to [their] known or obvious consequences.’” Gable v. City
of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (quoting Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 406-07 (1997)). “In other words, [the Sheriff] must have been
aware of the risk created by the custom or practice and must have failed to take
appropriate steps to protect the plaintiff.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604

43

F.3d 293, 303 (7th Cir.), cert. denied, 562 U.S. 1061 (2010). “[I]n situations where
rules or regulations are required to remedy a potentially dangerous practice, the
[Sheriff’s] failure to make a policy is also actionable.” Id. (citing Sims v. Mulcahy,
902 F.2d 524, 543 (7th Cir.1990) (quoting Jones v. City of Chicago, 787 F.2d 200,
204-05 (7th Cir. 1986))). The Seventh Circuit, however, has not “adopt[ed] any
bright-line rules defining a ‘widespread custom or practice.’” Thomas, 604 F.3d at
303. In fact, “there is no clear consensus as to how frequently such conduct must
occur to impose Monell liability, except that it must be more than one instance, or
even three.” Id. (quoting Cosby v. Ward, 843 F.2d 967, 983 (7th Cir. 1988), and
Gable, 296 F.3d at 538) (internal quotation marks omitted). The general principle,
however, is that “the plaintiff must demonstrate that there is a policy at issue
rather than a random event.” Id. The policy may be implicit, or it may take the form
of “a gap in expressed policies, or a series of violations to lay the premise of
deliberate indifference.” Id. (citations omitted). But “[b]eyond these threshold
requirements, the jury must make a factual determination as to whether the
evidence demonstrates that the [Sheriff] had a widespread practice that [caused]
the alleged constitutional harm.” Id. (citing Woodward v. Corr. Med. Serv. of Ill.,
Inc., 368 F.3d 917, 928 (7th Cir. 2004)).
The issue in this case is preliminary to the one before the Thomas court,
which addressed the standards for Monell liability on a post-verdict motion for
judgment as a matter of law. The issue here is whether Plaintiff has alleged
sufficient facts to move beyond the pleadings stage on her Monell liability claim

44

against Sheriff Kaupas. The Court holds that she has not. Plaintiff alleges in only a
conclusory fashion that the Sheriff has “a policy and/or custom . . . to inadequately
and improperly investigate citizen complaints of police misconduct,” and to
“inadequately supervise and train officers of the Will County Sheriff’s Office, . . .
thereby failing to adequately discourage further constitutional violations on the
part of these officers.” R. 62 at 13 (¶¶ 76-77). Her further allegation that “Kaupas
and other County policy makers are aware of, and condone and facilitate by their
inaction, an environment within the Will County Sheriff’s Office in which officers
fail to report misconduct committed by other officers, such as the misconduct at
issue in this case” (id., ¶ 78), also is conclusory. No other facts alleged in the
complaint regarding the Sheriff or the Sheriff’s office are alleged from which the
Court could infer a factual basis for these conclusory Monell allegations.
“[I]t is necessarily more difficult for a plaintiff to demonstrate an official
policy or custom based only on his own experience because what is needed is
evidence that there is a true municipal policy at issue, not a random event.”
Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008). For this reason, courts in
this district generally dismiss Monell claims in which “[a]ll of the allegations in the
Complaint pertain exclusively to [the plaintiff].” Davis v. Metro. Pier & Exposition
Auth., 2012 WL 2576356, at *12 (N.D. Ill. July 3, 2012); see also Lewis v. Cnty. of
Cook, 2011 WL 839753, at *14 (N.D. Ill. Feb. 24, 2011) (dismissing Monell claim
because the plaintiff “does not allege facts supporting retaliatory conduct against
anyone other than herself”); Travis v. City of Chicago, 2012 WL 2565826, at *5

45

(N.D. Ill. June 29, 2012) (“although [the plaintiff] states that he himself made
complaints, he does not identify any other people who complained to the City”).
Plaintiff makes no allegations about any similar incidents or complaints against
Sheriff Kaupas from which the Court can infer that the Sheriff was at fault either
for Griebel’s use of force against Plaintiff or the alleged conspiracy to cover-up
Griebel’s identity after the assault occurred. To the extent that Plaintiff’s Monell
claim is based on a failure to train, supervise, and discipline, Plaintiff’s allegations
too are not supported by non-conclusory facts. “A pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563
U.S. 51, 62 (2011). Plaintiff does not allege any similar constitutional violations by
which a failure to train can plausibly be inferred. See Hardy v. Wexford Health
Sources, Inc., 2015 WL 1593597, at *15 (N.D. Ill. Apr. 2, 2015); Velazquez v.
Williams, 2015 WL 4036157, at *3-4 (N.D. Ill. June 30, 2015).
Absent any factual allegations that would give rise to a credible inference
that Sheriff Kaupas’s own conduct contributed to the alleged constitutional
violations, Plaintiff’s Monell claim against the Sheriff must be dismissed. See
Monell, 436 U.S. at 691, 694 (liability under § 1983 may not be premised on a
respondeat superior theory; a municipality may be held liable under § 1983 only
“when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy inflicts . . . injury”).

46

2.

CITY OF CHICAGO

Plaintiff’s Monell claim against the City of Chicago, much like her Monell
claim against Will County Sheriff Kaupas. is conclusory and does not include any
allegations about similar incidents or complaints. See R. 62 at 15, ¶¶ 84-87 (alleging
that the City of Chicago “maintained policies or customs exhibiting deliberate
indifference to the constitutional rights” of others; that “[i]t was the policy and/or
custom of Chicago to inadequately and improperly investigate citizen complaints of
police misconduct, and acts of misconduct were instead tolerated”; and that “[i]t was
the policy and/or custom of Chicago to inadequately supervise and train” its officers
and to “condone and facilitate . . . an environment . . . in which officers fail to report
or investigate misconduct committed by other officers”). Nevertheless, the Court
considers two additional sources of support for Plaintiff’s Monell claim against the
City of Chicago, which are not applicable to Plaintiff’s Monell claim against Sheriff
Kaupas.
The first source is allegations in the complaint against Officer Maas and
Detective Callaghan. See Karney v. City of Naperville, 2016 WL 6082354, at *13
(N.D. Ill. Oct. 18, 2016) (“on a Rule 12(b)(6) motion to dismiss, the inquiry is limited
to whether the plaintiff has pled sufficient factual content—whether it is other
complaints or incidents, the specific facts of the plaintiff's case, some other evidence,
or a combination of some or all of those things—that renders plausible the plaintiff's
conclusion that there is an informal practice or custom for which the municipality
may be held liable”) (emphasis added). For instance, in Sanders v. City of Chicago

47

Heights, 2016 WL 2866097 (N.D. Ill. May 17, 2016), the court held that the plaintiff
had presented sufficient evidence to survive summary judgment on a Monell claim
against the municipality based on evidence concerning the actions of the individual
officers. See id. at *11 (Monell claim upheld where the evidence showed that the
“Defendant Officers violated his right to due process when Defendants withheld
material exculpatory and impeachment evidence, employed unduly suggestive
identification procedures to induce Armstrong’s false identification, and fabricated
evidence in an effort to frame him”). Unlike the allegations against Sheriff Kaupas,
the factual allegations regarding a police cover-up involving at least two Chicago
police officers at different times and places (Officer Maas, at the scene of the
incident, and Detective Callaghan, a few days later when Plaintiff went to the
station to file a criminal complaint against the person who assaulted her) nudge
Plaintiff’s Monell claim against the City of Chicago slightly closer to the pleading
threshold of plausibly suggesting the existence of an informal policy or custom by
which acts of misconduct of other law enforcement officers (Griebel) could be said to
be tolerated. The two Chicago police officers in question are alleged to have
intentionally misled Plaintiff with the joint purpose of thwarting Plaintiff’s efforts
to discover the identity of the officer who assaulted her, falsified information on a
police report, and made threats of pursuing a criminal prosecution against Plaintiff
if she continued her efforts. At least one district court appears to have found
somewhat similar conspiracy allegations sufficient to state a Monell claim. See
Thomas, 178 F. Supp. 3d at 653 (denying motion to dismiss Monell claim “[b]ecause

48

Plaintiff has sufficiently alleged her access to courts claim under Iqbal and
Twombly”). But in Thomas the plaintiff made allegations of a police cover-up that
may have involved the Chief of Police. This Court is not convinced that the
involvement of the two police officers here is sufficient to implicate the City of
Chicago as an entity.
The second source of support for Plaintiff’s Monell claim against the City of
Chicago is found in LaPorta, 102 F. Supp. 3d at 1020-21. In that case, the court held
that the plaintiff’s Monell allegations of a widespread practice in the Chicago Police
Department of “failing to investigate, discipline, or otherwise hold accountable its
police officers” to be plausible where the plaintiff had alleged that “complaint
registers” and “repeater lists” made publicly available by order of the Illinois
appellate court “revealed that officer misconduct was prevalent within the CPD, but
largely condoned, and to the extent possible, hidden from the public.” Id. This
information, however, is not specific enough for the Court to conclude that the type
of police misconduct referenced in the LaPorta case (as shown in the publicly
released complaint registers and repeater lists), is sufficiently similar to the
allegations of police misconduct at issue here. The police misconduct of the City of
Chicago Police Department alluded to in Cheatham is similarly not specific enough
for the Court to conclude that it involves the same type of misconduct at issue here.
See 2016 WL 6217091, at *6 (pleading of Monell claim upheld where the plaintiff
“alleged that, prior to February 22, 2015, the City of Chicago was aware of several
complaints of police misconduct involving the use of excessive force and numerous

49

claims of constitutional violations involving [the defendant police officer]
specifically. Plaintiff also alleges that the City inadequately and improperly
investigated citizen complaints of police misconduct and instead tolerated that
misconduct. The allegations that the City knew about, failed to properly investigate,
and tolerated misconduct raises a plausible claim that the City was deliberately
indifferent through a policy or custom of inadequately training, supervising, and
disciplining police officers.”).
Accordingly, the Court finds that the inference of a municipal unofficial policy
or custom in this case is too weak based solely on the allegations of the current
complaint, which do not involve allegations of other similar complaints or incidents.
The Court cannot plausibly infer from the complaint that the actions of the
defendant police officers are attributable to an informal policy or custom of the City
of Chicago arising out of its deliberate indifference to similar events. See Sornberger
v. City of Knoxville, Ill., 434 F.3d 1006, 1029-30 (7th Cir. 2006). For this reason, the
Court concludes that Plaintiff’s Monell claim against the City of Chicago must be
dismissed.
CONCLUSION
For the forgoing reasons, (1) the City of Chicago Defendants’ motion to
dismiss, R. 90, is granted in part and denied in part; (2) Defendant Griebel’s motion
to dismiss, R. 98, is denied; and (3) the motion to dismiss filed by Will County and
Will County Sheriff Paul Kaupas, R. 100, is granted in part and denied in part, as
follows:

50

The claims against Will County in Counts VI, VII, and IX of the First
Amended Complaint are dismissed with prejudice.
Sheriff Kaupas is substituted in his official capacity in the place of Will
County in Counts VI and VII of the First Amended Complaint.
Plaintiff’s Monell claims against Will County Sheriff Kaupas and the City of
Chicago in Counts IX and X of the First Amended Complaint are dismissed without
prejudice.
In all other respects, Defendants’ motions to dismiss are denied.
Plaintiff may file a motion to amend her Monell claims if she does so on or
before March 15, 2017. The motion should attach a proposed amendment and a brief
of no more than five pages explaining how the proposed amendment cures the
deficiencies in the current Monell claims. Defendants should not file a brief
responding to Plaintiff's motion to amend (should she choose to file one) unless the
Court requests a response.
ENTERED:
___

Dated: February 24, 2017

51

Honorable Thomas M. Durkin
United States District Judge