Lane v. City of Chicago et al
Filing
45
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/2/2015:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ESTATE OF ROSHAD MCINTOSH,
Deceased, by Cynthia Lane, Administrator,
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Plaintiff,
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v.
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CITY OF CHICAGO, Chicago Police Officers )
SLECHTER, Star #4924; SAMPIM,
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Star #19641; ZODO, Star #1561;
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and BOWERY, Star #11973,
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Defendants.
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No. 15 C 1920
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiff Estate of Roshad McIntosh, appointed Administrator Cynthia Lane, filed her
First Amended Complaint on May 12, 2015, naming as Defendants, the City of Chicago (“City”)
and Chicago Police Officers Slechter, Star #4924 (“Slechter”), Sampim, Star #19641
(“Sampim”), Zodo, Star #1561 (“Zodo”), and Bowery, Star #11973 (“Bowery”) (collectively
“Defendant Officers”, together with Defendant City “Defendants”) and alleging claims for an
unconstitutional seizure under 42 U.S.C. § 1983 (Count I) against Defendant Officers; a Monell
claim against Defendant City (Count II); state law claims for wrongful death (Count III), survival
(Count IV), funeral expenses (Count V), intentional infliction of emotional distress (Count VI),
conspiracy (Count VII), and battery (Count VIII) against Defendant Officers; and respondeat
superior (Count IX) and indemnification (Count X) against Defendant City. (See generally,
R.12, Pl.’s Amd. Compl.) Plaintiff further requests punitive damages under Counts I, III, IV, V,
VII, and VIII. (Id.) Before the Court is Defendant Officers’ partial motion to dismiss Plaintiff’s
First Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief
can be granted, seeking dismissal of Counts III, IV, V, and VIII against Defendants Sampim,
Zodo, and Bowery and dismissal of Plaintiff’s request for punitive damages under Counts III, IV,
and V. (R.20.) Also before the Court is Defendant City’s Motion to Bifurcate Section 1983
Claims and to Stay Discovery and Trial on Those Claims pursuant to Federal Rule of Civil
Procedure 42(b). (R.28.) For the reasons set forth below, the Court grants in part and denies in
part Defendant Officers’ partial motion to dismiss and denies Defendant City’s motion to
bifurcate without prejudice to a renewed motion for bifurcation of trial after discovery is
completed.
BACKGROUND
I.
Factual Allegations
Viewing the allegations in the light most favorable to Plaintiff, Plaintiff alleges the
following: On August 24, 2014, Roshad McIntosh (“McIntosh”) was on the 2800 block of West
Polk Street in Chicago when a group of Chicago police officers, including Defendant Officers,
arrived on the scene. (R.12, ¶ 9.) The officers jumped out of their vehicles and drew their guns,
pointing them at McIntosh and others. (Id., ¶ 10.) The officers chased McIntosh into the
backyard of a nearby residence. (Id., ¶ 11.) Although McIntosh was unarmed and surrendered,
Defendant Slechter fired several gunshots at him, killing him without cause or provocation. (Id.,
¶ 12.) Defendants Sampim, Zodo, and Bowery did nothing to assist McIntosh or prevent the
shooting. (Id., ¶ 13.) Plaintiff further alleges that, in order to cover up their misconduct,
Defendant Officers completed false and incomplete official reports and gave a false and
incomplete version of the events to certain superiors and the public, and falsely claimed that
McIntosh placed them in imminent fear of bodily harm. (Id., ¶ 14.) McIntosh’s minor son, his
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heir, his family, and his community, have suffered grief, injury, pain and suffering, mental
distress, loss of love, affection, society, companionship, consortium, and expenses, as well as
other injuries as a result of McIntosh’s death. (Id., ¶ 15.)
II.
Monell Allegations
In Count II of her First Amended Complaint, Plaintiff alleges that Defendant City and its
police department, Superintendents, Independent Review Police Authority (“I.P.R.A.”), Internal
Affairs Division (“I.A.D.”), Personnel Division and/or Police Board had interrelated de facto
policies, practices, and customs which include: (1) failure to properly hire, train, supervise,
discipline, transfer, monitor, counsel and/or otherwise control police officers who commit acts of
excessive force; (2) police code of silence; (3) encouragement of excessive and unreasonable
force; (4) failure to properly investigate shootings of civilians; (5) failure to properly discipline,
monitor, counsel and otherwise control Chicago police officers who engage in unjustified
shootings; and/or (6) failure to properly train and supervise Chicago police officers with regard
to discharging weapons at civilians. (See R.12, ¶ 23.) Plaintiff further alleges that these policies,
practices, and customs “both individually and together, were maintained and implemented with
deliberate indifference, and encouraged the Defendant [O]fficers to commit the aforesaid acts
against Roshad McIntosh and therefore acted as the moving force and were, separate and
together, direct and proximate causes of the injuries to Roshad McIntosh and his Estate.” (Id.,
¶¶ 38, 39.) These policies, practices, and customs, as Plaintiff alleges, also encouraged “the
unreasonable shooting of Black men, police misconduct, the fabrication of evidence, the
intimidation of witnesses, and the making of false statements and reports, and the code of silence
and were, separately and together, the moving force and a direct and proximate cause of the
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unconstitutional acts committed by the Defendants in this case and the injuries sustained by
Roshad McIntosh and his Estate.” (Id., ¶ 40.)
LEGAL STANDARD
I.
Defendant Officers’ Partial Motion to Dismiss - Rule 12(b)(6)
Defendant Officers move to dismiss Plaintiff’s First Amended Complaint under Federal
Rule of Civil Procedure 12(b)(6). See R.10. “A motion under Rule 12(b)(6) tests whether the
complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635,
637 (7th Cir. 2012). Under Rule 12(b)(6), a plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Put differently, a “complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). A district court’s analysis under Rule 12(b)(6)
“rests on the complaint, and [the court] construe[s] it in the light most favorable to the plaintiffs,
accepting as true all well-pleaded facts alleged and drawing all permissible inferences in their
favor.” Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 696, 700 (7th Cir. 2014); see
also Teamsters Local Union No. 705 v. Burlington N. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir.
2014); Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). “[T]he complaint
must supply ‘enough fact[s] to raise a reasonable expectation that discovery will reveal evidence’
supporting the plaintiff’s allegations.” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d
930, 935 (7th Cir. 2012) (quoting Twombly, 550 U.S. at 556). “A claim must be plausible rather
than merely conceivable or speculative, meaning that the plaintiff must include ‘enough details
about the subject-matter of the case to present a story that holds together.’” Carlson v. CSX
Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014) (citations omitted). A plaintiff’s pleading
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burden “should be commensurate with the amount of information available” to him. Olson v.
Champaign Cnty., Ill., 784 F.3d 1093, 1100 (7th Cir. 2015).
II.
Defendant City’s Motion to Bifurcate and Stay Trial and Discovery - Rule 42(b)
Federal Rule of Civil Procedure 42(b) authorizes a district court to order separate trials of
any claim or issue “in furtherance of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy … always preserving inviolate the right of trial by
jury.” Fed. R. Civ. P. 42(b); see also Chlopek v. Fed. Ins. Co., 499 F.3d 692, 700 (7th Cir.
2007). When determining whether to bifurcate discovery or trial, the Court “must balance
considerations of convenience, economy, expedition, and prejudice, depending on the peculiar
facts and circumstances of each case.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008).
Whether to bifurcate trial is a decision made on a case-by-case basis and committed to the sound
discretion of the district court. See Volkman v. Ryker, 736 F.3d 1084, 1088-89 (7th Cir. 2013);
Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000). While separation of issues should
not be customary, “it is important that it be encouraged where the experience has demonstrated
its worth.” Ojeda-Beltran v. Lucio, No. 07 C 6667, 2008 WL 2782815, at *1 (N.D. Ill. July 16,
2008) (citations omitted).
ANALYSIS
I.
Defendant Officers’ Partial Motion to Dismiss
A.
Plaintiff’s Wrongful Death, Survival, and Funeral Expense Claims Are
Sufficiently Pled
The Illinois Wrongful Death Act provides a cause of action, “[w]henever the death of a
person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such
as would, if death had not ensued, have entitled the party injured to maintain an action and
recover damages in respect thereof.” 740 ILCS 180/1; Williams v. Manchester, 228 Ill.2d 404,
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320 Ill. Dec. 784, 888 N.E.2d 1, 10 (2008) (“An injury resulting from the wrongful act, neglect,
or default of another gives the victim, if she survives the injury, a right of action; if the victim
dies, the [Wrongful Death] Act transfers the right of action to the victim’s personal
representative”).
Defendant Officers do not argue that Plaintiff’s allegations fail to establish a wrongful
death claim. Instead, they argue that the Illinois Local Government and Governmental
Employees Tort Immunity Act (“Immunity Act”) shields them from liability because Plaintiff
seeks to hold Officers Sampim, Zodo, and Bowery liable for failing to intervene and prevent the
shooting of McIntosh and his alleged wrongful death.1 See 745 ILCS 10/1-101, et seq. The
Court agrees with Plaintiff and finds that the Immunity Act does not shield Defendants at this
stage based on the facts alleged regarding Defendant Officers’ “willful and wanton conduct”.
1. The Immunity Act
The Immunity Act shields “local public entities and public employees from liability for
ordinary negligence committed during the exercise of their duties.” Marshbanks v. City of
Calumet City, No. 13 C 2978, 2015 WL 273221, at *8 (N.D. Ill. Jan. 20, 2015) (citing Mitchell v.
Special Educ. Joint Agreement Sch. Dist. No. 208, 386 Ill.App.3d 106, 111, 325 Ill.Dec. 104, 897
N.E.2d 352 (Ill.App.Ct. 2008)). In particular, Defendant Officers assert immunity under two
separate sections of the Immunity Act—Sections 4-102 and 2-204. First, Defendant Officers
assert that Section 4-102 “immunizes local public entitles and public employees for failure to: (1)
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Defendants assert that “Plaintiff alleges that Officer Slechter fired the shots that killed McIntosh
and seeks to hold Officers Sampim, Zodo, and Bowery liable for having ‘the duty and opportunity to
intervene to protect Roshad and do [sic] nothing to assist him or prevent the shooting.’” (R.20, at 4.) As
alleged in Plaintiff’s First Amended Complaint, however, Plaintiff’s failure to intervene argument is tied
to her § 1983 claim for unconstitutional seizure, not her wrongful death and survival claims. Instead,
Plaintiff’s wrongful death and survival claims reference Defendants “willful and wanton” and “wrongful”
conduct. (See R.12, ¶¶ 44, 45, 48.)
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establish a police department; (2) otherwise provide police protection; or, if police protection is
provided, (3) failure to provide adequate police protection service.” Payne v. City of Chicago,
2014 IL App (1st) 123010, ¶ 27, 16 N.E.3d 110, 384 Ill.Dec. 14 (2014); see also 745 ILCS
10/4-102. Second, Defendant Officers assert immunity under Section 2-204 which states,
“[e]xcept as otherwise provided by statute, a public employee, as such and acting within the
scope of his employment, is not liable for an injury caused by the act or omission of another
person.” 745 ILCS 10/2-204. The “statutory immunities provided by the [Immunity Act] extend
to allegations of willful and wanton conduct unless the legislature has specially indicated
otherwise.” Hess v. Flores, 408 Ill.App.3d 631, 644, 948 N.E.2d 1078, 350 Ill.Dec. 571 (Ill.
App. Ct. 2011). Neither Section 4-102 nor Section 2-204 contains an explicit exception for
“willful and wanton conduct”. Therefore, to the extent these sections apply, immunity would
apply.
Plaintiff argues, however, that under Section 2-202 of the Immunity Act Defendant
Officers’ acts or omissions amount to “willful and wanton conduct” and expose them to liability
for state law claims. (R.29, at 4; R.30, at 2; see also R.12, ¶¶ 41-46 (Count III), ¶¶ 47-48 (Count
IV), ¶¶ 49-50 (Count VI).) Section 2-202 provides that “[a] public employee is not liable for his
act or omission in the execution or enforcement of any law unless such act or omission
constitutes willful and wanton conduct.” 745 ILCS 10/2-202. Unlike Sections 4-102 and 2-204
relied on by Defendant Officers, Section 2-202 of the Immunity Act contains an explicit
exception for “willful and wanton conduct” and therefore does not provide blanket immunity.
See Payne, 2014 IL App (1st) 123010, ¶ 30. The exception to immunity in Section 2-202,
however, “will not prevail where other, more specific, immunities apply.” Hess, 408 Ill.App.3d
at 644.
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Under Illinois law, courts must analyze which section of the Immunity Act is specifically
applicable to the facts in each case in order to ultimately determine whether immunity applies.
See e.g., Ries v. City of Chicago, 242 Ill.2d 205, 220, 351 Ill.Dec. 135, 950 N.E.2d 631 (2011)
(finding that both Section 2-202 and Section 4-106(b) of the Immunity Act “potentially apply to
the facts of this case”, but finding “section 4-106(b), the more specifically applicable immunity,
controls”); Payne, 2014 IL App (1st) 123010, ¶ 29 (finding section 2-202 inapplicable because
“the facts of this case do not establish the requisite execution or enforcement of a law but, rather,
fall squarely within the ‘failure to provide adequate police protection service’ under section
4-102”). As an initial matter, therefore, in order to determine whether immunity shields
Defendants Sampim, Zodo, and Bowery from liability, the Court must determine which section
of the Immunity Act specifically applies to the facts of this case. If either Section 2-204 or
Section 4-102 specifically applies, then the Immunity Act shields Defendants Sampim, Zodo,
and Bowery, whereas if Section 2-202 specifically applies, no protection is afforded.
2. The Applicable Immunity Act Provision
Viewing the facts and all reasonable inferences in the light most favorable to Plaintiff, as
the Court must do at this stage, Section 2-202 applies. “Generally, the question of whether a
police officer is executing and enforcing the law under Section 2-202, rather than providing
police protection or service under Section 4-102, is a factual determination which must be made
in light of the circumstances involved.” Id., ¶ 32. “Police efforts to aid, assist, or rescue
individuals are within the scope of ‘police protection or service’ and are covered under section 4102 of the [Immunity Act].” Id., ¶ 33. “Because these functions are commonly recognized as an
important part of police services,” the Illinois courts “believe that the legislature intended to
grant immunity for this type of service as well as for police protection.” Id. On the other hand,
Section 2-202 “provides immunity only where the public employee is negligent while actually
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engaged in the execution or enforcement of a law.” Id., ¶ 34 (citing Barnett v. Zion Park Dist.,
171 Ill.2d 378, 391, 216 Ill.Dec. 550, 665 N.E. 2d 808 (1996)). Put differently, “Section 4-102
immunity may apply in the context where police officers are simply providing or failing to
provide police services, but section 2-202 immunity requires more particular circumstances for
its application, i.e., an act or a course of conduct ‘in execution or enforcement’ of law.” Payne,
2014 IL App (1st) 123010, ¶ 34 (citing Aikens v. Morris, 145 Ill.2d 273, 282, 164 Ill.Dec. 571,
583 N.E.2d 487 (1991)).
At this early stage of the litigation, Plaintiff’s First Amended Complaint pleads more than
enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting
the applicability of Section 2-202. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Plaintiff alleges that Officers Sampim, Zodo, and Bowery arrived at West Polk Street in
Chicago, jumped out of their vehicles and drew their guns, pointing them at McIntosh and others.
(See R.12, ¶ 9-10.) Defendant Officers then chased McIntosh—who was unarmed—into the
backyard of a nearby residence. (Id., ¶¶ 11, 12.) Although McIntosh surrendered, Defendant
Slechter fired several gunshots that killed McIntosh. (Id., ¶ 12.) Plaintiff has not, for example,
alleged any facts that Defendant Officers were responding to a call for police assistance—which
would directly implicate Section 4-102. See Payne, 2014 IL App (1st) 123010, ¶ 33. Nor are
there allegations that would directly implicate Section 2-202, e.g., that Defendant Officers were
responding to a call that a crime may have just been committed, or whether they were
investigating a crime or traffic accident, making an arrest or issuing a citation, or quelling a
public breach of peace. See id., ¶ 35. Taking the facts as alleged and drawing all reasonable
inferences in the light most favorable to Plaintiff, however, it is reasonable to infer that
Defendant Officers’ alleged behavior was associated with an investigation of a crime, to make an
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arrest, or in response to a call to apprehend McIntosh—or at least apprehend someone at the
West Polk Street location where McIntosh was shot. The discovery process will reveal the
character, nature and extent of the reasons for Defendant Officers’ presence at the scene and their
actions and/or omissions during their encounter with McIntosh that led to his death.2
Assuming, therefore, for the sake of this motion to dismiss that Section 2-202 is the
specifically applicable Immunity Act provision, Plaintiff’s allegations rely on the “willful and
wanton conduct” exception to immunity. In particular, Plaintiff alleges Defendant Officers
engaged in “willful and wanton” conduct in support of Counts III (wrongful death), IV
(survival), and V (funeral expenses). (See R.12, ¶¶ 9-13, 44, 45, 47-51.) “Willful and wanton
conduct” is defined as “a course of action which shows an actual or deliberate intention to cause
harm or which, if not intentional, shows an utter indifference to or conscious disregard for the
safety of others or their property.” 745 ILCS 10/1-210; see also Wilson v. City of Chicago, 758
F.3d 875, 881 (7th Cir. 2014); Chelios v. Heavener, 520 F.3d 678, 693 (7th Cir. 2008) (citations
omitted) (explaining that under Illinois law, “a police officer is not guilty of willful or wanton
conduct unless he acted with ‘actual or deliberate intention to harm or with an utter indifference
to or conscious disregard for the safety of others’”). “Although willful and wanton conduct
‘consists of more than mere inadvertence, incompetence, or unskillfulness,’ it need not be an
‘intentional act; rather, it may be an act committed under circumstances exhibiting a reckless
disregard for the safety of others.’” Id. (citing Carter v. Chicago Police Officers, 165 F.3d 1071,
1071 (7th Cir. 1998)).
2
Similarly, the Court finds that Section 2-202 of the Immunity Act applies more specifically than
Section 2-204 because McIntosh’s death, based on the facts alleged, was directly caused by Defendant
Schlecter’s shooting (see R.12, ¶ 12) and was proximately caused by Defendants Sampim, Zodo, and/or
Bowery’s acts or omissions at the scene (see id., ¶¶ 9-13, 44, 45). See 745 ILCS 2-202; 745 ILCS 2-204.
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In her First Amended Complaint, Plaintiff alleges that McIntosh’s wrongful death “was
proximately caused by the willful and wanton conduct of Defendants Slechter, Sampim, Zodo
and Bowery in violation of 740 ILCS § 180.1”.3 (See R.12, ¶ 44.) As discussed above, Plaintiff
alleges that Defendant Officers arrived at the scene, jumped out of their vehicles and drew their
guns, pointing at McIntosh and others, and chased McIntosh—unarmed—into the backyard
where he surrendered and they shot him. (See R.12, ¶¶ 9-12.) These allegations support a
reasonable inference that Defendant Officers’ conduct was willful and wanton in that they had
knowledge of, or turned a blind eye towards the fact that McIntosh was chased, unarmed, and
then shot after McIntosh surrendered. Indeed, “whether the conduct is sufficiently willful and
wanton is ordinarily a question of fact for the jury and rarely should be ruled upon as a matter of
law.” See Liska v. Dart, 60 F.Supp.3d 889, 906 (N.D. Ill. 2014) (citations omitted); see also
Drain v. Bauman, 708 F.Supp.2d 693, 709 (N.D. Ill. 2010) (citing Chelios, 520 F.3d at 693;
Carter v. Simpson, 328 F.3d 948, 951 (7th Cir. 2003)) (“Whether an officer acted wantonly ‘is
normally a question of fact to be determined by the jury”). The principle is applicable here and
the cases upon which Defendant Officers rely do not change the factual nature of this inquiry
because they address state law claims of wrongful death and survival, not in a motion to dismiss,
but during summary judgment. (See R.20, at 5 (citing Thompson v. City of Chicago, No. 01 C
8883, 2004 WL 1197436, at *7-8 (N.D. Ill. May 28, 2004) and Lewis v. City of Chicago, No. 04
C 3904, 2005 WL 947195, at *8 (N.D. Ill. Apr. 11, 2005)).)
In addition, Defendant Officers’ immunity argument is premature, in this case, as a basis
for dismissing Plaintiff’s claims. “[C]omplaints need not anticipate affirmative defenses”, and
3
Similarly, Plaintiff’s survival claim and funeral expenses claim are also predicated on the
“direct and proximate result of the wrongful actions of Defendants Slechter, Sampim, Zodo and Bowery.”
(Id., ¶¶ 48, 50.)
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“neither Iqbal or Twombly suggests otherwise.” Levin v. Miller, 763 F.3d 667, 671 (7th Cir.
2014); see also Brooks, 578 F.3d at 579. Illinois tort immunity is an affirmative defense. See
Wilson, 758 F.3d at 879 (referring to the “affirmative defense of immunity under § 2-202” of the
Illinois Tort Immunity Act); see also Davis v. City of Chicago, 2014 Ill App (1st) 122427, ¶ 7,
380 Ill. Dec. 189, 193, 8 N.E.3d 120, 124 (addressing the “affirmative defense … of immunity
under section 2-202” of the Illinois Tort Immunity Act). Indeed, Defendant Officers’ Answer to
Plaintiff’s First Amended Complaint includes the “affirmative defenses” of tort immunity under
Sections 2-201, 2-202, and 2-102. (See R.22, Def. Officers’ Answer, Affirmative Defenses, ¶¶
1-4.) As such, the facts required to defeat immunity are not required at the pleading stage and
the facts as alleged do not establish that immunity irrefutably applies.4 At the pleading stage, a
plaintiff’s burden “should be commensurate with the amount of information available” to her.
Olson, 784 F.3d at 1100. Here, as discussed above, Plaintiff’s claims for wrongful death,
survival, and funeral expenses are sufficiently pled to withstand a motion to dismiss based on
Officers Sampim, Zodo and Bowery’s presence and involvement at the scene of McIntosh’s
death. Accordingly, Sections 4-102 and 2-204 do not, at this stage, shield Defendant Officers
from liability and the Court denies their motion to dismiss Counts III, IV, and V. See Thomas ex
rel. Smith v. Cook Cnty. Sheriff, 401 F.Supp.2d 867, 876 (N.D. Ill. 2005).
B. Plaintiff’s Battery Claim is Insufficiently Pled
Under Illinois law, battery “in its simplest terms, is defined as the ‘unauthorized touching
of the person of another’”. Wilson, 758 F.3d at 879 (citing Curtis v. Jaskey, 326 Ill.App.3d 90,
259 Ill.Dec. 901, 759 N.E.2d 962, 964 (2001)); see also Luss v. Vill. of Forest Park, 377
4
The cases upon which Defendant Officers rely do not change this fact as they address state law
claims during summary judgment. (See R.20, at 5.)
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Ill.App.3d 1087, 1090 (Ill.App.Ct. 2007). Defendant Officers argue that Plaintiff has failed to
provide factual support for her allegations that Defendants Sampim, Zodo, and Bowery made
any physical contact with McIntosh, as required for a battery claim. (See R.20, at 5-6; R..30, at
4-5.) Plaintiff responds that the claim is sufficiently pled by the allegation that each Defendant
“knowingly and without justification caused bodily harm to McIntosh when they shot and killed
him, and/or made physical contact with him.” This allegation, however, is insufficient to satisfy
a claim for battery. Plaintiff alleges that Defendant Officers were present at the scene, chased
McIntosh and were present in the backyard when Defendant Schlecter shot McIntosh. Plaintiff,
however, does not allege any supporting facts that indicate Defendants Sampim, Zodo, and
Bowery made physical contact with McIntosh. The cases upon which Plaintiff relies do not alter
this outcome as they all include factual circumstances that necessarily implicate direct contact
between the plaintiff(s) and the defendant(s). See Herzog v. Vill. of Winnetka, 309 F.3d 1041,
1044 (7th Cir. 2002) (emphasis added) (holding an officer can be liable for battery for cracking
plaintiff’s tooth during a breath-screening test); Ford v. Davis, 878 F.Supp. 1124, 1126, 1130
(N.D. Ill. 1995) (emphasis added) (denying a motion to dismiss a battery claim where the
complaint alleged that the defendants physically abused the plaintiff for a period of minutes
using their fists, feet, and flashlights); Bedenfield v. Shultz, 2002 WL 1827631 (N.D. Ill. Aug. 7,
2002) (emphasis added) (finding officers can be liable for battery for using excessive force while
arresting the plaintiff); Clark v. City of Chicago, No. 10 C 0893, 2010 WL 4781467, at *3 (N.D.
Ill. Nov. 17, 2010) (emphasis added) (finding the plaintiff’s excessive force claim sufficiently
pled where the plaintiffs allege they were severely beaten by several officers because “it is not
reasonable to expect [the plaintiffs] to be able to provide a detailed, blow-by-blow recitation of
who did what and when”); Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000) (emphasis added)
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(summary judgment on excessive force denied to a group of police officers where the plaintiff
was physically abused by one of the officers whom the plaintiff could not identify while
handcuffed on the ground). Plaintiff fails to allege any facts that suggest physical contact
between McIntosh and Defendants Sampim, Zodo and Bowery. Plaintiff’s conclusory allegation
of “physical contact” between McIntosh and Defendants Sampim, Zodo, and Bowery is,
therefore, insufficient. See Ray v. City of Chicago, 629 F.3d 660, 662 (7th Cir. 2011) (“[W]e
need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”) (internal citations omitted). As such, the
Court grants Defendant Officers’ motion in this regard and dismisses Count VIII as against
Defendants Sampim, Zodo, and Bowery, without prejudice.
C. Plaintiff’s Requests for Punitive Damages in Counts III, IV, and V Are Stricken
Defendant Officers argue that Plaintiff’s request for relief in the form of punitive
damages on her wrongful death (Count III), survival (Count IV), and funeral expenses claims
(Count V) is not available under Illinois law and thus the Court should strike it. (See R.20, at 6.)
Plaintiff responds and “agrees to voluntarily withdraw any request for punitive damages in its
wrongful death, survival and funeral expenses claims.” (See R.29, at 2, n. 1.) Accordingly, the
Court denies as moot Defendant Officers’ motion in this regard and strikes Plaintiff’s requests
for punitive damages in Counts III, IV, and V.
II.
Defendant City’s Motion to Bifurcate and Stay Discovery and Trial of Plaintiff’s
Monell Claim
Defendants claim that bifurcation of Plaintiff’s Monell claim is warranted because: (1) it
best serves the interest of efficient litigation and judicial economy, (2) it will help prevent undue
prejudice, and (3) it will not affect Plaintiff’s recovery of compensatory damages. Defendant
City has consented to the entry of judgment against it for the amount of damages caused by the
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violation, plus reasonable attorney fees, if bifurcation and stay of trial and discovery is granted
and the Defendant Officers are found to have violated Plaintiff’s constitutional rights.
According to Defendant City, this concession benefits Plaintiff because she would not be
required to prove the elements of Section 1983 municipal liability. Plaintiff responds that
judicial economy would not be served by bifurcation and stay of discovery on the Monell claim
because it would undermine the independent importance of holding a municipality liable under
Monell and would be unduly burdensome and require duplication. Plaintiff further responds that
Defendant City has not shown, at this stage of the litigation, how it will suffer undue prejudice
and any potential prejudice can be cured through instructions to the jury and evidentiary
challenges. Lastly, Plaintiff responds that litigation of her Monell claim yields non-economic
benefits and pragmatism that are otherwise unachievable.
A.
Efficiency and Judicial Economy
In support of its position that bifurcation and a stay of discovery promote economic
interests of the Court and the parties, Defendant City contends that “liability against the
individual defendants remains a necessary predicate for municipal liability.” (See R.28, at 5.) In
Thomas v. Cook County Sheriff’s Department, however, the Seventh Circuit rejected this
argument explaining there is no hard and fast rule that individual officer liability is always
required in order to find liability under Monell. See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604
F.3d 293, 305 (7th Cir. 2010). Instead, the Seventh Circuit found that “a municipality can be
held liable under Monell, even when its officers are not, unless such a finding would create an
inconsistent verdict.” Thomas, 604 F.3d at 305; see also Swanigan v. City of Chicago, 775 F.3d
953, 962 (7th Cir. 2015).
15
Providing additional guidance, the Seventh Circuit instructs district courts to look at the
factual relationship between the underlying constitutional violation and the Monell claim, as well
as the relief requested, in order to determine when establishment of a Monell claim is necessarily
predicated on proving the underlying liability of the individual officers, stating:
If a § 1983 plaintiff seeks only monetary relief, and if a municipal defendant is
willing (or required) to indemnify individual defendants for compensatory
damages as well as an award of attorney’s fees and costs, a Monell claim against
the municipality will offer a prevailing plaintiff no additional remedy (aside,
perhaps, from nominal damages). In such cases, there is no need for the parties to
spend time and money litigating a Monell claim. If the plaintiff fails to prove a
violation of his constitutional rights in his claim against the individual defendants,
there will be no viable Monell claim based on the same allegations. See e.g., City
of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806
(1986). Accordingly, the judge’s decision to stay the Monell suit while the claims
against the individual officers were litigated to judgment was sensible, especially
in light of the volume of civil-rights litigation that district courts must manage.
In some civil-rights cases, however, a verdict in favor of individual defendants
would not necessarily be inconsistent with a plaintiff’s verdict on a factually
distinct Monell claim. See e.g., Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d
293, 305 (7th Cir. 2010). In still other cases, the plaintiff may want injunction
against future constitutional violations or some other equitable remedy, and he
may be willing to invest the time and effort needed to prove his entitlement to that
relief. In such cases, and this is one, the plaintiff is entitled to try to prove his
Monell claim. Some cases have remedial import beyond the individuals
plaintiff’s claim for monetary damages, and § 1983 provides a vehicle for
obtaining other judicial relief against governmental policies that violate
constitutional rights. See generally David F. Hamilton, The Importance and
Overuse of Policy and Custom Claims: A View From One Trench, 48 DEPAUL
L.REV. 723, 734-35 (1999).
Swanigan, 775 F.3d at 962.
Turning to these factors in the case at hand, the nature of the constitutional violation at
issue is a Fourth Amendment unconstitutional seizure claim. (R.12, ¶¶ 20-40 (Count II).) The
claim for unconstitutional seizure refers to “the actions of Defendant Slechter in stopping Roshad
McIntosh and shooting him with a firearm without just cause” which implicates not only an
unconstitutional seizure claim, but one of excessive force. (See R.12, ¶ 18.) Regarding
16
Defendants Sampim, Zodo and Bowery, Count II refers to their actions “in failing to intervene to
prevent said abuse, despite having the opportunity to do so”. (Id.) The unconstitutional seizure
claim further states that these actions violated McIntosh’s rights under the Fourth Amendment
“to be secure in his person against unreasonable seizure, and his right to due process … and
caused the injuries set forth above.” (Id.) Plaintiff’s Monell claim alleges that the Defendant
City’s unconstitutional policies, practices and customs were a moving force and a proximate
cause of McIntosh’s death. Plaintiff alleges “[t]he actions of Defendants Slechter, Sampi[m],
Zodo and Bowery as alleged above were done pursuant to one or more interrelated de facto
policies, practices and/or customs of the City of Chicago, its police department, Police Board,
I.P.R.A., I.A.D., Personnel Division, and/or Superintendents.” (See R.12, ¶ 22.) The underlying
claims are, in part, premised on the actions of the individual defendants, but are also based on the
presence of policies, practices and customs which include “the failure to properly train and
supervise Chicago police officers with regards to discharging their weapons at civilians,
particularly at young Black men.” (Id., ¶ 23.)
Plaintiff’s constitutional claim alleging unconstitutional seizure and failure to intervene
and eluding to excessive force and due process violations, although somewhat inartfully pled,5
refers to various constitutional violations that factually overlap with, but may still be distinct
from, the Monell allegations. The mere presence of factual overlap, however, does not mandate
that the verdict on liability becomes a necessary predicate, dictating the verdict of Plaintiff’s
Monell claim. At this early stage of litigation, prior to depositions of any individual defendants
and the production of policy and training documents, it is premature to unequivocally state that
5
Plaintiff’s unconstitutional seizure claim and the Monell claim were not challenged by
Defendant Officers in their Rule 12(b)(6) partial motion to dismiss. (See R.20, at 1-2 (solely seeking
dismissal of Plaintiff’s state law claims and related recovery of punitive damages).)
17
there can be no municipal liability in the absence of underlying individual liability. Based on the
parties’ current positions, however, it is plausible to understand a situation in which differing
verdicts of these claims would be compatible—namely based on the Defendants’ assertion of
immunity. Individual public employees are entitled, where applicable, to the defense of qualified
immunity, see generally Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982), but municipalities are not. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398,
63 L.Ed.2d 673 (1980). Indeed, all Defendants have answered and asserted various forms of
immunity from liability—qualified immunity and state-law immunity. (See R.22, Def. Officers’
Partial Answer, Affirmative Defenses, ¶¶ 1-4, 7 (asserting state-law immunity and qualified
immunity); R.27, Def. City’s Answer, Affirmative Defenses, ¶¶ 5-8 (asserting state-law
immunity)).6 As such, bifurcation may not avoid a second trial if the officers are immune, and
that second trial (of the Monell claim) would likely duplicate the first trial against the individual
officers. See e.g., Martinez v. Cook Cnty., No. 11 C 1794, 2011 WL 4686438, at *1-2 (N.D. Ill.
Oct. 4, 2011) (denying bifurcation and stay of discovery, in part, because the defendant asserted
a qualified immunity defense that he was following a “cross-watching” policy authorized by the
Sheriff when the inmate was battered by other inmates); Clarett v. Suroviak, No. 09 C 6918,
2011 WL 37838, at *1-3 (N.D. Ill. Jan 3, 2011) (denying bifurcation because if the officers were
found not liable based on their qualified immunity defense, “there would still be a need for a
second duplicative trial as to the Village’s liability”); Terry v. Cook Cnty. Dep’t of Corrections,
6
Although in addressing the Defendant City’s proposed limited consent to entry of judgment
Plaintiff contends that “this is not the type of case where qualified immunity or scope of employment are
real concerns” (R.35, at 14), Plaintiff focuses on the use of deadly force, which would, based on the
factual allegations of Plaintiff’s First Amended Complaint, only applies to Defendant Schlecter’s shooting
of McIntosh. Defendant Officers Sampim, Zodo and Bowery have also asserted the qualified immunity
affirmative defense, however, and these assertions would directly relate to claims of constitutional
violation against them and the role that any policies, practices and customs in place at the time of
McIntosh’s shooting played in dictating their actions or inactions.
18
No. 09 C 3093, 2010 WL 2720754, at *2-3 (N.D. Ill. July 8, 2010) (denying bifurcation because,
among other things, a jury could find the defendants liable for creating the environment in which
the officers and medical professionals did not have the resources to do more than what they did);
Medina v. City of Chicago, 100 F.Supp.2d 893, 896 (N.D. Ill. 2000) (denying bifurcation
because, among other things, the individual officers asserted qualified immunity).
In addition, because of the early stage at which Defendants brought this motion, it is
premature to speculate on the full breadth of discovery necessary for the constitutional violation
and Monell claims or on the complexity of a trial over these claims. The factual overlap already
apparent between them, however, warrants preservation of duplicating resources by a mutual
discovery process related to these claims prior to trial. Indeed, rather than simplifying the
discovery process over the course of this litigation, bifurcation at this stage may add unnecessary
complexity and confusion. Without reference to any specific concern in Plaintiff’s discovery
requests, Defendants generally argue that the discovery process will be “colossal”, unduly
burdensome, and “will encompass a significant period of time predating the incident underlying
this lawsuit and will involve the systemic policies and practices of the City during the relevant
time period, including the Chicago Police Department’s Bureau of Internal Affairs, the Personnel
Division, the Police Board, the Independent Police Review Authority, and the City Council
oversight activity of these municipal entities.” (See R.28, at 5.) Plaintiff responds that Monell
discovery will be “straight forward and manageable” and “categorized and finite” since the
requested documents have likely been produced in other litigations and “are compiled by the
[I.P.R.A.] within their investigation files into each ‘officer involved shooting.’” (See R.35, at
7-8.) Keeping Plaintiff’s representations in mind, a denial of bifurcation at this point surely
requires Defendants to disclose documents and likely submit to depositions related to various
19
policies and procedures that were maintained and followed at and around the time of McIntosh’s
shooting. To the extent, however, that Defendants find Plaintiff’s Monell discovery requests
overly broad or imposing undue burden and expense, the parties can seek assistance from the
Court to tailor the requests as necessary after making independent good faith attempts to do so.
See e.g., Terry, 2010 WL 2720754, at *3.
Accordingly, the early stage of litigation makes a clear determination of judicial economy
favoring bifurcation in this case speculative at best and when weighed against the fact that the
plaintiff is the master of her complaint, Defendants speculative assertions of the potentially high
costs associated with bringing a claim for municipal liability do not sway the Court’s
consideration. See Awalt v. Marketti, No. 11 C 6142, 2012 WL 1161500, at *11 (N.D. Ill. Apr.
9, 2012) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318
(1987) (“The [well-pleaded complaint] rule makes the plaintiff the master of the claim …”)); id.,
(citing The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed.716
(1913) (“Of course, the party who brings a suit is master to decide what law he will rely upon”).
B.
Undue Prejudice
Discovery in this case has just begun, which makes an analysis of undue prejudice
premature and too speculative at this stage. Defendant City argues that a jury that finds the
individual officers liable could perhaps unfairly and incorrectly find the Defendant City also
liable under Monell. At this stage of the litigation, however, neither Plaintiff nor Defendants
know what evidence will actually be offered at a trial to establish the individual officers’ liability
and Defendant City’s liability. Without knowing what the evidence is and the actual prejudice
being faced, the Court cannot properly assess the potential for any undue prejudice against the
individual officers in having to present their case with Defendant City. To the extent that
20
Defendants continue to have concerns of undue prejudice, the Court—at a later stage—may still
order a bifurcation of trial or can “restrict the evidence to its proper scope and instruct the jury
accordingly.” See Fed. R. Evid. 105; see also Marshbanks v. City of Calumet, No. 13 C 2978,
2015 WL 1234930, at *5 (N.D. Ill. Mar. 16, 2015) (explaining that potential prejudice at trial is
“best cured by proper jury instructions and pre-trial evidentiary challenges”); Awalt, 2012 WL
1161500, at *13 (“The [c]ourt has at its disposal an[y] number of tools to properly order and
organize a trial that will not be unfairly prejudicial to any of the [d]efendants”).
C.
Pragmatism and Recovery of Damages
Defendant City argues that bifurcation and stay of discovery and trial as to Plaintiff’s
Monell claim will not affect Plaintiff’s recovery of any compensatory damages that a jury may
award. Defendant City admits that Defendant Officers “were acting within the scope of their
employment at all relevant times during their encounter with Plaintiff.” (R.28, at 8.) This
concession means that as directed under Illinois law, Defendant City has a statutory and a
contractual obligation to indemnify Defendant Officers for any judgment against them. See 735
ILCS 10/9-102. By the same token, Defendant argues, Plaintiff—as a matter of law—is not
entitled to recover any additional compensatory damages if she prevails against Defendant City
on her Monell claim. Plaintiff’s inability to recover additional damages removes her economic
incentive to proceed with her Monell claim, according to Defendant, and only introduces
concerns of potential abuse of the fee-shifting provisions of Section 1988. To memorialize their
position, Defendants have proferred a “Limited Consent to Entry of Judgment Against Defendant
City of Chicago” which would relieve Plaintiff of her burden to establish municipal liability as
long as she proves her decedent’s constitutional rights were violated by the actions or inactions
of Defendants Slechter, Sampim, Zodo, and/or Bowery. (See R.28, at 2, 12-14; R.28-6, Ex. J,
21
Limited Consent to Entry of Judgment Against Def. City.) While Plaintiff acknowledges that
pursuit of her Monell claim will not yield any monetary benefit beyond that obtained from a
finding of liability on the part of Defendant Officers in McIntosh’s death, Plaintiff also asserts
non-economic motivators for her litigation. Namely, Plaintiff contends that “[p]roving
unconstitutional policies, practices or customs is a significant victory for the Plaintiff as a private
attorney general vindicating the underlying Congressional intent for the Civil Rights Acts.”
(R.35, at 11 (citing Cadiz v. Kruger, No. 06 C 5463, 2007 WL 4293976, at *10 (N.D. Ill. Nov.
29, 2007).) Defendant City’s limited consent to entry of judgment does not extinguish Plaintiff’s
Monell claim. If Defendant City’s motion succeeds at this early stage on Defendant’s
generalities, however, it effectively deprives Plaintiff of her right and ability to be the “master of
[her] complaint and proof,” and to proceed, as is guaranteed by the Supreme Court and 42 U.S.C.
§ 1983, on her independent Monell claim against Defendant City. See e.g., Holmes v. Group,
Inc. v. Vornado Air Circulations Sys, Inc., 535 U.S. 826, 831 (2002); Garbie v. Daimler Chrysler
Corp., 211 F.3d 407, 410 (7th Cir. 2000).
Plaintiffs in Section 1983 civil actions have other important objectives, which Defendant
City does not deny exist. (See e.g., R.43, at 8.) These objectives include deterrence and reform
that would be furthered by a judgment holding Defendant City liable for Defendant Officers’
misconduct. Plaintiff argues that Defendant City has “allowed police officers to fatally shoot
young Black men with impunity” and that its “failure[] to train, supervise and discipline, lead
[sic] these individual Defendant Officers to either shoot or fail to intervene.” (R.35, at 12.) A
judgment against a municipality can be a catalyst for change, because it “not only holds that
entity responsible for its actions and inactions, but also can encourage the municipality to reform
the patterns and practices that led to constitutional violations, as well as alert the municipality
22
and its citizenry to the issue.” Medina, 100 F.Supp.2d at 897 (citing Amato v. City of Saratoga
Springs, 170 F.3d 311, 317-19 (2d Cir. 1999)).
Furthermore, bifurcation of this case at such an early stage is not in the interests of Rule
42(b)’s purposes. It is premature to find that a complete separation of discovery and trial are
warranted and conducive to expedition and economy based on generalizations being made at the
dawn of discovery. See Fed. R. Civ. P. 42(b); see also Chlopek, 499 F.3d at 700. Balancing the
considerations of convenience, economy, expedition, and prejudice, absent additional
information, is simply too speculative. See Houskins, 549 F.3d at 495. The Court recognizes,
however, that factual overlap exists between Plaintiff’s Monell claim and the Defendant
Officers’ individual liability based on unconstitutional seizure, use of deadly force, and failure to
intervene. The Court further recognizes that progression of discovery will define the factual
contours in this case and may indicate that a liability determination against Defendant Officers is
in fact a necessary predicate for establishing the Monell claim. Plaintiff’s Monell claim is
ultimately based on the injury resulting from McIntosh’s shooting and death—a single incident
that occurred between identified parties, namely, McIntosh and Defendant Officers. Because
Monell claims carry a heavy burden of discovery and proof, the Court finds that while
bifurcation of trial and stay in discovery of the Monell claim is not warranted at this early stage,
a sequential assignment in the discovery process is. In particular, because a single incident
between identifiable parties underlies this case, prioritization of the discovery surrounding that
incident is beneficial. Accordingly, the Court directs the parties to defer discovery on the Monell
claim until after the completion of fact discovery on the claims against Defendant Officers.7
7
This does not preclude Plaintiff from inquiring of the individual Defendant Officers at their
depositions as to subjects that might also pertain to her Monell claim.
23
While not foreclosing the opportunity for Plaintiff to further develop her case against the
individual Defendant Officers through Monell discovery relating to the Defendant City’s
policies, practices and procedures, this sequential movement of the discovery process will
prioritize the claims of a smaller and more manageable dispute between the parties. To the
extent that dispute encourages or results in a more narrow focus to the claims against Defendants
or even potentially disposes of any portion of the case by agreement, the purposes of Rule 42(b)
will have been served.
CONCLUSION
For the forgoing reasons, the Court grants in part and denies in part Defendant Officers’
partial motion to dismiss. The Court further denies Defendant City’s motion to bifurcate
Plaintiff’s Monell claims and stay discovery and trial on those claims pending resolution of the
claims against Defendant Officers, without prejudice to a renewed motion for bifurcation of trial
after discovery is completed.
DATED: September 2, 2015
ENTERED
_________________________________
AMY J. ST. EVE
United States District Court Judge
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