Casimir v. City Of Chicago et al

Filing 61

MEMORANDUM and Order Signed by the Honorable Joan B. Gottschall on 3/7/2017.Mailed notice(mjc, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEROME J. CASIMIR a/k/a JEROME J.
DUMAS and BETTY J. DUMAS,

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

Case No. 15 C 3771
Judge Joan B. Gottschall

MEMORANDUM AND ORDER
Before the court is defendants’ motion to dismiss the pro se plaintiffs’ second amended
complaint with prejudice for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). For the following reasons, the motion is granted in part and denied in part.
I. BACKGROUND
A. Procedural History
Having received leave under 28 U.S.C. § 1915(a) to proceed without paying the filing
fee, Jerome J. Casimir (“Casimir”), who represents himself, commenced this civil action by
filing his complaint on April 29, 2015. (Dkt. 1, 6.) Casimir moved for leave to amend his
complaint and add Betty J. Dumas (“Dumas”) as a plaintiff before defendants responded to the
original complaint. (Dkt. 16, 17.) The court granted his request. (Dkt. 22).
Like the original complaint, plaintiffs’ first amended complaint had four counts: Count
One, § 1983 claim for “malicious harassment”; Count Two, § 1983 claim for “due process”;
Count Three, claim for indemnity against the City of Chicago; and Count Four, “state law claim
for respondeat superior.” Defendants moved to dismiss the first amended complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
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granted. The court granted that motion and dismissed the first amended complaint on February
16, 2016. (Dkt. 32.) The court, however, granted plaintiffs leave to amend Count One. (Id. at 1,
6.) The court dismissed Count One for failure to comply with the pleading standard of Federal
Rule of Civil Procedure 8(a)(2):
Plaintiffs make a claim for “malicious harassment” based on the
false issuance of the ticket; a secret investigation (not described);
surrounding plaintiffs’ residence with police; forcing one of the
plaintiffs to move and ruining his credit and reputation, and
“remov[ing] government records like fire reports to cover
corruption and assist crime because people be [sic] afraid on the
street.” Apart, however, from the detailed allegations about the
baseless ticket, none of these allegations are described, and the
court is unable to fulfill its function of making sure that the
allegations are plausible and that the allegations give the
defendants sufficient notice of what plaintiffs are complaining
about. Plaintiffs’ amended complaint contains little in the way of
facts and lots in the way of useless legal boilerplate and legal
conclusions. Plaintiffs also fail to provide any facts justifying their
claim for $500,000 in damages.
(Order 4, Feb. 16, 2016, Dkt. 32.)
After receiving an extension of their deadline to amend, plaintiffs filed their second
amended complaint (Dkt. 40), which is now before the court. Count One is now titled
“malicious harassment claim and illegal search.” (2d Am. Compl. 2.) And plaintiffs replead
their state law indemnity and respondeat superior claims as Counts Two and Three respectively.
B. Facts
The following factual summary comes from the second amended complaint. For
purposes of deciding the Rule 12(b)(6) motion that is before the court, the court treats all the
well-pleaded allegations in the complaint as true and draws all reasonable inferences in

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plaintiffs’ favor. Manistee Apts., LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016);
Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir. 2016).
Most of the allegations in the complaint stem from an interaction with police that
occurred on July 22, 2014, but the plaintiffs describe a separate incident in their second amended
complaint that occurred approximately one week earlier. (See 2d Am. Compl. ¶ 8.) In that
earlier incident, two Chicago police officers stopped the plaintiffs without probable cause, made
them stand with their hands on a car, and ran “their hands all over [the plaintiffs].” (Id.) The
officers covered their badges. (Id.) They searched Casimir’s book bag and Dumas’ purse before
telling them that they could leave. (Id.)
About a week later, on July 22, 2014, the plaintiffs stopped at a bus stop to fix a wheel
that had broken on one of the suitcases they were pulling. (Id. ¶ 5.) An unmarked police car
pulled up next to them and two Chicago police officers got out, covering their badges. (Id.) At
least one of the officers yelled, “You drinking [sic], I see a beer on the ground don’t you lie to
me because I can take both of you down.” (Id.) The officers searched Casimir’s pockets. (Id. ¶
6.) Dumas initially refused to show the officers her identification when they asked for it, but she
relented because Casimir told her that they would have to go to the police station if she did not.
(Id.)
The officers forged Casimir and Dumas’ signatures 1 on tickets that falsely accused them
of drinking a Coors beer. (Id. ¶ 3, 4.) Plaintiffs first learned of the tickets when they received a
default administrative order on or around September 18, 2014. (Id. ¶ 4.) The Circuit Court of
Cook County may have dismissed the tickets as “unfounded and frivolous” on an unspecified
later date. (Id. ¶ 19.)
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The second amended complaint does not make entirely clear to whom the tickets were issued. Paragraphs three
and four allege that plaintiffs’ signatures were forged, but paragraph nineteen of the complaint can be read as
alleging that the Cook County Circuit Court dismissed “tickets against Betty J. Dumas.”

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The “Police Accountability Task Force, tasked by Mayor Rahm Emanuel, indicates 72%
of people stopped by Chicago police were black.” (Id. ¶ 11; see also id. Ex. A (copy of report
attached to complaint).) The second amended complaint goes on to allege that the defendants
acted maliciously.
II. RULE 12(b)(6) STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, (2007)); Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir.
2016) (quoting Twombly, supra). A complaint satisfies this standard when its factual allegations
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also
Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (“[T]he complaint taken as a whole
must establish a nonnegligible probability that the claim is valid, though it need not be so great a
probability as such terms as ‘preponderance of the evidence’ connote.”); Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subjectmatter of the case to present a story that holds together.”). When deciding a motion to dismiss
under Rule 12(b)(6), the court takes all facts alleged by the plaintiff as true and draws all
reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations
that merely recite the elements of a claim are not entitled to this presumption of truth. KatzCrank, 843 F.3d at 646 (citing Iqbal, 556 U.S. at 662, 663); Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011).
III. THE CHICAGO POLICE DEPARTMENT IS DISMISSED
The Chicago Police Department is dismissed as a defendant because it is not a suable
entity. Plaintiffs leave this issue to the court to decide in their response. “The Chicago Police

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Department does not enjoy a legal existence independent of the City of Chicago and cannot be
sued as a separate entity.” Bonds v. City of Chicago, No. 16 C 5112, 2017 WL 698680, at *1 n.1
(N.D. Ill. Feb. 22, 2017) (citing Chan v. Wodnicki, 123 F.3d 1005, 1007 (7th Cir. 1997) and
Sabovcik v. Castillo, No. 2:08-CV-279RM, 2009 WL 1285889, at *2 (N.D. Ind. May 5, 2009));
accord., e.g., Gray v. City of Chicago, 159 F. Supp. 2d 1086, 1089 (N.D. Ill. 2001) (“The Police
Department is not a suable entity, but merely a department of the City of Chicago which does not
have a separate legal existence.” (citing Jordan v. City of Chicago, Dep’t of Police, 505 F. Supp.
1, 3-4 (N.D. Ill. 1980) (other citations omitted)). As such, plaintiffs’ claims against the Chicago
Police Department must be dismissed. See Reese v. Chicago Police Dep’t, 602 F. Supp. 441,
443 (N.D. Ill. 1984) (holding that when the Chicago Police Department is named as a defendant,
the proper remedy is to dismiss it as a party).
IV. “MALICIOUS HARASSMENT AND ILLEGAL SEARCH” (COUNT ONE)
Under 42 U.S.C. § 1983, a plaintiff can sue if: “(1) there has been a violation of
constitutional or other federal rights and (2) those rights were violated by a person acting under
color of state law.” Narducci v. Vill. of Bellwood, 444 F. Supp. 2d 924, 929 (N.D. Ill. 2006)
(citing Hanania v. Loren–Maltese, 212 F.3d 353, 356 (7th Cir. 2000)); accord. Racine Charter
One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 680 (7th Cir. 2005). Defendants read
Count One as pleading claims falling into two categories.
A. The Fourth Amendment Allegations Can Be Reconciled With the Prior Complaints
Defendants do not contend that the second amended complaint fails to state a Fourth
Amendment violation stemming from either the July 22, 2014, incident or the incident that
occurred approximately one week earlier. Instead, they argue that the new facts and theories

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pleaded in the second amended complaint are “entirely inconsistent” with the allegations in the
original and first amended complaints. (Mot. to Dismiss 6.)
“Generally, a case should not be dismissed because of inconsistencies between the
original and the amended complaint unless the circumstances are such that the court is required
to fall back on the original complaint in the interest of justice.” Whitehouse v. Piazza, 397 F.
Supp. 2d 935, 941 (N.D. Ill. 2005) (citing Wallace v. N.Y. Dep't of Corr., No. 95 CV 4404, 1996
WL 586797, *2 (E.D.N.Y. Oct. 9, 1996)). Plaintiffs often plead new facts and legal theories in
an amended complaint in an effort to cure deficiencies identified in a ruling on a motion to
dismiss a prior complaint. See, e.g., United States ex rel. Ivanich v. Bhatt, No. 13 C 4241, 2015
WL 249413, at *2 (N.D. Ill. Jan. 20, 2015) (finding that “the new facts asserted in Ivanich's
amended complaint do not remedy the pleading deficiencies identified in [the plaintiff’s] original
complaint”); In re Bally Mfg. Secs. Litig., 144 F.R.D. 78, 80 (N.D. Ill. 1992) (considering
whether the plaintiffs “allege sufficient new facts to cure the deficiencies in its original amended
complaint”); see also Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir. 1991) (affirming
denial of motion to amend complaint in part because the new complaint presented no “new
facts”); Katris v. City of Waukegan, 498 F. Supp. 48, 50 (N.D. Ill. 1980) (holding newly added
count in amended complaint survived Rule 12(b)(6) motion); Gunter v. Vill. of Gilberts, No. 91
C 3389, 1993 WL 75095, at *1 (N.D. Ill. Mar. 15, 1993) (considering sufficiency of courtordered affidavit of new facts the plaintiff would include in a proposed amended complaint).
Indeed, permitting inconsistencies within a complaint or among complaints to defeat an
otherwise sufficient amended complaint “would defeat the purpose of allowing a plaintiff to
amend; frustrate Rule 12(b)(6)'s requirement that all factual allegations be accepted as true; and

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complicate Rule 8(a)'s requirement that the pleadings only have to provide fair notice of the basis
for plaintiff's claims.” Whitehouse, 397 F. Supp. 2d at 941.
The second amended complaint filed in this case can be reconciled with the prior
complaints. See id. (“While the original and amended complaints in this case could be read to
[imply] inconsistent factual statements, that is not dispositive. Several key facts remain
consistent between the complaints . . . .”). Defendants point to the following allegation in the
first amended complaint concerning the July 22, 2014, incident as conflicting with the second
amended complaint: Dumas “refused to allow [the officers] to see her ID but was advised by
[her] husband to allow it so they would not have to go to the police station.” (1st Am. Compl. ¶
7, Dkt. 24; see also id. ¶ 9.) That allegation, according to defendants, is a judicial admission that
Dumas consented to the officers’ searching her. The second amended complaint contains
substantially the same allegation, however. (Dkt. 40 ¶6 (“Betty refused to allow them to see her
ID; [h]owever, Casimir told Betty to allow them to see her ID so we would not have to go to the
police station.”).) The allegation that the officers searched Casimir’s pockets appears for the first
time in the second amended complaint (see id.), but none of the complaints filed so far in this
action specify where either plaintiff kept whatever was produced as identification. Because the
reasonable inference could be drawn that plaintiffs had their identification documents in, say, the
suitcases that were with them, Casimir’s allegations that the officer searched his pockets does not
present an irreconcilable conflict with his prior complaints. Indeed, even if his identification
documents were in his pockets, nothing in any of the complaints precludes the reasonable
inference (which the court must draw in plaintiffs’ favor at this stage) that the officer searched
Casimir’s pockets anyway after he produced identification. Because plaintiffs’ complaints can

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be reconciled as to the Fourth Amendment claims pleaded in the second amended complaint,
defendants’ request to dismiss those claims is denied.
B. The Second Amended Complaint Includes an Equal Protection Claim
Next, defendants argue that Count One must be dismissed to the extent that it seeks to
impose § 1983 liability for verbal harassment that does not rise to the level of a constitutional
violation. Defendants cite Kohlman v. Village Of Midlothian, 833 F. Supp. 2d 922, 939-40 (N.D.
Ill. 2011), The court in Kohlman dismissed the § 1983 claims of two members of the Hells
Angels motorcycle club against the mayor of the Village of Midlothian, its police chief, and one
of its police officers, stating that “there is no constitutional right to be free from harassment by
state officials.” Id. at 940 (citations omitted). Aside from the fact that the Kohlman court
expressly stated that it did not “need [to] reach” the issue, it was not applying the Fourteenth
Amendment’s Equal Protection Clause in a challenge to racially motivated disparate treatment.
See id. at 939–40.
Here, plaintiffs’ second amended complaint expressly brings an Equal Protection claim.
(Dkt. 40 ¶ 1 (“City of Chicago by and through its Police Department and (above named
defendants) conspired to deprive plaintiff directly and indirectly of equal protection and
privileges of the law”).) Viewed in a light favorable to plaintiffs, the second amended complaint
also links the two stop-and-frisk incidents to Chicago police department policy, as well as
evidence that 72% of people stopped by them were African American. (See id. ¶¶ 2, 11.)
Defendants do not conduct an Equal Protection analysis in the instant motion. And the briefing
and second amended complaint do not otherwise adequately develop the issues potentially raised
by the plaintiffs’ Equal Protection claims. See, e.g., Smith v. City of Chicago, 143 F. Supp. 3d
741, 755–56 (N.D. Ill. 2015) (denying motion to dismiss the Equal Protection claims of thirty-

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three “[p]laintiffs [who] alleged they are all African-American or Hispanic men who live in or
visit minority neighborhoods where Chicago police officers target them and conduct
suspicionless stops and frisks based on their race and/or national origin pursuant to the City's
unconstitutional practice”). Rather than contrive arguments on this score, the court denies the
motion to dismiss the plaintiffs’ Equal Protection claims.
V. INDEMNITY AND RESPONDEAT SUPERIOR COUNTS (COUNTS TWO AND THREE)
The second amended complaint contains three counts, even though the court granted the
plaintiffs leave only to replead Count One. To the extent Counts Two and Three are related to
plaintiffs’ § 1983 claim, the court strikes them because leave of court is required to amend a
complaint. See Fed. R. Civ. P. 15(a)(2); Jones v. United Airlines, No. 11 C 6374, 2012 WL
6216741, at *9 (N.D. Ill. Dec. 13, 2012) (collecting cases striking under Rule 15(a) in this
district, striking amended complaint filed without leave, and stating that “plaintiff’s failure to ask
leave to amend is sufficient reason to grant defendant's motion to strike”); Videojet Systems Int’l,
Inc. v. Inkjet, Inc., No. 95 C 7016, 1997 WL 124259, at *6 (N.D. Ill. Mar. 17, 1997) (striking
affirmative defense in amended pleading because party did not obtain leave of court as Rule
15(a) requires). But to the extent Counts Two and Three relate to plaintiffs’ newly pleaded state
law claims, the court retroactively grants plaintiffs leave to plead them. See Fed. R. Civ. P.
15(a)(2).
Defendants argue in their motion to dismiss that “plaintiffs’ Amended Complaint does
not allege any state law claims.” (Mot. to Dismiss 7, Dkt. 43.) Therefore, continue defendants,
the indemnity and respondeat superior counts should be dismissed.
Plaintiffs, however, have pleaded new state law claims in Count One. In addition to a
Fourth Amendment claim, plaintiffs repeatedly accuse defendants of “malicious prosecution” in

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Count One. (E.g., 2d Am. Compl. ¶ 12, ¶¶ 15–18, 20–22 (“The prosecution of this action against
plaintiff was malicious and brought without any cause to believe that a crime or any other cause
of action had been committed.”).) Plaintiffs also plead that defendants violated unspecified
provisions of the Illinois constitution. (See id. ¶¶ 23, 27.) Defendants may be relying on the lack
of a separate heading for these claims, but “[a] document filed pro se is ‘to be liberally
construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citations omitted).
The order dismissing plaintiffs’ first amended complaint expressly stated that the respondeat
superior count was dismissed because no state law claims were pleaded, adding that “[i]f
plaintiffs bring a state malicious prosecution claim, the doctrine of respondeat superior may
apply.” (Dkt. 32 at 5–6.) Particularly in light of that statement, plaintiffs’ intent to add Illinois
constitutional and malicious prosecution claims in their second amended complaint is clear
enough for a pleading filed without counsel’s assistance. See Fed. R. Civ. P. 8(e) (“Pleadings
must be construed so as to do justice.”).
Defendants attack neither state law theory in the instant motion, and the court will not
invent arguments for them. Accordingly, the court does not pass upon the sufficiency of any of
the plaintiffs’ Illinois law claims. See Erickson, 551 U.S. at 94–95 (“Whether petitioner's
complaint is sufficient in all respects is a matter yet to be determined, for respondents raised
multiple arguments in their motion to dismiss.”).
VI. CONCLUSION
Defendants’ motion to dismiss (Dkt. 43) is granted in part and denied in part. In their
second amended complaint, plaintiffs state a Fourth Amendment claim for which relief can be

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granted. They also bring Equal Protection claims, malicious prosecution claims, and Illinois
constitutional claims. To be clear, plaintiffs’ respondeat superior allegations are stricken insofar
as they pertain to plaintiffs’ § 1983 claims, but plaintiffs are granted leave to plead respondeat
superior and indemnity claims related to their state law claims. Additionally, the Chicago Police
Department is dismissed as a party.
Because plaintiffs’ complaint states § 1983 claims for which relief can be granted, the
court exercises its discretion to recruit counsel to represent plaintiffs. A status conference is set
for April 7, 2017, at 9:30 a.m.

Date: March 7, 2017

/s/
Joan B. Gottschall
United States District Judge

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