Karney v. Naperville Police Department et al

Filing 49

MEMORANDUM Opinion and Order: For the foregoing reasons, (1) the City's Motion to Dismiss and Motion to Strike, 29 , is denied; (2) Officer Fletcher's Motion to dismiss, 33 , is denied; and (3) Officer Boogerd's Motion to Dismiss, [ 32],is granted as to Count Four of the Second Amended Complaint and denied in all other respects. Defendants are directed to file a joint status report on or before October 28, 2016. Status hearing set for 11/1/2016 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 10/18/2016:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK KARNEY,
Plaintiff,
v.
CITY OF NAPERVILLE; T.J. BOOGERD;
MATT FLETCHER; and JOHN DOE
OFFICER #3,
Defendant.

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Case No: 15 C 4608
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff Patrick Karney fell asleep in his car in the parking lot of a
McDonald’s restaurant in the City of Naperville sometime before midnight on May
25, 2013. He alleges that his constitutional rights were violated in connection with
his arrest in the early morning hours of May 26, 2013, after he was awakened and
questioned by Naperville police officers T.J. Boogerd and Matt Fletcher. Karney
filed the Original Complaint, R. 1, on May 26, 2015, and the First Amended
Complaint, R. 10-1, on August 6, 2015. By memorandum opinion and order dated
October 22, 2015, the Court substituted the City of Naperville as the defendant in
place of the Naperville Police Department, and then granted in part and denied in
part with leave to replead the “Rule 12(b)(6) Motion to Dismiss,” R. 13, filed by the
City on September 4, 2015. See R. 23 (Karney v. City of Naperville, 2015 WL
6407759 (N.D. Ill. Oct. 22, 2015)) (the “October 22, 2015 Order”). Plaintiff filed the
Second Amended Complaint on November 20, 2015. R. 46. On December 4, 2015,

the City filed a “Rule 12(b)(6) Motion to Dismiss and Rule 12(f) Motion to Strike.”
R. 29. On December 18, 2015, Officer Boogerd filed a “Rule 12(b)(5) and 12(b)(6)
Motion to Dismiss,” R. 32, and, on December 21, 2015, Officer Fletcher filed an
“Amended Rule 12(b)(6) Motion to Dismiss,” R. 33. By docket entry dated
September 30, 2016, the Court denied Defendants’ motions. R. 47. By docket entry
dated the same day as this memorandum opinion and order, the Court has vacated
the September 30 docket entry insofar as it denied Officer Boogerd’s motion to
dismiss Count Four of the Second Amended Complaint and in its place has granted
dismissal as to Count Four instead. The Court now sets forth in this memorandum
opinion and order the reasons for the September 30 order and the order entered
today that partially vacates the September 30 order.
BACKGROUND
The facts as alleged in the Second Amended Complaint will not be repeated
here as they are nearly identical to the facts alleged in the First Amended
Complaint. Those facts are set forth in the Court’s October 22, 2015 Order. The only
exception are two additional factual allegations in support of Plaintiff’s Monell
claim against the City, which the Court will discuss when addressing the City’s
motion to dismiss.
DISCUSSION
A.

OFFICER BOOGERD’S MOTION TO DISMISS

Officer Boogerd raises a number of issues in his motion to dismiss. The Court
will address each of these in turn.

2

1.

SERVICE OF PROCESS

Officer Boogerd first argues that Plaintiff’s claims against him should be
dismissed pursuant to Fed. R. Civ. P. 12(b)(5) for failure to serve process within 120
days after the complaint was filed. See Fed. R. Civ. P. 4(m). 1 Plaintiff filed this suit
on May 26, 2015. Therefore, Officer Boogerd argues, Plaintiff should have served
him on or before September 23, 2015, which he failed to do. Boogerd contends that
Plaintiff cannot show good cause for his failure to effect timely service on him, and
that Plaintiff’s claims against him therefore should be dismissed.
The Court rejects Officer Boogerd’s service of process argument for two
reasons. First, Officer Boogerd uses the date on which this action was filed, May 26,
2015, for the date on which the 120-day period was triggered. But Officer Boogerd
was not named as a defendant in the Original Complaint. Instead, Officer Boogerd
was first named as a defendant on August 6, 2015, when Plaintiff filed the First
Amended Complaint. 2 Pursuant to Rule 4(m), Plaintiff had 120 days from August 6,
Rule 4(m) was amended effective December 1, 2015 to shorten the time period for
service of process from 120 days to 90 days. The amendment “govern[s] in all
proceedings in civil cases thereafter commenced and, insofar as just and practicable,
all proceedings then pending.” Order (U.S. Apr. 29, 2015) (available at
http://www.supremecourt.gov/orders/courtorders/frcv15%28update%29 1823.pdf).
This case was pending when the amendment took effect. It would not be just and
practicable, however, to apply the shortened time period of amended Rule 4(m)
because the period in which service of process was supposed to have taken and in
fact did take place was before the amendment took effect. Therefore, the 120-day
period of the pre-amended Rule 4(m) should apply. Neither party contests the
applicability of the pre-amended rule.
1

August 6, 2015 is the date on which Plaintiff filed a motion seeking leave to
amend, with the proposed First Amended Complaint attached as an exhibit to that
motion. See R. 9; R. 10. This Court granted Plaintiff’s motion to amend on August
20, 2015. See R. 12. But because Plaintiff sought to amend prior to the filing of any
2

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2015 to serve Officer Boogerd, which means he had until December 4, 2015.
Plaintiff served Officer Boogerd with a waiver of service of summons, Fed. R. Civ. P.
4(d), on October 23, 2015. See R. 32-1 at 3. Boogerd’s attorney executed the waiver
of service on November 3, 2015, and Plaintiff filed it with the Court on November 4,
2015. See R. 25. Plaintiff thus obtained service of process over Officer Boogerd on
November 4, 2015. See Fed. R. Civ. P. 4(d)(4) (“When the plaintiff files a waiver,
proof of service is not required and these rules apply as if a summons and complaint
had been served at the time of filing the waiver.”). As a result, Plaintiff obtained
service over Officer Boogerd prior to the December 4, 2015 deadline. 3
Second, even if the time for service expired before Plaintiff served Officer
Boogerd, the Court still would reject Boogerd’s service of process argument. The
pre-amendment version of Rule 4(m) states:
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without
responsive pleading or motion to dismiss, he did not need leave of court to file the
First Amended Complaint. See Fed. R. Civ. P. 15(a)(1)(B). Therefore, the Court
considers the effective date of filing to be the date on which Plaintiff filed the
motion to amend with the First Amended Complaint attached thereto.
Officer Boogerd suggests that, notwithstanding his execution and filing of a waiver
of service, Plaintiff’s service of process on him was defective because Plaintiff never
obtained the issuance of a summons. Because Officer Boogerd executed a waiver of
service, however, a summons was not required. See Fed. R. Civ. P. 4, advisory
committee notes, 1993 amendment, The Caption of the Rule (“Unless service of the
summons is waived, a summons must be served whenever a person is joined as a
party against whom a claim is made.”); Fed. R. Civ. P. 4, advisory committee notes,
1993 amendment, Subdividsion (d) (“It is hoped that, since transmission of the
notice and waiver forms is a private nonjudicial act, does not purport to effect
service, and is not accompanied by any summons or directive from a court, use of
the procedure will not offend foreign sovereignties . . . .”) (emphasis added).
3

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prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.
Boogerd argues that Plaintiff cannot establish “good cause” for an extension under
Rule 4(m), and contends that the Seventh Circuit has “counseled against retroactive
extensions of time where a plaintff’s failure to serve a defendant is caused by his
lack of diligence.” R. 32-1 at 4 (citing Dumas v. Decker, 556 Fed. App’x 514, 515 (7th
Cir. 2014)). But the Court need not decide whether Plaintiff can show good cause for
failing to effect service within the 120-day period because Rule 4(m) preserves the
Court’s discretion to extend the deadline for service of process even without a
showing of good cause. See Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th
Cir. 1998) (“Even if a plaintiff does not establish good cause, the district court may
in its discretion grant an extension of time for service.”). As the advisory notes
explain, Rule 4(m) “authorizes the court to relieve a plaintiff of the consequences of
an application of this subdivision even if there is no good cause shown. Such relief
. . . may be justified, for example, if the applicable statute of limitations would bar
the refiled action, or if the defendant is evading service or conceals a defect in
attempted service.” Fed. R. Civ. P. 4, advisory committee notes, 1993 amendment,
Subdivision (m). 4

Citing to McDonald v. United States, 898 F.2d 466, 468 (5th Cir. 1990), and In re
Cooper, 971 F.2d 640, 641 (11th Cir. 1992), Boogerd argues that “[d]ismissal for
delayed service or process is not left to the general discretion of the district court
but, rather, is mandatory unless good cause is shown.” R. 32-1 at 4. That argument
is incorrect. See Stanley v. Martin, 2013 WL 331267, at *3 (N.D. Ill. Jan. 29, 2013)
(noting that the McDonald and Cooper cases were decided prior to the 1993
4

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“[D]istrict courts are permitted to take factors like a statute of limitations
bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service into
account” in deciding whether to exercise discretion to allow relief from the 120-day
rule. Troxell, 160 F.3d at 383l; see United States v. McLaughlin, 470 F.3d 698, 701
(7th Cir. 2006) (noting the “wisdom of Rule 4(m) in allowing a judge to excuse a
delay in service even if the plaintiff has no excuse at all”). Officer Boogerd argues
that the only factor the Court should consider is whether Plaintiff exercised due
diligence in attempting to serve him. But even if the Court were to resolve in favor
of Boogerd all factual disputes presented by the parties in their briefing concerning
Plaintiff’s counsel’s diligence (or, in Boogerd’s view, lack thereof), the Court still can
exercise its discretion to grant an extension in Plaintiff’s favor. Although a district
court is not required to excuse untimely service, the Seventh Circuit expects most
district courts to consider the balance of hardships when determining whether to
dismiss a complaint for lack of timely service. As the Seventh Circuit has explained:
Where as in this case the defendant does not show any
actual harm to its ability to defend the suit as a
consequence of the delay in service, where indeed it is
quite likely that the defendant received actual notice of
the suit within a short time after the attempted service,
and where moreover dismissal without prejudice has the
effect of dismissal with prejudice because the statute of
limitations has run since the filing of the suit * * * most
district judges probably would exercise lenity and allow a
late service, deeming the plaintiff’s failure to make timely
service excusable by virtue of the balance of hardships.
amendments to the federal rules, “which resulted in current Rule 4(m),” under
which the district court “has the discretion to grant an extension, even in the
absence of good cause”).
6

Coleman v. Milwaukee Bd. of Sch. Directors, 290 F.3d 932, 934 (7th Cir. 2002).
The Court concludes that the balance of hardships in this case tips in favor of
excusing late service, even if Plaintiff’s counsel acted less than diligently (which the
Court does not decide here). Plaintiff’s delay in serving Boogerd was not so great
that the Court can infer any actual harm to his ability to defend this suit, and in
fact Boogerd has not argued that he suffered any prejudice. “When delay in service
causes zero prejudice to the defendant or third parties (or the court itself), the
granting of extensions of time for service, whether before or after the 120–day
period has expired, cannot be an abuse of discretion.” McLaughlin, 470 F.3d at 701.
Moreover, it is likely that Officer Boogerd received actual notice of the suit within a
short time after the case was filed because Plaintiff served the Naperville Police
Department 5 and the same attorney representing the City (originally named as the
Naperville Police Department) also is representing Officer Boogerd. The service
issue will not cause any further delay in the case because Plaintiff successfully
obtained service over Boogerd a little over a month after the 120-day deadline.
Finally, dismissal without prejudice pursuant to Rule 4(m) in this case would have
the effect of dismissal with prejudice because the statute of limitations ran after
Plaintiff filed suit and before Plaintiff served Boogerd. The consequences for
Plaintiff if the Court does not allow an extension far outweigh the prejudice to
Officer Boogerd if an extension is granted. Given the judicial preference for
adjudication on the merits rather than a procedural default, the Court will exercise
The City has not contested the adequacy of Plaintiff’s service of process on the
Naperville Police Department.

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its discretion to allow the late service (as an alternative to finding that service was
timely).
2.

FALSE ARREST CLAIM

Officer Boogerd next argues that Plaintiff’s § 1983 claim predicated on a false
arrest (Count One) should be dismissed because Plaintiff has failed to plausibly
allege he was arrested without probable cause. “Probable cause to arrest is an
absolute defense to any claim under Section 1983 against police officers for wrongful
arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). Plaintiff
alleges facts that would support a claim that Officer Boogerd lacked probable cause
to arrest him for driving under the influence of alcohol, and Officer Boogerd appears
to concede as much. See R. 32-1 at 6 (“Plaintiff’s allegations might support a claim
that an arrest for DUI-Alcohol was without probable cause”). But Boogerd also says
that while it is “true” that “there was no probable cause to arrest Plaintiff for
driving while impaired by alcohol,” it “is also completely irrelevant,” R. 41 at 6,
because Plaintiff was not arrested for driving under the influence of alcohol.
Instead, Boogerd claims, Plaintiff was arrested for driving while under the influence
of drugs and for driving on a suspended driver’s license. Id.
The complaint alleges that the police officers told Plaintiff he was under
arrest for suspicion of driving while under the influence of alcohol. R. 46 at 5
(¶ 34). 6 Boogerd asks the Court to make a factual finding contrary to this allegation,

The complaint uses the term “DUI,” which can mean driving under the influence
of either alcohol or some other drug. But the allegations make clear that Plaintiff

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namely, that the reasons for Plaintiff’s arrest was suspicion of driving while under
the influence of drugs and driving with a suspended license. He attaches to his
motion to dismiss certain documents to prove that Plaintiff was charged with these
two offenses, which he asks the Court to judicially notice. The documents include
state court documents showing that Plaintiff was charged with driving under the
influence of drugs and driving without a valid license. In addition, Boogerd attaches
a copy of Plaintiff’s driving record generated by the Illinois Secretary of State,
which Boogerd contends shows that Plaintiff did not have a valid license or permit
at the time of his arrest.
It may very well be, as Officer Boogerd contends, that the documents in
question establish what Boogerd say they do and that the Court can in fact take
judicial notice of them. But even so, the documents do not definitively establish the
reasons for which Plaintiff was arrested, and, more to the point, they do not
establish as a matter of law that Boogerd had probable cause to arrest Plaintiff.
To begin with, Officer Boogerd does not explain why it makes any difference
that Plaintiff might have been arrested for driving while under the influence of
drugs rather than for driving while under the influence of alcohol. The complaint
alleges that the only facts known to the arresting officers on which they based their
belief that Plaintiff had operated a motor vehicle while under the influence were the
facts that he was sleeping in his car and sweating. R. 35 at 4. If Boogerd concedes,
as he does, that these facts are insufficient to establish probable cause for an arrest
understood the officers to mean he was under arrest for driving while under the
influence of alcohol.
9

for driving under the influence of alcohol, then he also must concede that these facts
are insufficient to establish probable cause for an arrest for driving under the
influence of drugs. Plaintiff’s allegations plausibly suggest that there was nothing
about his demeanor, behavior, or conduct that would have given the officers
probable cause to conclude that Plaintiff was under the influence of anything,
whether alcohol or drugs, on the night of his arrest.
Boogerd also ignores facts alleged in the complaint that support the
conclusion that he lacked probable cause to arrest Plaintiff for driving without a
valid drivers license, even if one assumes that Plaintiff in fact did not have a valid
drivers license. The complaint alleges that the arresting officers asked Plaintiff for
his drivers license, that Plaintiff heard one of the officers “run” his name over the
radio to validate information, and that Plaintiff overheard a voice on the other end
of the radio state “he’s clear.” R. 46 at 4-5. Even if, as Boogerd contends, Plaintiff
did not have a valid drivers license, that fact would not be relevant to the probable
cause issue if Boogerd believed otherwise at the time. See Williams v. Rodriguez,
509 F.3d 392, 399 (7th Cir. 2007) (probable cause determination turns on the
information known to the arresting officer at the time of the arrest). Indeed, the
very case cited by Officer Boogerd (R. 32-1 at 7)—Dyson v. Village of Midlothian,
2014 WL 584900 (N.D. Ill. Feb. 14, 2014)—makes this point. In Dyson, the plaintiff
alleged that the arresting officer pulled his car over though the officer had no
reason to believe that the plaintiff had committed or was committing a crime, that
the officer asked the plaintiff for his driver’s license, which the plaintiff provided,

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and that the officer then handcuffed the plaintiff and took him to the police station
where he was issued tickets for, among other things, driving without a license. Id.
at *1. The plaintiff brought suit under § 1983 alleging false arrest. The officer
argued on a motion to dismiss that the plaintiff could not allege that the officer
lacked probable cause to arrest him “because records from the Illinois Secretary of
State establish that [the] plaintiff’s driver’s license was suspended on the day he
was arrested for driving without a license.” Id. The court rejected this argument
because “[t]he records do not . . . establish that [the officer] knew [the] plaintiff’s
license was suspended, the touchstone of probable cause.” Id. (emphasis added).
Moreover, the court said, “though [the] plaintiff alleges that he gave [the arresting
officer] his driver’s license, he does not allege that [the arresting officer] took the
license back to his squad car or any other fact from which we can infer that [the
arresting officer] checked whether [the] plaintiff’s license was valid.” Id. (citation
omitted).
Here, like in Dyson, the documents attached to Officer Boogerd’s motion to
dismiss do not establish that Officer Boogerd knew that Plaintiff’s license was
invalid at the time he arrested Plaintiff in the McDonald’s parking lot. Having cited
Dyson in support of his argument for dismissal, Officer Boogerd then attempts to
distinguish that case by arguing that, unlike the allegations there, this case
includes the allegation that Plaintiff gave Officer Boogerd his license and that
Officer Boogerd “‘r[a]n[ ] Plaintiff’s name over the radio to validate [the]
information.’” R. 32-1 at 7 (quoting paragraph 24 of Second Amended Complaint).

11

While this is true, Officer Boogerd ignores the further allegation that Plaintiff
“overhear[d] a lady on the other end of the radio state, ‘he’s clear.’” R. 27-1 at 5
(¶ 25). This allegation raises a disputed issue of fact as to what Officer Boogerd
knew about Plaintiff’s license at the time the arrest took place in the McDonald’s
parking lot. The Court cannot resolve that factual issue on a motion to dismiss.
3.

UNLAWFUL TERRY STOP CLAIM

Officer Boogerd next argues that Plaintiff’s § 1983 claim predicated on an
unconstitutional investigatory stop (Count Two) should be dismissed because
Plaintiff has failed to plausibly allege he was detained without reasonable
suspicion. An “investigatory,” also known as a Terry, 7 stop
complies with the Fourth Amendment if the brief
detention is based on reasonable suspicion that the
detained individual has committed or is about to commit a
crime. The officers initiating the investigatory stop must
be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
suggest criminal activity. [I]narticulate hunches will not
suffice. However, [r]easonable suspicion is a lower
threshold than probable cause and considerably less than
preponderance of the evidence. . . . This is an objective
standard, based upon the facts available to the officers at
the moment of the seizure.
United States v. Ruiz, 785 F.3d 1134, 1141 (7th Cir. 2015) (internal quotations and
citations omitted).
Officer Boogerd argues that Plaintiff’s § 1983 claim based on lack of
reasonable suspicion to conduct an investigatory stop is not plausible because
Plaintiff was found in the parking lot of a McDonald’s restaurant at 3:30 a.m.
7

Terry v. Ohio, 392 U.S. 1 (1968).
12

sleeping behind the wheel of a running motor vehicle. R. 41 at 7. But the two cases
cited by Boogerd demonstrate that these facts establish no more than that it was
reasonable for the police officers, acting in their community caretaking function, to
wake Plaintiff up to check on his status. See People v. Robinson, 859 N.E.2d 232,
243 (Ill. App. 2006) (police officer “was acting as a ‘community caretaker’ by
awakening defendant and then asking defendant to produce identification outside of
defendant’s vehicle”); People v. Carlson, 716 N.E.2d 1249, 1251-52 (Ill. App. 1999)
(defendant’s initial encounter with police officer who approached his parked car,
awoke him from sleep, and requested that he step outside and show his driver’s
license, did not rise to the level of a Terry stop but instead was within the officer’s
community caretaking function).
While Robinson and Carlson establish that the police officers’ initial
interaction with Plaintiff might not have violated the Fourth Amendment, 8 the
validity of that initial interaction does not insulate the officers’ conduct thereafter
from further constitutional scrutiny. The question is whether the interaction,
though lawfully initiated under the community caretaking doctrine, later “exceeded
its lawful purpose and ripened into a de facto” (Ruiz, 785 F.3d at 1143)
unconstitutional Terry stop. See Best v. Berard, 837 F. Supp. 2d 933, 939 (N.D. Ill.
2011) (“‘[A] seizure that is lawful at its inception can violate the Fourth Amendment
if its manner of execution unreasonably infringes interests protected by the
The Court says “might not have” because of the factual allegation that Plaintiff
woke up to find his car blocked in by the police officers. As noted later in a footnote
in this opinion, that allegation, if true, could possibly invalidate what would
otherwise have been a lawful community caretaking encounter.

8

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Constitution.’ A ‘detention following a traffic stop, like any seizure, must satisfy the
Fourth Amendment’s requirement of reasonableness.’” (quoting Illinois v. Caballes,
543 U.S. 405, 407 (2005), and United States v. McBride, 635 F.3d 879, 882 (7th Cir.
2011)).
Thus, Boogerd is not entirely correct when he argues that there is no Fourth
Amendment violation if an encounter lawfully initiated “yields information that a
crime has been committed.” R. 41 at 8. That may be an accurate statement if the
facts are similar to the two cases cited by Boogerd. In Robinson, the police officer
testified that, upon waking the defendant up, he observed that the defendant’s eyes
were dilated, his speech was slurred and mumbled, and a very strong odor of an
alcoholic beverage was on his breath. 859 N.E.2d at 244. In Carlson, the officer
testified that when the defendant rolled down his car window, the officer
immediately detected a strong odor of alcohol and saw that the defendant “had
trouble locating his license; [ ] had bloodshot eyes; [ ] was unsteady and confused;
and [ ] appeared to have wet himself.” 716 N.E.2d at 1251. In contrast, the facts as
alleged by Plaintiff here plausibly suggest that, upon wakening Plaintiff, the police
officers did not observe any facts that would make a reasonable person suspicious
that Plaintiff was under the influence of any substance. Crediting these allegations,
as the Court must, the police officers did not have any basis to go beyond their
community caretaking function by subjecting Plaintiff to a field sobriety test. Such a
test would be justified only if the police officers’ initial interaction with Plaintiff
yielded information that aroused reasonable suspicion of a crime. See Best, 837

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F. Supp. 2d at 940 (citing case law discussing when the facts are sufficient to justify
the administration of a field sobriety test). Indeed, Boogerd’s argument that nothing
more is needed to establish reasonable suspicion of criminal activity other than
discovering a driver at 3:30 a.m., in a McDonald’s parking lot asleep in a car with
the engine running (and sweating), is exactly the sort of argument recently rejected
by the Seventh Circuit in United States v. Paniagua-Garcia, 813 F.3d 1013, 1014-15
(7th Cir. 2016). In that case, the Seventh Circuit chided the government for
“appear[ing] to recognize no limit to the grounds on which police may stop a
driver.” 9 Accordingly, Boogerd has not presented a sufficient basis for dismissal of
Count Two of the Second Amended Complaint. 10
In Paniagua-Garcia, a police officer was passing a car driven by the defendant and
saw the defendant holding a cellphone in his right hand with his head bent toward
the phone. 813 F.3d at 1014. The officer stopped the defendant because, he said, the
defendant “appeared to be texting” in violation of a state statute that prohibits
texting (but not any other uses of cellphones) while operating a motor vehicle. Id.
The police officer questioned the defendant at length, eventually asked and received
his permission to search the car, and discovered in the search five pounds of heroin
concealed in the spare tire in the car’s trunk. In the criminal prosecution, the
district court upheld the search, ruling that the officer had reasonably believed that
the defendant was texting when he initiated the traffic stop. The Seventh Circuit
reversed, noting that the government conceded that the defendant was not texting
and the police officer “has never explained what created the appearance of texting
as distinct from any one of the multiple other—lawful—uses of a cellphone by a
driver.” Id. The court held that the government had failed to establish that the
officer had probable cause or a reasonable suspicion that the defendant was
violating the no-texting law, explaining that “a mere possibility of unlawful use [of a
cell phone] is [not] enough to create a reasonable suspicion of a criminal act,” and
that “[a] suspicion so broad that [it] would permit the police to stop a substantial
portion of the lawfully driving public is not reasonable.” Id. at 1014-15 (internal
quotation marks and citation omitted).
9

Boogerd also makes the same argument he made in moving to dismiss Count One
that the Court must credit “the public record” over Plaintiff’s allegations regarding
what the arresting officers knew or observed on the night of his arrest, and, in
10

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4.

GROUP PLEADING ISSUE

Boogerd next argues that Plaintiff improperly pleads group conduct against
himself and Officer Karney such that he has not been given fair notice of the alleged
wrongful conduct in which he allegedly personally engaged. See R. 32-1 at 9 (citing
Carter v. Dolan, 2009 WL 1809917 (N.D. Ill. June 25, 2009), and Liera v. City of
Chicago, 2014 WL 3921359, at *3 (N.D. Ill. Aug. 5, 2014)). To sustain a § 1983
claim, “‘a plaintiff must establish that a defendant was personally responsible for
the deprivation of a constitutional right.’” Johnson v. Snyder, 444 F.3d 579, 583 (7th
Cir. 2006) (citation omitted). In some cases, this principal may require dismissal of
a complaint that relies on group pleading. E.g., Liera, 2014 WL 3921359, at *3
(dismissing claims “against an additional thirty-five police officers without alleging
which officers were at which location or which officers participated in the alleged
wrongful conduct” because “the Unspecified Defendants are not on notice of which
actions they are alleged to have committed”); Carter, 2009 WL 1809917, at *3-4
(where plaintiff alleged that only three of the defendants actually entered her
apartment, complaint failed to provide adequate notice to the other six defendants
of their allegedly unconstitutional conduct).
particular, that the documents attached to his motion to dismiss prove that Plaintiff
had a suspended driver’s license. According to Boogerd, the suspended license also
gave the police officers reasonable suspicion for a Terry stop. The Court again
rejects this argument because it cannot say from the allegations of the complaint
whether Boogerd knew about the suspended license at the time of the stop or only
discovered it after he subjected Plaintiff to a field sobriety test, arrested him, and
took him to the police station for charging. The Court also notes that while an
invalid license might constitute probable cause to arrest Plaintiff, the Court does
not see how it would provide reasonable suspicion for the Terry stop during which
Plaintiff was administered a field sobriety test.
16

But in cases involving complaints against only a few defendants where the
alleged facts plausibly suggest a basis for holding each of the defendants personally
liable, motions to dismiss based on the group pleading argument have been rejected:
We do not find it fatal to plaintiffs’ complaint that they
have failed to identify at this time the particular
defendant or defendants who hit and kicked Rodriguez,
pushed Gonzalez or carried out the other acts described in
the complaint. Although this Court has in the past
required plaintiffs to match incidents and defendants, we
do not find the requirement appropriate in these
circumstances when we can imagine that plaintiffs had no
opportunity at the time of the incident to get to know the
individual defendants.
In addition, a defendant may not be able to escape
liability for certain conduct simply because he did not
physically act himself. Under certain circumstances,
liability in a civil rights action can stem from the failure
to intervene.
We are required to construe pleadings liberally and will
not dismiss for vagueness or lack of detail. . . . Although it
may be that, as defendants argue, not all of the
defendants were involved in every act, such as
handcuffing Rodriguez, or that some of the defendants
may avoid liability based on qualified immunity, these
details are more appropriately addressed at a later
proceeding.
Gonzalez v. Babasa, 2003 WL 21196245, at *2 (N.D. Ill. May 19, 2003) (citations
omitted) (citing, among other cases, Okoro v. Bohman, 2001 WL 1098041, at *2
(N.D. Ill. Sept. 14, 2001) (allowing case against Chicago police officers and federal
DEA agents to go to trial even though plaintiffs could not identify which defendant
specifically engaged in which act and plaintiffs learned the names of the defendants
only through discovery efforts)).

17

This case only involves two police officer defendants, both of whom appear
from the allegations to have been present and involved in the conduct of which
Plaintiff complains. Under these circumstances, it is at least plausible that both
officers participated in and therefore may be held liable for the events that
transpired in the McDonald’s parking lot such that it would not be appropriate to
dismiss the complaint for failure to identify the specific actions of each officer. See
Rivera v. Lake Cnty., 974 F. Supp. 2d 1179, 1199 (N.D. Ill. 2013) (distinguishing
Carter because the plaintiff in that case “‘was given the opportunity to identify the
individual conduct of each Defendant Officer and failed to do so’” (quoting Carter,
2009 WL 1809917, at *3), and holding that “it would be unreasonable for this Court
to expect more specific allegations until the parties have conducted discovery”);
Evans v. Tavares, 2009 WL 3187282, at *2 (N.D. Ill. Sept. 30, 2009) (same).
5.

INTENTIONAL
INFLICTION
DISTRESS (“IIED”)

OF

EMOTIONAL

Officer Boogerd adopts the argument previously made by the City in its first
motion to dismiss that Plaintiff’s claim for IIED (Count Four) should be dismissed
based on Illinois’ one-year statute of limitations. The Court declined to rule on this
issue when it was presented on the first motion to dismiss because the City was not
named as a defendant in Count Four. While Plaintiff does not respond to Boogerd’s
argument for dismissal of his IIED count, in response to the City’s first motion to
dismiss, Plaintiff argued that the two-year statute of limitations pertaining to
actions “arising out of patient care,” 745 ILCS 10/8-101(b), applied to his IIED
claim. That argument was frivolous because Plaintiff does not allege any facts to
18

support a claim that he was a patient receiving medical care from the arresting
police officers or the City of Naperville. See Kaufmann v. Schroeder, 946 N.E.2d 345,
349 (Ill. 2011) (an injury arises out of patient care “if the injury is causally
connected to the patient’s medical care and treatment”). The Court therefore agrees
with Boogerd, 11 and will dismiss Count Four of the Second Amended Complaint. 12
6.

FALSE IMPRISONMENT CLAIM

Boogerd next raises an argument previously addressed by the Court in its
October 22, 2015 Order, which is that Plaintiff’s § 1983 claim predicated on false
imprisonment (Count Five) is duplicative of his § 1983 claims predicated on false
arrest (Count One) and unlawful Terry stop (Count Two). But Boogerd does not cite
any case law in support of his argument for dismissal of this Count. The Court
therefore declines to rule on the issue at this time. See Davis v. Carter, 452 F.3d
686, 691-92 (7th Cir. 2006) (perfunctory and undeveloped arguments not supported
by pertinent authority are waived). 13

Although Officer Fletcher has not made this argument in his motion to dismiss,
the Court will dismiss Count Four as to both of the individual police officer
defendants named in that count.
11

Even if Plaintiff’s IIED claim were not time barred, Plaintiff still fails to allege
sufficient facts to support that claim. See, e.g., Douglas v. Lofton, 2013 WL 2156053,
at *10 (N.D. Ill. May 17, 2013) (citing cases where IIED claims were dismissed at
pleadings stage for failure to allege sufficiently extreme and outrageous conduct);
S.J. v. Perspectives Charter Sch., 685 F. Supp. 2d 847, 860 (N.D. Ill. 2010)
(dismissing IIED claim where plaintiff failed to allege any specific facts
demonstrating elements of IIED claim, especially the egregious conduct required).
12

The Court also observes that Boogerd’s argument that his initial encounter with
Plaintiff was justified by the community caretaking rule lends further support to
the view that the false imprisonment claim is not duplicative of the false arrest
and/or Terry stop claims. The Illinois Appellate Court has held that “the police may
13

19

7.

INJUNCTIVE RELIEF

Officer Boogerd’s final argument is that Plaintiff lacks standing to seek
prospective inunctive relief. R. 32-1 at 13 (citing Cadiz v. Kruger, 2007 WL 4293976,
at *10 n.9 (N.D. Ill. Nov. 29, 2007) (stating that, “in the typical excessive force case
. . . a plaintiff would lack standing to seek prospective injunctive relief for a past
event that (as to that plaintiff) has no foreseeable likelihood of recurring” (citing
City of Los Angeles v. Lyon, 461 U.S. 95, 111 (1983))). The standing issue regarding
injunctive relief is one that requires more analysis than a single citation to dicta in
a 2007 district court case, which itself relies on a Supreme Court case from almost
twenty years ago. Therefore, the Court declines to decide this issue at this time. See
Davis, supra, 452 F.3d at 691-92.
B.

OFFICER FLETCHER’S MOTION TO DISMISS

The only issue raised by Officer Fletcher in his motion to dismiss is whether
Plaintiff’s § 1983 claims against him are barred by the statute of limitations. “The
question a citizen without triggering fourth amendment protections during a
‘community caretaking’ encounter, so long as the officer does not convey by use of
force or show of authority that compliance with his inquiry is required.” Robinson,
859 N.E.2d at 243. “‘Compelled compliance may be shown by: (1) the presence of
several police officers; (2) the display of a weapon; (3) an officer’s physical contact
with the citizen; and (4) an officer’s use of language or tone of voice commanding
compliance.” Id. (internal quotation marks and citation omitted). Plaintiff has
alleged facts that plausibly suggest “compelled compliance,” in violation of the
community caretaking justification for the police officers’ actions. Accordingly,
Plaintiff’s false imprisonment claim could be read as challenging this aspect of the
police officers’ encounter with Plaintiff. See Carey v. K–Way, Inc., 728 N.E.2d 743,
747 (2000) (false imprisonment claim under Illinois law only requires that the
plaintiff’s liberty be restrained, not necessarily that the plaintiff actually be placed
under arrest; this element is met if a person is compelled to go where he or she does
not wish to go or to remain where he or she does not wish to remain).
20

statute of limitations is an affirmative defense, and a plaintiff is not required to
negate an affirmative defense in his complaint.” Tregenza v. Great Am. Commc'ns
Co., 12 F.3d 717, 718 (7th Cir. 1993). “A complainant can plead himself out of court
by including factual allegations that establish that the plaintiff is not entitled to
relief as a matter of law. Thus, although a plaintiff need not anticipate or overcome
affirmative defenses such as those based on the statute of limitations, if a plaintiff
alleges facts sufficient to establish a statute of limitations defense, the district court
may dismiss the complaint on that ground.” O’Gorman v. City of Chicago, 777 F.3d
885, 889 (7th Cir. 2015) (citations omitted).
“The limitations period for § 1983 claims is based in state law, and the
statute of limitations for § 1983 actions in Illinois is two years.” Id. (citations
omitted). The events giving rise to Plaintiff’s claims took place on May 26, 2013.
Plaintiff filed this lawsuit on May 26, 2015, the same day on which the two-year
statute of limitations was due to expire. But neither the Original nor the
subsequently filed First Amended Complaint named Officer Fletcher as a
defendant. Instead, the Original Complaint named “Naperville” as the only
defendant, R. 1, and the First Amended Complaint named (1) the Naperville Police
Department, 14 (2) Officer Boogerd, and (3) “John Doe Officers # 2 and #3,” R. 10-1.
Plaintiff did not identify Officer Fletcher by name until he filed the Second
Amended Complaint on November 20, 2015. See R. 46. By this time, the statute of
limitations had run. Therefore, Plaintiff’s § 1983 claims against Fletcher are timeAs noted, the Court later substituted the City of Naperville in place of the
Naperville Police Department. See R. 23 at 2.
14

21

barred unless they can be saved through application of either the relation-back rule
of Fed. R. Civ. P. 15(c) or equitable principles of tolling.
Fletcher argues that Plaintiff’s § 1983 claims against him do not relate back
under Rule 15(c) because of the “John Doe” relation-back rule in this circuit. This
Court recently addressed a similar argument in White v. City of Chicago, 2016 WL
4270152 (N.D. Ill. Aug. 15, 2016). Interpreting the “mistake” language of Rule
15(c)(1), 15 this Court rejected the traditional John Doe-application of that language
pursuant to which a plaintiff’s lack of knowledge regarding a defendant’s identity is
not considered to be a “mistake” such that relation-back applies. See, e.g., Jackson v.
Kotter, 541 F.3d 688, 696 (7th Cir. 2008). Instead, this Court held that, after
Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010), the traditional John Doe rule
should not be applied to prevent relation-back if a plaintiff seeks to determine the
identity of the John Doe defendant before the statute of limitations expires but is
unable to do so, provided that the newly identified defendant either knew or should
have known that but for the plaintiff's inability to discover his identity he would
have been named in place of the John Doe defendant. See White, 2016 WL 4270152,
at *20. Moreover, this Court also held that even if relation-back under Rule 15(c)
was not available to the plaintiff, factual questions may still be raised regarding

See Fed. R. Civ. P. 15(c)(1) (“An amendment to a pleading relates back to the date
of the original pleading when . . . the amendment changes the party or the naming
of the party against whom a claim is asserted, if [among other things] the party to
be brought in by amendment . . . knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s
identity.”) (emphasis added).
15

22

whether the doctrine of equitable tolling applies to prevent the running of the
statute of limitations. Id, at *21-22.
This Court’s ruling in White interpreting and applying the Krupski Court’s
analysis of relation back under Rule 15(c), and the doctrine of equitable tolling,
requires the Court to deny Fletcher’s motion to dismiss. The Court cannot conclude
that Plaintiff has pled himself out of court on the statute of limitations. There are
no factual allegations in the Second Amended Complaint demonstrating that
Plaintiff knew Fletcher’s identity prior to naming him as a defendant. Nor can the
Court conclude based on the factual allegations of the complaint that Fletcher did
not know and should not have known that but for Plaintiff's inability to discover his
identity he would have been named as a defendant. In addition, numerous courts in
this district have applied equitable tolling when a plaintiff has been unable to
obtain the identity of the city official who harmed him and his claims otherwise
would be barred. See, e.g., Brown v. Deleon, 2013 WL 3812093, at *7 (N.D. Ill. July
18, 2013). The Court notes that Officer Fletcher has not argued he was prejudiced
by Plaintiff’s failure to identify him any earlier than in the Second Amended
Complaint. Nor can the Court determine based on the pleadings whether Plaintiff
was or was not diligent in seeking Officer Fletcher’s identity. For these reasons, a
ruling on the issue of relation-back under Rule 15(c) and equitable estoppel would
be premature. Accordingly, Officer Fletcher’s motion to dismiss based on the statute
of limitations is denied without prejudice to raising the issue later in the

23

proceedings after discovery has shed further light on the factual matters
determinative of that issue.
C.

THE CITY’S MOTION TO DISMISS AND MOTION TO STRIKE
1.

PLEADING MONELL CLAIM

Under Monell v. Department of Social Services of the City of N.Y., 436 U.S.
658 (1978), a municipality “may be liable under § 1983 for constitutional violations
caused by (1) an express municipal policy; (2) a widespread, though unwritten,
custom or practice; or (3) a decision by a municipal agent with final policymaking
authority.” Kristofek v. Vill. of Orland Hills, 2016 WL 4245494, at *9 (7th Cir. Aug.
11, 2016) (internal quotation marks and citation omitted). Plaintiff implicitly
advances his Monell claim under the second approach—an unofficial practice or
custom that is widespread and well settled. The Court dismissed Plaintiff’s Monell
claim in the First Amended Complaint because Plaintiff had alleged in only a
conclusory fashion that an unofficial practice or custom existed. Following fairly
well established law in this circuit, the Court held that Plaintiff must allege facts
from which an unofficial practice or custom plausibly might be inferred. Plaintiff
has attempted to do so in the Second Amended Complaint. In re-pleading his Monell
claim, Plaintiff has alleged, in addition to his conclusory assertions regarding the
existence of an unofficial practice or custom, 16 the existence of at least two other

Plaintiff’s conclusory assertions of the existence of an unofficial practice of custom
include allegations that: (1) the defendant police officers were acting under color of
law when they fabricated a story to create probable cause to arrest him and seize
his belongings in the McDonald’s parking lot, R. 46 at 10 (¶ 70); (2) the City had a
duty to properly supervise its employees and agents, and the City breached that
16

24

allegedly similar incidents, which Plaintiff argues suggest the existence of an
unofficial practice or custom sanctioned by the Naperville Police Department:
In Case 1:15-cv-05052, filed in this very court the
Naperville Police Department was sued for allegedly
illegally searching and seizure of a home. In this
complaint, Stephen Tracy has alleged similarly that the
officer had no warrant, no consent to search and the
occupant of the home had committed no crime.
In case #2014CF1512, currently in the DuPage County
Circuit Court, the Naperville Police has been accused
again of illegal search and seizure. In this case,
Mr. Anthony Giannone, a criminal defendant, in a motion
to suppress hearing, has accused the Naperville Police of
not only illegal search and seizure but also unlawfully
confiscating items from a vehicle and requiring him to
produce a receipt.
R. 46 at 11-12 (¶¶ 75-76).
The City argues that these additional allegations are insufficient to overcome
the pleading deficiencies identified by the Court in its earlier opinion for a number
of reasons. To begin with, the City argues, the alleged misconduct in the two other
incidents occurred after the incident involving Plaintiff and therefore are

duty by “[i]mproperly training, authorizing, encouraging or directing officers [ ] to
engage in impermissible searches and seizures, without reasonable suspicion or
probable cause and without sufficient legal basis, and/or condoning such actions,
based on hostility by law enforcement toward residents and specifically nonresidents of Naperville,” id. (¶ 71); (3) the defendant police officers “acted consistent
with this training and in an unconstitutional manner when they continued to detain
Plaintiff after they had verified Plaintiff’s identity,” and, “[i]nstead of releasing
Plaintiff, searched [him], accused him of suspicion of DUI, arrested him, seized his
property illegally and brought him to the Naperville Police Station,” id. at 11 (¶ 72);
and (4) the defendant police officers’ conduct was done “pursuant to an unwritten
policy, custom or pattern of practice to engage in indiscriminately stopping,
detaining and citing individuals without probable cause by officers of the Naperville
Police Department,” id. (¶ 74).
25

insufficient “to show the existence of an ‘official policy’ or other governmental
custom that not only causes but is the ‘moving force’ behind the deprivation of
constitutional rights.” R. 29-1 at 5 (quoting Teesdale v. City of Chicago, 690 F.3d
829, 833 (7th Cir. 2012)). The City asks the Court to look outside the complaint to
make a factual finding that the other incidents occurred after the incident involving
Plaintiff, which the Court declines to do. In any event, the City has not cited any
relevant case law holding that to be legally sufficient for pleading purposes it is
necessary that the other incidents have occurred prior to the incident of which the
plaintiff complains. Instead, the City cites two district court cases that refer only
generally to “prior patterns of similar misconduct,” Paroubek v. Friddle, 1987 WL
7818, at *2 (N.D. Ill. Mar. 11, 1987), and “prior incidents similar in nature,”
McBride v. Lindsay, 1989 WL 234032, at *1 (N.D. Ill. Nov. 17, 1989). In neither case
did the district court consider or decide whether allegations of later-occurring
incidents were sufficient to allege an unofficial practice or custom, and, in fact, a
sentence in Paroubek (which the City does not acknowledge) actually refers more
broadly to “previous or similar incidents involving the plaintiff or others with
similar experiences.” 1987 WL 7818, at *2 (emphasis added).
While the practice or custom constituting an unofficial policy must have
existed prior to the incident involving the plaintiff for it to have been a moving force
behind the plaintiff’s incident, that does not mean later occurring incidents can
never be indicative of the existence of a pre-existing practice or custom. For
instance, in Hoskin v. City of Milwaukee, 994 F. Supp. 2d 972 (E.D. Wis. 2014), the

26

court rejected a similar argument that the plaintiff “has failed to plead facts which
establish that the complaints of other unlawful searches occurred before the subject
incident.” Id. at 981 (internal quotation marks and citation omitted). The court held
that it was not “necessary for the plaintiff to have pled specifics like the time, place,
or identity of the other complaints,” and that “[g]eneral allegations that the City
and MPD received complaints is enough to give rise to an inference that its officials
had knowledge that other, similar illegal searches were occurring. Id. The Court
agrees with these conclusions. The later timing of the other incidents in question
does not necessarily negate the relevancy of those incidents to the question of
whether an unofficial practice or custom existed prior to those incidents. The
allegation that such later occurring incidents took place may contribute to the
plausibility of Plaintiff’s allegation that a practice or custom existed. Just how
convincing the evidence might be as a matter of proof is an issue for later in the
case.
The City next contends that Plaintiff’s allegations of two other incidents are
insufficient to state a Monell claim because they are unproven allegations against
the City. The Court is not persuaded by this argument either. “Certainly, plaintiffs
are allowed to bring § 1983 actions on the basis of complaints and allegations of
police misconduct, if all other pleading requirements are met.” Markey v. City of
Chicago, 1991 WL 101639, at *2 (N.D. Ill. June 4, 1991) (citing Williams v. City of
Chicago, 658 F. Supp. 147 (N.D. Ill. 1987), wherein the plaintiff survived the City’s
motion to dismiss a § 1983 claim with seven citizen complaints against police

27

officer); see also Hoskin, 994 F. Supp. 2d at 982 n.3 (rejecting the defendants’
argument “that the plaintiff has not sufficiently pled facts to establish the City’s
knowledge because there were only complaints of unlawful searches, rather than
final adjudications that the searches were unlawful,” stating that “[t]his argument
hardly justifies a discussion” because “[a] lack of formal adjudications would be a
logical symptom of” the alleged policy of ignoring complaints about unlawful
searches); Alphabet v. City of Cleveland, 2006 WL 3241785, at *15 (N.D. Ohio Nov.
7, 2006) (“To simply assume that the sustainment of a complaint by the City’s Office
of Professional Standards is necessary to render a complaint relevant, in light of
Plaintiff’s allegations, lacks reasonableness.”).
In Markey, the district court distinguished Strauss v. City of Chicago, 760
F.2d 765 (7th Cir. 1985), wherein the Seventh Circuit rejected as improperly pled a
Monell claim that depended on “general, unspecific, allegations of frequent ‘illegal
arrests.’” 1991 WL 101639, at *2 (quoting Strauss, 760 F.2d at 769). The Strauss
court rejected the other allegations primarily because they were too general and
unspecific, not because they were unproven. The City cites to Torres v. Dart, 2015
WL 4379890 (N.D. Ill. July 16, 2015), but that case is similar to Strauss in that the
allegations rejected were too vague and unspecific. The Torres court deemed the
allegations of other complaints “sketch[y]” not because the complaints alleged were
unproven but because the plaintiff had not identified “[w]hat cases and what is
alleged,” concluding “[s]urely a reasonable inquiry would have uncovered maybe
‘one or even three’ names of the cases the plaintiff’s complaint alludes.” Id. at *4.

28

Although the information Plaintiff provides here about the two other cases is
limited, he has at least identified the cases and what is alleged. His allegations of
other incidents, therefore, survives the “sketchy” test in Torres.
The City’s third and fourth arguments are that the allegations of the other
two incidents as alleged by Plaintiff are not sufficiently similar to the alleged
constitutional violation here, and that, in any event, two other incidents are not
sufficient to establish an unofficial practice of custom or practice that is widespread
and well settled. These arguments have a bit more force than the City’s first two
arguments. Nevertheless, given the stage in the proceedings at which these
arguments are presented, the Court concludes that the City’s arguments are not
dispositive, and, as discussed below, will err on the side of allowing limited
discovery on Plaintiff’s Monell claim before ruling definitively on whether that claim
may go forward.
The law in this area is a mixture of settled rules regarding the standard for
finding municipal liability and unsettled views regarding what is required to get to
the point where potential liability may even be considered. It is clear that a Monell
claim cannot be based on a random event. Instead, it must be based on “a series of
violations to lay the premise of deliberate indifference.” Thomas v. Cook Cnty.
Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citing Jackson v. Marion Cnty., 66
F.3d 151, 152 (7th Cir. 1995)). “The Seventh Circuit has not adopted any bright-line
rules for how many violations are required to lay the premise of deliberate
indifference, “except that it must be more than one instance, or even three. The

29

general principle, however, is that the plaintiff must demonstrate that there is a
policy at issue rather than a random event.” Karney, 2015 WL 6407759, at *3
(internal quotation marks and citations omitted) (quoting inter alia Thomas, 604
F.3d at 303). But the Seventh Circuit’s indication in Thomas of a possible threshold
requirement of “more than . . . three” violations refers to a threshold for a finding of
liability. See Thomas, 604 F.3d at 303 (“Beyond these threshold requirements, the
jury must make a factual determination as to whether the evidence demonstrates
that the [City] had a widespread practice that [caused] the alleged constitutional
harm.”). The question presently before the Court is whether the same threshold
applies to the pleading of a Monell claim.
While the general rules of pleading are well established, their application to
Monell claims is less so. In McCormick v. City of Chicago, 230 F.3d 319 (7th Cir.
2000), the Seventh Circuit noted that “[p]laintiffs’ counsel, the defense bar, and
district courts continue to struggle with this and other courts’ pronouncements as to
exactly what a plaintiff bringing a municipal liability suit must plead to survive a
motion to dismiss—and with reason.” Id. at 324. On the one hand, certain preMcCormick cases held that a plaintiff cannot state a claim “by simply attaching a
bare conclusion to the facts he narrates.” Id. (quoting Kyle v. Morton High School,
144 F.3d 448, 455 (7th Cir. 1998)). On the other hand, other pre-McCormick cases
held that a plaintiff “need not plead facts; he can plead conclusions.” McCormick,
230 F.3d at 324 (quoting Jackson, 66 F.3d at 153-54). The McCormick court
attempted to provide clarity on this issue by adopting the latter view. McCormick,

30

230 F.3d at 325. That view, the court said, was dictated by Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993), in
which the Supreme Court “made it very clear that federal courts must not apply a
heightened pleading standard in civil rights cases alleging § 1983 municipal
liability.” McCormick, 230 F.3d at 323; see also Jackson, 66 F.3d at 153 (district
court overlooked Leatherman in requiring greater specificity in pleading of Monell
claim). Thus, the McCormick court concluded, the plaintiff could allege the factual
basis of his or her Monell claim through an allegation of a widespread custom or
practice, because “[s]uch an allegation, while conclusory, is sufficient to put the City
on notice of [the plaintiff’s] claim against it.” Id. at 325.
Despite the Seventh Circuit’s attempt in McCormick to clarify the standards
for pleading a Monell claim, uncertainty to this area of the law resurfaced after the
Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Some district courts in this circuit
continue to cite to McCormick as the proper pleading standard for a Monell claim,
notwithstanding Twombly and Iqbal. See, e.g., Howard v. Sheriff of Cook Cnty.,
2016 WL 4366598, at *3 (N.D. Ill. Aug. 16, 2016) (Zagel, J.); Wade v. Rizzuto, 2016
WL 1247472, at *6 (N.D. Ill. Mar. 30, 2016) (Lefkow, J.); Othman v. City of Chicago,
2012 WL 5246898, at *4 (N.D. Ill. Oct. 23, 2012) (Dow, J.); Sanders v. Sheehan,
2010 WL 2990121, at *2 n.1 (N.D. Ill. July 26, 2010) (Gottschall, J.); see also Ohlrich
v. Village of Wonder Lake, 22 F. Supp. 3d 874, 877-78 (N.D. Ill. 2014) (Reinhard, J.)
(not citing McCormick but declining to dismiss complaint with only conclusory

31

allegation of custom or practice). But the Seventh Circuit’s decision in McCauley v.
City of Chicago, 671 F.3d 611 (7th Cir. 2011), seems to suggests otherwise. In
McCauley, the Seventh Circuit held that to properly plead a Monell claim, a
plaintiff must “plead factual content that allows the court to draw the reasonable
inference that the [defendant] maintained a policy, custom, or practice” that
contributed to the alleged violation. Id. at 618 (quoting Iqbal, 556 U.S. at 678). This
Court applied McCauley in its ruling on the City’s first motion to dismiss. Karney,
2015 WL 6407759, at *3-4. Nevertheless, at issue on the City’s first motion to
dismiss was the adequacy of conclusory Monell allegations without any attempt to
support those allegations with specific facts. At issue here is whether the two other
incidents alleged in the Second Amended Complaint are sufficient to get Plaintiff
over the Iqbal and Twombly pleading threshold.
While Iqbal and Twombly direct the Court to disregard a naked allegation of
a policy, practice or custom, nothing in those cases requires the Court to adopt a
numerical rule for Monell claims. Instead, 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. In assessing plausibility, moreover, it
seems appropriate to keep in mind that it is unlikely Plaintiff would have access to
information about other incidents without discovery. See Chambers v. City of S.

32

Beloit, 1990 WL 32659, at *3 (N.D. Ill. Feb. 5, 1990) (“Often plaintiffs lack even the
information necessary to meet the minimal pleading requirements of § 1983 until
they are allowed the opportunity for some discovery.”); Means v. City of Chicago,
535 F. Supp. 455, 460 (N.D. Ill. 1982) (“We are at a loss as to how any plaintiff,
including a civil rights plaintiff, is supposed to allege with specificity prior to
discovery acts to which he or she personally was not exposed, but which provide
evidence necessary to sustain the plaintiff’s claim, i.e., that there was an official
policy or a de facto custom which violated the Constitution.”). In Leatherman, the
Supreme Court held that “federal courts and litigants must rely on summary
judgment and control of discovery to weed out unmeritorious claims sooner rather
than later.” 507 U.S. at 168-69. The Seventh Circuit noted in McCormick that the
Leatherman approach to pleading a Monell claim was consistent with its own circuit
law, which holds that a plaintiff “need not allege all, or any of the facts logically
entailed by the claim,” that a plaintiff “does not have to plead evidence,” and that a
complaint does not “fail to state a claim merely because it does not set forth a
complete and convincing picture of the alleged wrongdoing.” McCormick, 230 F.3d
at 323 (internal quotation marks and citations omitted).
The Court finds that it is a close question whether Plaintiff’s Monell
allegations are sufficient in this case. On the one hand, Plaintiff has attempted to
rise above a “formulaic, bare-bones” Monell claim of the type that is “routinely
dismiss[ed]” in this circuit. Foster v. Land, 2016 WL 3971699, at *3 (N.D. Ind. July
25, 2016) (citing cases). On the other hand, of the two other incidents alleged in the

33

Second Amended Complaint, at least one appears to be only marginally similar in
that it involves an unlawful search of an apartment as opposed to a motor vehicle. If
Plaintiff’s Monell claim is that the City is liable because it does not adequately train
its police officers to conform their behavior to the requirements of the Fourth
Amendment, the Court does not find that claim to be very plausible based on the
current allegations. As the City points out, such a Monell claim would require a
larger number of similar constitutional violations before deliberate indifference
based on failure to train could be inferred. See Connick v. Thompson, 563 U.S. 51,
62 (2011) (“A pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure
to train.”).
But in addition to conclusory failure-to-train allegations, Plaintiff also alleges
an unofficial practice or custom of condoning “impermissible searches and seizures,
without reasonable suspicion or probable cause and without sufficient legal basis,
. . . based on hostility by law enforcement toward residents and non-residents of
Naperville.” R. 46 at 11 (¶ 73). “Determining whether a complaint states a plausible
claim for relief” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. On balance,
the Court concludes that the allegations of the factual circumstances surrounding
Plaintiff’s encounter with the arresting officer when he was found by them asleep at
3:30 a.m. in the parking lot of a local McDonald’s restaurant, together with the
additional allegations of two other lawsuits alleging unreasonable search and

34

seizures against City police officers, are barely enough for Plaintiff’s Monell claim of
condoning illegal search and seizures based on hostility by law enforcement towards
individuals, in circumstances similar to Plaintiff’s, to survive dismissal. See, e.g.,
Wade, 2016 WL 1247472, at *6 n.8; Ohlich, 22 F. Supp. at 878.
This is not to say that the door is completely open on the matter of the City’s
role, if any, in what happened to Plaintiff. Given the weak allegations in support of
Monell liability, the Court will limit Plaintiff’s discovery on his Monell claim to
records kept by the City (or the Naperville Police Department) of lawsuits,
complaints, reports, or investigations (internal or external) made to, filed with, or
concerning Naperville police officers and/or the Naperville Police Department which
allege unlawful searches or seizures made without probable cause for a period going
back three years prior to the incident in question. See Foy v. City of Chicago, 2016
WL 2770880, at *1 (N.D. Ill. May 12, 2016) (ordering limited discovery on other
similar incidents prior to considering adequacy of plaintiff’s latest attempt to plead
a Monell claim). Should this discovery provide additional support for Plaintiff’s
Monell claim, then he may bring that additional support before the Court by way of
a motion to pursue his Monell claim through further discovery.
2.

MOTION TO STRIKE PLAINTIFF’S PRAYER FOR RELIEF

The City moves to strike portions of Plaintiff’s prayer for relief on the ground
that it cannot be held liable for punitive damages or attorney’s fees, and that
injunctive relief would be inappropriate in this case. The Court addressed the issue
of injunctive relief in the context of Officer Boogerd’s motion to dismiss, and adopts

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the same ruling here. Insofar as punitive damages and attorney’s fees are
concerned, the Court declines to strike Plaintiff’s prayer for those forms of relief to
which Plaintiff may be entitled as against one or more of the other defendants in
this case. The City’s arguments that it (as opposed to either of the officer
defendants) cannot be held liable for punitive damages or attorney’s fees are
preserved for later proceedings in the case.
CONCLUSION
For the foregoing reasons, (1) the City’s Motion to Dismiss and Motion to
Strike, R 29, is denied; (2) Officer Fletcher’s motion to dismiss, R. 33, is denied; and
(3) Officer Boogerd’s motion to dismiss, R. 32, is granted as to Count Four of the
Second Amended Complaint and denied in all other respects. Defendants are
directed to file a joint status report on or before October 28, 2016. A status hearing
is set for November 1, 2016 at 9:00 a.m.
ENTERED:
___
Dated: October 18, 2016

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Honorable Thomas M. Durkin
United States District Judge