Tracy v. Hull et al
Filing
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MEMORANDUM Opinion and Order. The Court grants in part and denies in part defendants' motion to dismiss 15 . The motion is granted with respect to: (1) the seizure claim against Hull in Count I, the intentional infliction of emotional distress claim in Count II, and the search and seizure claims against Naperville in Count IV, which are dismissed without prejudice; and (2) any claim for indemnification for punitive damages or attorney's fees in Count III, which is dismissed with preju dice. The motion is denied with respect to the search claim against Hull in Count I and the indemnification claim for compensatory damages against Naperville in Count III. Plaintiff has untilOctober 12, 2015 to amend Counts I, II and IV in accordance with this Order, if he can do so and comply with Rule 11. If plaintiff fails to amend these claims, the Court will dismiss them with prejudice. Signed by the Honorable Jorge L. Alonso on 9/28/2015. Notice mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEPHEN TRACY,
Plaintiff,
v.
P.O. MICHAEL HULL and the
CITY OF NAPERVILLE,
Defendants.
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No. 15 C 5052
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiff sues the City of Naperville and one of its police officers, Michael Hull, pursuant to
42 U.S.C. § 1983 for their alleged violation of his Fourth Amendment rights, intentional infliction
of emotional distress, and indemnification. Defendants have filed a Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) motion to dismiss the first amended complaint. For the reasons set forth below,
the Court grants in part and denies in part the motion.
Facts
On October 24, 2014, defendant Hull and plaintiff’s landlord knocked on the door of
plaintiff's home at 12 N. Main Street in Naperville, Illinois and “demand[ed] entry.” (1st Am.
Compl., Count I ¶¶ 5, 7, 9.) Plaintiff opened the door but refused to let them inside. (Id. ¶ 10; see
id. ¶ 13.) Hull threatened to arrest plaintiff if he did not let them enter, so plaintiff stepped aside.
(Id. ¶ 12.) Hull entered plaintiff’s home, allowed plaintiff’s landlord to enter, and “detained . . .
Plaintiff at the entryway [of his home] without authority or probable cause.” (Id. ¶ 14.)
Plaintiff complained to the Chief of the Naperville Police Department, but his complaint was
ignored. (Id., Count II ¶¶ 18-19.) Thereafter, Hull “on occasion followed the Plaintiff and appeared
at the Plaintiff's children's school to serve him with a ticket and have [sic] taken actions to intersect
himself into the Plaintiff’s child custody/visitation dispute.” (Id. ¶ 20.)
Discussion
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’s favor. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009). “[A] complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations” but must contain “enough facts to state a claim
for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570).
Federal Claims
In Count I, plaintiff alleges that Hull illegally entered plaintiff’s home (“search claim”) and
unlawfully detained plaintiff in the doorway of his home (“seizure claim”). To state a viable search
claim, plaintiff must allege that Hull entered plaintiff's home without plaintiff’s consent, a search
warrant, or exigent circumstances. See Leaf v. Shelnutt, 400 F.3d 1070, 1081 (7th Cir. 2005) (“A
warrantless entry into a private home constitutes a search and presumptively is unreasonable under
the Fourth Amendment.”); Padilla v. City of Chi., 932 F. Supp. 2d 907, 923 (N.D. Ill. 2013) (“It has
long been established that warrantless searches are unreasonable under the Fourth Amendment
unless (1) exigent circumstances and probable cause exist or (2) consent is given.”) (citation
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omitted). Because plaintiff makes all of these allegations (see 1st Am. Compl., Count I ¶¶ 9-13),
and the unlawfulness of a police officer’s entering a home as plaintiff alleges was clearly established
in 2014, defendants’ motion to dismiss the search claim asserted against Hull is denied. See
Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001) (stating that “[q]ualified immunity protects
government officials from civil liability . . . so long as ‘their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known’”)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To state a viable seizure claim against Hull, plaintiff must first allege that he was, in fact,
seized, i.e., that a reasonable person in his position would not have “‘fe[lt] free to . . . terminate the
encounter’” with Hull. See White v. City of Markham, 310 F.3d 989, 993 (7th Cir. 2002) (quoting
Florida v. Bostick, 501 U.S. 429, 446-37 (1991)). Factors that might suggest a seizure has occurred
include: “the threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Id. at 994. Plaintiff does not allege that
any of these factors were present in his encounter with Hull. Thus, he has not stated a plausible
claim, within the meaning of Iqbal and Twombly, for unlawful seizure.
In Count IV, plaintiff asserts a § 1983 claim against Naperville, which requires allegations
that Naperville deprived him of a constitutional right pursuant to one of its policies. Monell v. Dep’t
of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978); see McTigue v. City of Chi., 60 F.3d 381,
382 (7th Cir. 1995) (stating that a policy for purposes of Monell is “(1) an express policy that, when
enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized
by written law or express municipal policy, is so permanent and well settled as to constitute a
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custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused
by a person with final policymaking authority.”) (quotations omitted).
Plaintiff alleges that
Naperville has a practice of failing to investigate citizen complaints about the police, which
emboldened Hull to violate plaintiff’s Fourth Amendment rights. But the only fact plaintiff alleges
to support this assertion is that Naperville ignored his complaint about Hull. (1st Am. Compl.,
Count II ¶ 38; id., Count IV ¶ 36.) Naperville’s alleged disregard of a single complaint does not
support the inference that it has a general practice of ignoring citizen complaints, let alone that any
such practice caused the constitutional violation plaintiff alleges. See Calhoun v. Ramsey, 408 F.3d
375, 380 (7th Cir. 2005) (to allege a widespread practice, plaintiff must plead facts that suggest
“there is a true municipal policy at issue, not a random event”). Accordingly, the Court grants
Naperville’s motion to dismiss Count IV.
State Claims
In Count II, plaintiff alleges that Hull intentionally inflicted emotional distress on him, a
claim that requires allegations that Hull’s conduct was extreme and outrageous, he intended to cause
plaintiff severe emotional distress or knew that it was substantially certain to result, and plaintiff did,
indeed, suffer extreme emotional distress. See Public Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill.
1976). To state a claim, the challenged conduct must be so outrageous and extreme “as to go
beyond all possible bounds of decency” and the resulting distress “so severe that no reasonable
[person] could be expected to endure it.” Id. (internal quotation marks and citations omitted). The
Illinois courts have limited this tort to victims of only the most intolerable conduct. Compare
Pavilon v. Kaferly, 561 N.E.2d 1245, 1251-52 (Ill. App. Ct. 1990) (upholding a claim asserted
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against defendant who knew plaintiff was susceptible to emotional distress, repeatedly propositioned
her and offered her money for sex, fired her when she refused his advances, threatened to kill and
rape her, harassed her family and psychotherapist, threatened to challenge custody of her child, and
harassed her new employer with letters, phone calls and spurious complaints to government
officials), with Miller v. Equitable Life Assur. Soc’y, 537 N.E.2d 887, 888-90 (Ill. App. Ct. 1989)
(plaintiff’s allegations that her supervisors ridiculed her performance, denied her request for a
transfer, refused to cooperate in recovering property that was stolen from her, forbade her to call the
police when another employee physically attacked her, encouraged other insurance agents’
harassment of her, and fired her when she reported other employees’ fraudulent practices did not
state a claim). Plaintiff’s allegations that Hull “on occasion followed the Plaintiff and appeared at
the Plaintiff’s children’s school to serve him with a ticket and have taken actions to intersect himself
into the Plaintiff’s child custody/visitation dispute,” (1st Am. Compl., Count II ¶ 20), do not rise to
the level of outrageousness necessary to support an intentional infliction of emotional distress claim.
In Count III, plaintiff alleges a statutory claim for indemnification against Naperville. See
745 Ill. Comp. Stat. 10/9-102 (“A local public entity is empowered and directed to pay any tort
judgment or settlement for compensatory damages (and may pay any associated attorney’s fees and
costs) for which it or an employee while acting within the scope of his employment is liable in the
manner provided in this Article.”). To the extent plaintiff seeks to be indemnified for anything other
than an award of compensatory damages, e.g., an award of punitive damages or attorney’s fees, the
claim is dismissed. See 745 Ill. Comp. Stat. 10/2-102 (“Notwithstanding any other provision of law,
a local public entity is not liable to pay punitive or exemplary damages in any action brought
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directly or indirectly against it by the injured party or a third party.”); Winston v. O’Brien, 773 F.3d
809, 813 (7th Cir. 2014) (stating that the indemnification statute “does not mandate indemnification
of attorney’s fees.”).
Conclusion
For the reasons set forth above, the Court grants in part and denies in part defendants’ motion
to dismiss [15]. The motion is granted with respect to: (1) the seizure claim against Hull in Count
I, the intentional infliction of emotional distress claim in Count II, and the search and seizure claims
against Naperville in Count IV, which are dismissed without prejudice; and (2) any claim for
indemnification for punitive damages or attorney’s fees in Count III, which is dismissed with
prejudice. The motion is denied with respect to the search claim against Hull in Count I and the
indemnification claim for compensatory damages against Naperville in Count III. Plaintiff has until
October 12, 2015 to amend Counts I, II and IV in accordance with this Order, if he can do so and
comply with Rule 11. If plaintiff fails to amend these claims, the Court will dismiss them with
prejudice.
SO ORDERED.
ENTERED: September 28, 2015
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HON. JORGE ALONSO
United States District Judge
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