Brown v. Norise et al

Filing 59

ORDER Signed by the Honorable Amy J. St. Eve on 2/24/2017: The Court grants Defendants' Federal Rule of Civil Procedure 12(b)(6) motions to dismiss with prejudice. 41 43 . This case is hereby dismissed with prejudice. All pending dates and deadlines are stricken. [For further details, see Order.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RANDALL BROWN,
Plaintiff,
v.
COOK COUNTY CORRECTIONAL
OFFICER BRANDON NORISE, et al.,
Defendants.

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Case No. 16 C 4969
Judge Amy J. St. Eve

ORDER
The Court grants Defendants’ Federal Rule of Civil Procedure 12(b)(6) motions to
dismiss with prejudice. [41][43]. This case is hereby dismissed with prejudice. All pending
dates and deadlines are stricken.
STATEMENT
On December 14, 2016, Plaintiff Randall Brown filed the present six-count Second
Amended Complaint against Defendant Cook County Correctional Officer Brandon Norise;
Defendant Richard Ellitch, an Investigator at the Cook County Sheriff’s Office; Defendant Cook
County Sheriff Thomas Dart; and Defendant Cook County alleging a Fourth Amendment
excessive force claim, a common law battery claim, and a common law fraud claim, as well as
the attendant indemnification and respondeat superior claims. See 28 U.S.C. §§ 1331, 1367(a).
Before the Court are Defendants’ motions to dismiss brought pursuant to Rule 12(b)(6). For the
following reasons, the Court grants Defendants’ motions. Because the Court gave Plaintiff the
opportunity to amend his allegations, the Court grants Defendants’ motions to dismiss with
prejudice. See Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 519
(7th Cir. 2015) (“a plaintiff whose original complaint has been dismissed under Rule 12(b)(6)
should be given at least one opportunity to try to amend her complaint before the entire action is
dismissed.”).
LEGAL STANDARDS
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under
Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule
8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)

(citation omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations
must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570).
In determining the sufficiency of a complaint under the plausibility standard, courts must
“accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs’ favor.”
Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). Also, it is well-settled that “a
plaintiff ordinarily need not anticipate and attempt to plead around affirmative defenses.” Hyson
USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016). Nevertheless, a “statute of
limitations defense is properly considered in determining a Rule 12(b)(6) motion when the
factual allegations in the complaint establish such a defense.” Bonnstetter v. City of Chicago,
811 F.3d 969, 974 (7th Cir. 2016).
BACKGROUND
In his Second Amended Complaint, Plaintiff alleges that on July 4, 2013, he was detained
at the Cook County Jail. (R. 37, Second Am. Compl. ¶ 8.) While at the Cook County Jail,
Defendant Norise, a Cook County Correctional Officer, attempted to remove Plaintiff from a cell
that housed multiple detainees. (Id. ¶ 10.) Plaintiff specifically alleges that at that time
Defendant Norise took him to the ground, struck him numerous times with his fist, and kicked
him. (Id. ¶¶ 11, 14, 17.)
Plaintiff further alleges that Defendant Ellitch spoke with him on July 10, 2013. (Id. ¶
23.) Plaintiff specifically contends that while performing an internal investigation into
Defendant Norise’s use of excessive force against him, Defendant Ellitch told Plaintiff that if he
pressed charges against Defendant Norise, Defendant Ellitch would bring additional criminal
charges against Plaintiff that would “put him in jail for another seven years.” (Id. ¶¶ 23, 24.)
Plaintiff asserts that during the July 10, 2013 conversation, Defendant Ellitch held himself out as
someone who was working on behalf of Plaintiff, that Defendant Ellitch secured the confidences
of Plaintiff, and that Defendant Ellitch was in a position of trust in relation to Plaintiff. (Id. ¶¶
27, 28.) In addition, Plaintiff alleges that Defendant Ellitch held himself out as a person who
could prosecute Plaintiff or have Plaintiff prosecuted. (Id. ¶ 32.) Because of Defendant Ellitch’s
position of trust and his role as an investigator for the prosecuting arm of the Cook County
State’s Attorney’s Office, Plaintiff feared that he would be criminally prosecuted. (Id. ¶ 33.)
Plaintiff maintains that this fear induced him not to file this lawsuit earlier. (Id. ¶¶ 20, 34.)
Furthermore, Plaintiff alleges that on July 10, 2013, Defendant Ellitch falsified a report
stating that: (1) Plaintiff did not want to file a complaint against Defendant Norise; (2) that
Plaintiff turned and walked away from Defendant Norise when Defendant Norise walked into the
jail cell; and (3) that Defendant Norise ordered Plaintiff to exit the jail cell. (Id. ¶ 35.) Also,
Plaintiff asserts that Defendants Ellitch and Norise worked jointly and in conspiracy with each
other to have Defendant Ellitch induce Plaintiff not to file a lawsuit against Defendant Norise by
threatening him with additional criminal charges resulting in seven additional years in jail. (Id.
¶¶ 23, 32, 33, 36-38.)
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ANALYSIS
In their motions to dismiss, Defendants argue that Plaintiff has failed to bring his federal
and state law claims within the appropriate limitations periods because his claims accrued in July
2013 and Plaintiff did not bring this lawsuit until May 2016. See Moore v. Burge, 771 F.3d 444,
446 (7th Cir. 2014) (“the statute of limitations for § 1983 actions in Illinois is only two years.”);
Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008) (Illinois claims governed by “the one-year
statute of limitations in the Illinois Local Governmental and Governmental Employees Tort
Immunity Act.”). Plaintiff agrees that his claims are untimely, but argues that the limitations
periods were tolled based on Defendants Norise’s and Ellitch’s alleged threats and misconduct
under the federal doctrine of equitable estoppel. See Smith v. City of Chicago Heights, 951 F.2d
834, 841 (7th Cir. 1992) (“In contrast to equitable tolling, federal courts do not borrow state
equitable estoppel doctrine when they borrow a state statute of limitations; federal courts apply
the federal doctrine of equitable estoppel.”); see, e.g., Hobbs v. Cappelluti, 899 F. Supp. 2d 738,
759 (N.D. Ill. 2012).
“Equitable estoppel, which is a doctrine of federal law, ‘comes into play if the defendant
takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the
statute of limitations.’” Rosado v. Gonzalez, 832 F.3d 714, 716 (7th Cir. 2016) (citation
omitted). Put differently, equitable estoppel “prevents a party from asserting the expiration of
the statute of limitations as a defense when that party’s improper conduct has induced the other
into failing to file within the statutory period.” Ashafa v. City of Chicago, 146 F.3d 459, 462
(7th Cir. 1999). Further, “[e]quitable estoppel presupposes ‘efforts by the defendant, above and
beyond the wrongdoing upon which the plaintiff’s claim is founded, to prevent, by fraud or
deception, the plaintiff from suing in time.” Rosado, 832 F.3d at 716 (citation omitted).
“Equitable estoppel requires misconduct by a defendant and plaintiff’s actual and reasonable
reliance on that misconduct.” O’Gorman v. City of Chicago, 848 F. Supp. 2d 853, 859 (N.D. Ill.
2012).
Viewing the allegations and reasonable inferences in Plaintiff’s favor, Plaintiff has
asserted more than his underlying excessive force claim against Defendant Norise, namely, that
Defendant Ellitch threatened to bring criminal charges if Plaintiff pursued an excessive force
claim against Defendant Norise. Under Seventh Circuit law, however, Defendant Ellitch’s
alleged threats to bring additional criminal charges against Plaintiff are insufficient to justify
equitable estoppel because “a threat to retaliate is not a basis for equitable estoppel.” Beckel v.
Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002); Jordan v. Chicago, No. 14 C 3074,
2016 WL 5171767, at *5 (N.D. Ill. Sept. 21, 2016); Castro v. City of Chicago, No. 07 C 931,
2013 WL 5435275, at *3 (N.D. Ill. Sept. 30, 2013); Webb v. Gardner, Carton & Douglas LLP
Long Term Disability Plan, 899 F. Supp. 2d 788, 794 (N.D. Ill. 2012); cf. Ramirez v. City of
Chicago, No. 08 C 5119, 2009 WL 1904416, at *5 (N.D. Ill. July 1, 2009) (fear of police reprisal
insufficient to equitably toll claims). As these cases teach, allowing the use of retaliation as a
basis of extending the statute of limitations would all but eliminate limitations periods and
undermine their purpose. See Beckel, 301 F.3d at 624; Castro, 2013 WL 5435275, at *3.
Moreover, Plaintiff’s allegations that Defendants falsified an investigation report do not
save the day because these allegations are premised on Plaintiff’s assertion that Defendants
3

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Dated: February 24, 2017
F

__________
__________
___________
__
AMY J. ST EVE
T.
United Stat District Court Judg
tes
ge

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