Michon v. Ugarte et al

Filing 39

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 2/15/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAVID MICHON,
Plaintiff,
v.
Case No. 16 C 6104
MARTIN UGARTE, OFFICER EMILY
CAMPBELL, OFFICER KEITH
FUELLING, OFFICER OLIVER
#8377, OFFICER SCOTT #308,
OFFICER CLARK, #1091, CITY
OF CHICAGO, and UNKNOWN
OFFICERS,

Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Martin Ugarte’s Motion to
Dismiss [ECF No. 26].

For the reasons stated herein, the Motion

is denied except with respect to the negligence cause of action
(Count IV).

Count IV is dismissed with prejudice pursuant to

FED. R. CIV. P. 12(b)(1).
I. BACKGROUND
Plaintiff

David

Michon

(hereinafter,

“Plaintiff”

or

“Michon”) brings a six-count Complaint, five of which are statelaw

claims,

against

the

City

of

Chicago,

its

officers,

Defendant Martin Ugarte (“Ugarte”), a private citizen.
purposes

of

deciding

Ugarte’s

Motion

to

Dismiss,

and

For the

the

Court

accepts

as

true

the

following

facts

provided

by

Plaintiff.

Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir. 2016).
On December 27, 2014, Ugarte was driving behind Plaintiff
when he “caused a bottle of water to strike” Plaintiff’s car.
The two parties then exited their vehicles, at which time Ugarte
“falsely

announced

that

he

was

proceeded to hit Plaintiff.
“bracing

his

knee

for

a

police

officer.”

Ugarte

Plaintiff “stagger[ed]” and while

support,

Plaintiff

tore

his

ACL

and

meniscus.”
The Defendant Officers – Chicago Police Officers Campbell,
Fueling, Oliver, Scott, and Clark – then arrived on the scene.
The

Officers

handcuffed

and

intervened
arrested

and

stopped

him.

Ugarte.

Plaintiff

They

then

alleges

“upon

information and belief” that while under arrest, Ugarte “spoke
with the Defendant Officers and advised the officers that Ugarte
was

a

police

officer.”

Shortly

thereafter,

the

Defendant

Officers released Ugarte and arrested Plaintiff.
Plaintiff alleges that he repeatedly asked the Defendant
Officers

for

transported
denied

his

to

medical
the

requests.

care

police

while

he

station.

After

was

The

Plaintiff

station, he again asked to see a doctor.

handcuffed

Defendant

arrived

at

and

Officers

the

police

An unknown Defendant

Officer threatened that he would be “lost in the system and not
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released until after the New Year” if he continued to request
medical care.

Plaintiff was charged with battery and criminal

damage to property and then released.

Plaintiff then asked for

a ride to the hospital but was told by an unknown Defendant
Officer to leave the station “or we’ll throw you back in.”

The

charges against Plaintiff were dismissed on July 23, 2015.
In this lawsuit brought a year and a half after the alleged
incidents took place, Plaintiff sues the City of Chicago, its
various officers, and Ugarte.

The single federal-law claim in

the suit is a § 1983 claim made against the Defendant Officers
for denial of medical care (Count V).
brings four state-law claims:

Against Ugarte, Plaintiff

false arrest (Count I), battery

(Count III), malicious prosecution (Count IV), and negligence
(Count IV).

(Plaintiff mislabels both the malicious prosecution

claim and the negligence claim as Count IV.)
Plaintiff
attempting

asserts
to

hold

a

respondeat
it

liable

Officers, its employees.

superior

for

the

Against the City,

claim

acts

of

(Count
the

III),

Defendant

The only claim against Ugarte that

overlaps with a claim against any other Defendants is Count I in
which Plaintiff accuses both the Defendant Officers and Ugarte
of violating Illinois law by falsely arresting him.

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III. ANALYSIS
Ugarte’s Motion to Dismiss is a three-page document that
simulatenously seeks to dismiss claims that do not exist (e.g.,
a Count VII, VIII, and IX in a six-count Complaint) and ignores
those

that

do

(e.g.,

the

negligence

claims).

Despite

the

obvious deficiencies, the Court treats the Motion as a prayer to
dismiss all counts of the Complaint against Ugarte.
A.

Waiver

If brevity is the soul of wit, then the Court could have
done with a bit more tediousness.

Of three pages Ugarte devoted

to his Motion, all but five paragraphs are spent regurgitating
Plaintiff’s Complaint.

These five paragraphs constitute all of

Ugarte’s arguments as to why the Court should grant him relief,
and yet, as Plaintiff points out, they cite precisely “nothing.”
Ugarte’s

Motion

contains

not

a

single

case

or

any

other

authority in support of his prayers for dismissal.
As

the

Seventh

Circuit

“repeatedly

ha[s]

made

clear,”

“perfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived.”
v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).

United States
This waiver

principle is as true in a motion to dismiss as it is on appeal.
For example, in Cannon v. Burge, No. 05 C 2192, 2006 U.S. Dist.
LEXIS 4040, at *28 n.8, *33, *36, *66, *76-77 (N.D. Ill. Feb. 2,
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2006), Judge Amy St. Eve dismissed several defenses that the
defendants raised when they did not “support th[eir] argument
with citations to any case law,” “provide the Court with any
pertinent case law,” or furnish “any developed legal argument in
support of their . . . conclusion.”
While

it

is

true

that

Ugarte’s

Reply

Brief

was

more

substantial than his initial Motion (a low bar to clear), the
brief does not salvage his case.
time on reply are waived.

Arguments raised for the first

See, e.g., Dye v. United States Farm

Servs. Agency (In re Dye), 360 F.3d 744, 751 n.7 (7th Cir.
2004); Wildlife Express Corp. v. Carol Wright Sales, Inc., 18
F.3d 502, 508 (7th Cir. 1994).

Moreover, Ugarte’s Reply Brief

does not at all address the waiver question, despite that being
the only issue that Plaintiff raised in opposition to the Motion
to Dismiss.

The Court thus has no basis to attempt to rescue

the Motion.
In

sum,

Ugarte’s

Motion

to

Dismiss

is

spent

reciting

Plaintiff’s allegations, denying them, and then asserting that
“there is not a plausible basis to plead that the Defendant
Ugarte

was

responsible.”

Insofar

as

Ugarte

raises

any

cognizable arguments, the arguments are forfeited by virtue of
their utter lack of legal support or untimely appearance.

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B.

Merits of Claims

Even if the Court were to stretch and reach the merits of
Ugarte’s arguments, this would make no difference to the ruling.
Ugarte’s arguments rest on a police report that he attached to
his

Reply

Officers

Brief.

spoke

to

arrest Plaintiff.

According
an

to

independent

the

report,

witness

the

before

Defendant

deciding

to

Relying on the report, Ugarte argues that the

witness’s statement to the police means that whatever Ugarte
told the police was not “the sole basis for the arrest,” and
therefore

Ugarte

cannot

be

liable

for

Plaintiff or maliciously prosecuting him.

falsely

arresting

See, Brabec v. Green,

No. 05 C 6646, 2006 U.S. Dist. LEXIS 47773, at *5 (N.D. Ill.
July 13, 2006) (“Illinois law requires that in [false arrest]
claims against a private individual, the plaintiff allege that
the arresting officer relied solely on the information provided
by the private individual when making the arrest.”) (citing to
Dutton v. Roo-Mac, Inc., 100 Ill. App. 3d 116, 119-120 (2d Dist.
1981)).
However, in ruling on a motion to dismiss, the Court cannot
consider matters outside the pleadings without converting the
motion into one for summary judgment.

See, FED. R. CIV. P. 12(d);

see also, e.g., Deckard v. GMC, 307 F.3d 556, 560 (7th Cir.
2002).

While a court may “take judicial notice of matters of
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public record without converting a motion for failure to state a
claim into a motion for summary judgment,” a police report is
not a proper subject for judicial notice.

GE Capital Corp. v.

Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997).
This

is

because

“[a]

indisputable accuracy.”
1,

6

(1996)

Rule 201

of

(internal
the

police

report

is

not

a

source

of

Vincent v. Williams, 279 Ill. App. 3d
quotation

Federal

marks

Rules

of

omitted).

Evidence,

a

Yet

under

court

may

judicially notice a fact only where that fact “can be accurately
and

readily

determined

reasonably be questioned.”
follows

“the

vast

factual

allegations

from

whose

accuracy

FED. R. EVID. 201(b).

majority
from

sources

the

of

courts”

police

in

cannot

The Court thus

disregarding

report.

See,

Eubank

the
v.

Wesseler, No. 10-210-DLB-JGW, 2011 U.S. Dist. LEXIS 93135, at
*10 n.2 (E.D. Ky. Aug. 19, 2011) (“The vast majority of cases
hold that police reports do not constitute matters of public
record

appropriate

for

judicial

notice.”);

Blackwell

v.

Kalinowski, No. 08 C 7257, 2009 U.S. Dist. LEXIS 51590, at *5
(N.D. Ill. June 18, 2009) (“[T]he factual allegations contained
in the police reports do not become matters of public record
suitable for consideration on a motion to dismiss.”).
Likewise, the principle that “in deciding a Rule 12(b)(6)
motion, a court may consider documents attached to a motion to
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dismiss if they are referred to in the plaintiff’s complaint and
are central to his claim,” does not allow for consideration of
the police report in this case.

Brownmark Films, LLC v. Comedy

Partners, 682 F.3d 687, 690 (7th Cir. 2012) (internal quotation
marks and ellipses omitted).

Plaintiff did not in his Complaint

refer to the police report.

He did not attach the report, quote

from it, or mention it in any direct manner.
Associated

Ins.

Cos.,

29

F.3d

1244,

1248

Cf. Wright v.
(7th

Cir.

1994)

(finding an agreement to be part of the pleadings where the
plaintiff “repeatedly quotes from and refers to the Agreement in
his complaint”).
out

a

false

While Plaintiff relies on his arrest to make

arrest

claim,

central to his claim.
the

arrest

report

the

arrest

report

itself

is

not

Plaintiff may cry false arrest even if

does

not

exist.

Cf.

id.

(finding

an

employment agreement to be central to the plaintiff’s claims
because the agreement “grants him a property interest in his
employment,” without which he cannot sue).
Without the police report, Ugarte’s arguments (raised for
the first time in a reply brief) fall apart.

Moreover, even

with the arrest report considered, Ugarte cannot prevail.

The

arrest report makes a single mention of the witness, stating
“Martin

Ugarte

(victim

and

complainant)

and

Samantha

Alverez

(witness) related to A/OS that listed offender was upset that
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the victim had cut him off in traffic.”

The rest of the report

either did not indicate who provided the information or made
clear that it was Ugarte who supplied the information found in
the

report.

When

Plaintiff,

it

is

construed
possible

in

light

the

that

the

most

independent

favorable
witness

to

only

related to the Officers what happened on the road, before the
men

stopped

supplied

driving

the

and

information

exited
that

battery and property damage.
reasonable

inferences

in

their
led

vehicles,

to

while

Plaintiff’s

Ugarte

arrest

for

Because the Court must draw all

Plaintiff’s

favor,

it

cannot

accept

Ugarte’s argument that Plaintiff fails to state a claim against
him given the report.

See, e.g., Berger v. NCAA, 843 F.3d 285,

289-90 (7th Cir. 2016) (“In evaluating the sufficiency of the
complaint, we construe it in the light most favorable to the
nonmoving party, accept well-pleaded facts as true, and draw all
inferences in the nonmoving party’s favor.”) (internal quotation
and alteration marks omitted).
C.

Subject Matter Jurisdiction

Nonetheless, the Court cannot allow this case to proceed
without

an

inquiry

into

its

power

to

hear

the

case.

As

a

federal district court, the Court has an obligation to review
its own subject matter jurisdiction sua sponte and must dismiss
the case if it finds that it lacks jurisdiction.
- 9 -

See, FED. R.

CIV. P. 12(h)(3); Hammes v. AAMCO Transmissions, 33 F.3d 774, 778
(7th Cir. 1994); Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177,
1181 (7th Cir. 1989); see also, Llano Fin. Grp., LLC v. Prince,
No. 2:15-CV-297, 2016 U.S. Dist. LEXIS 22965, at *4-5 (N.D. Ind.
Feb. 25, 2016); FDIC v. Hoffman, No. 4:13-cv-04075-SLD-JAG, 2013
U.S. Dist. LEXIS 145199, at *2 (C.D. Ill. Oct. 8, 2013); Univ.
of Chi. Hosps. & Clinics v. Olson, No. 87 C 10023, 1988 U.S.
Dist.

LEXIS

892,

at

*1

(N.D.

Ill.

Jan.

28,

1988).

This

obligation is particularly pressing here, as all of the claims
that Plaintiff asserts against Ugarte are based on state law.
The only basis for the Court to exert jurisdiction over
Plaintiff’s state-law claims is 28 U.S.C. § 1367(a).

28 U.S.C.

§ 1367(a) allows the Court to hear Plaintiff’s state-law claims
if

these

claims

are

“so

closely

related”

to

the

federal-law

claim against the Defendant Officers “as to be in effect part of
the same case.”

28 U.S.C. § 1367(a); Williams Elecs. Games,

Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir. 2007).
Under this analysis, Plaintiff’s negligence claim must be
dismissed

because

jurisdiction

over

the
it.

Court

does

Plaintiff

not

have

complains

subject
that

matter

Ugarte

was

negligent when he “failed to exercise due care in the operation
of his motor vehicle.”
Ugarte

“failed

to

In particular, Plaintiff alleges that

maintain

a

proper

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lookout

for

traffic,”

“swerved into Plaintiff’s lane,” and “struck Plaintiff’s motor
vehicle with a water bottle.”

But all this conduct took place

before the Defendant Officers even arrived on the scene.
time

the

Officers

arrived,

Plaintiff

and

Ugarte

had

By the
stopped

their vehicles, exited them, and were engaged in fisticuffs.
The Defendant Officers thus were not present when Ugarte drove
negligently.

They did not observe the alleged poor driving,

contribute to it, or somehow bear responsibility for it.
The

federal

claim

against

the

Defendant

Officers

(as

opposed to the Defendant Officers themselves) is even further
removed from the negligent driving.

Recall that the federal

claim is premised on the allegation that the Officers failed to
provide medical care.

This alleged failure occurred after the

men stopped driving and the Officers arrived on the scene.

Upon

arrival, the Officers separated the men, arrested Ugarte, talked
to him, let him go, and then arrested Plaintiff.

Only at this

point, when Plaintiff was under arrest and the Officers ignored
his requests for medical care, does his federal cause of action
against them arise.
time,

space,

The federal-law claim thus is separated in

actors,

negligence claim.

and

motivation

from

the

state-law

Far from being “in effect part of the same

case,” the claims bear little relation to each other.

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Luckily for Plaintiff, his other claims look better, at
least from a jurisdictional point of view.

In all of the other

claims, the Defendant Officers were present and observed the
offending conduct.
the

Defendant

Defendant

Plaintiff alleged that upon their arrival,

Officers

Ugarte’s

“proceeded

assault

upon

to

intervene

Plaintiff.”

and

The

stop

Officers

therefore saw at least some of the battery that Ugarte committed
against Plaintiff.

Since the Defendant Officers allegedly saw

Ugarte batter Plaintiff (Count III), they had less reason to
arrest

Plaintiff

or

allow

Ugarte

to

swear

out

a

complaint

against him – thus strengthening Plaintiff’s claim for false
arrest (Count I), respondeat superior (Count II), and malicious
prosecution

(Count

IV)

–

and

more

reason

to

be

aware

of

Plaintiff’s physical injuries and the need to provide medical
attention,

thus

strengthening

Plaintiff’s

claim

for

unconstitutional deprivation of medical care (Count V).
Based these facts, the Court finds that it has supplemental
jurisdiction over the remaining claims.

The claims are tied

together by a “loose factual connection” and thus are part of
the same case.

See, McCoy v. Iberdrola Renewables, Inc., 760

F.3d 674, 682-83 (7th Cir. 2014) (explaining that “[c]laims form
part of the same case or controversy when they ‘derive from a
common nucleus of operative fact’” and that “[a] loose factual
- 12 -

connection

between

the

claims

is

(internal quotation marks omitted).

generally

sufficient”)

However, if warranted by

developments in the case or future briefing by the parties, the
Court may revisit the issue.

See, FED. R. CIV. P. 12(h)(3) (“If

the court determines at any time that it lacks subject-matter
jurisdiction,

the

court

must

dismiss

the

action.”)

(emphasis

added); 28 U.S.C.S. § 1367(c) (listing the circumstances under
which a district court may decline to exercise its supplemental
jurisdiction);
should

Wright,

consider

and

29

F.3d

weigh

at

the

1251

factors

(“[A]
of

district

judicial

court

economy,

convenience, fairness and comity in deciding whether to exercise
jurisdiction over pendent state-law claims. . . . [T]he general
rule

is

that,

when

all

federal

claims

are

dismissed

before

trial, the district court should relinquish jurisdiction over
pendent

state-law

claims

rather

than

resolving

them

on

the

merits.”).
One more issue must be addressed.

So far, the Court has

treated Plaintiff’s malicious prosecution claim against Ugarte
as a state-law claim.
battery

claim,

However, unlike with his false arrest and

Plaintiff

does

not

prosecution claim as a state-law claim.

label

the

malicious

As such, it is possible

that Plaintiff means to assert a federal malicious prosecution
claim,

permissible

under

42

U.S.C.

- 13 -

§

1983.

See,

e.g.,

Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir. 1997)
(listing the elements of a malicious prosecution claim under
§ 1983 and explaining that “[a] state law cause of action for
malicious
action”).

prosecution

is

not

interchangeable

with

a

federal

If this is so, then the claim must fail because

Ugarte is a private citizen.
A

private

citizen

“can

be

brought

within

the

grasp

of

section 1983” if he “conspired with a public employee to deprive
the

plaintiff

of

his

constitutional

rights.”

Ridgway, 279 F.3d 503, 507 (7th Cir. 2002).

Proffitt

v.

Here, Plaintiff has

not brought the malicious prosecution claim against anybody but
Ugarte.
Defendant

It is difficult to see how Ugarte conspired with the
Officers

(or

some

other

public

employee)

to

maliciously prosecute Plaintiff when no actual public employee
is alleged to have maliciously prosecuted Plaintiff.
The

fact

that

Ugarte

allegedly

but

falsely

represented

himself as a police officer does not change the analysis.
court

(somewhat

colorfully)

has

stated

the

matter,

As a

“[j]ust

because [the defendants] may have proclaimed themselves as ‘the
law in Oak Lawn’ does not of course make it so, any more than
similar statements by self-proclaimed vigilantes or those intent
on terrorizing towns in the standard Western movie plot had no
legal

effect.”

Vanderlinde

v.

Brochman,

- 14 -

792

F.Supp.

52,

53

(N.D. Ill. 1992). See also, Wilson v. Price, 624 F.3d 389, 392
(7th Cir. 2010) (“The mere assertion that one is a state officer
does not necessarily mean that one acts under color of state
law.”);
1990)

Gibson

(holding

v.

Chicago,

that

“the

910

F.2d

actions

of

1510,
an

1518-19

officer

(7th

who

Cir.

has

no

authority whatsoever to act” are outside the ambit of § 1983).
At bottom, Ugarte was a private citizen acting without any state
authorization and so cannot be sued under § 1983.
IV.

CONCLUSION

For the reasons stated herein, Ugarte’s Motion to Dismiss
[ECF No. 26] is granted in part and denied in part.
negligence

claim

is

dismissed

with

prejudice

While the

pursuant

to

Rule 12(b)(1), the other causes of action survive the Motion.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: February 15, 2017

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