Gonzalez v. City of Chicago et al
Filing
110
MEMORANDUM Opinion and Order: For the reasons stated in the Memorandum Opinion and Order, Defendants motions to dismiss 20 , 25 , 32 , 39 , are granted. Specifically, the federal due process (Count I) and conspiracy (X) claims are dismissed with prejudice as barred by the doctrine of res judicata. The state law claims for defamation and libel (Count IX) and assault and battery claims based on the May 13, 2015 incident involving Defendant DeVito (in Count V) are also dismissed with prejudice as time-barred. Meanwhile, Gonzalezs state law claims for malicious prosecution (Count II), abuse of process (Count III), fraud (Count IV), intentional infliction of emotional distress (Count VII), and negligent infliction of emotional distress (Coun t VIII) are dismissed without prejudice for failure to state a claim. The remaining assault and battery claim based on the November 4, 2015 incident involving Defendant DeVito (in Count V) and the assault claim (Count VI) will not be dismissed at thi s time. Instead, Gonzalezs motion to file an amended complaint 73 is granted and the Court will continue to assert supplemental jurisdiction over the surviving state law claims pending the filing of Gonzalezs second amended complaint. If Gonzalez f ails to file a second amended complaint that includes a basis for the Court to exercise subject-matter jurisdiction, the case will be dismissed in its entirety and Gonzalez will have one year to refile in state court. See 735 ILCS 5/13-217; Davis v. Cook Cnty., 534 F.3d 650, 654 (7th Cir. 2008). Gonzalez shall file his second amended complaint by April 23, 2018. Signed by the Honorable Andrea R. Wood on 3/30/2018. Mailed notice. (lw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICARDO GONZALEZ,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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)
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)
)
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)
)
No. 16-cv-08012
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Gonzalez is a police officer employed by Defendant City of Chicago.
Gonzalez alleges that he was unlawfully suspended from his job for 30-days following an
inadequate complaint and review process. Gonzalez’s suspension was eventually reversed by the
Circuit Court of Cook County. However, Gonzalez alleges that after the Circuit Court’s decision,
he was subjected to a campaign of retaliation carried out by various City of Chicago officials,
police department superintendents and officers, and the Fraternal Order of Police, Chicago
Lodge No. 7 (“FOP”). As a result, Gonzalez has filed this lawsuit, which includes 11 counts and
16 Defendants. Presently before the Court are four separate motions to dismiss Gonzalez’s
amended complaint filed by the various Defendants pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. Nos. 20, 25, 32, 39.) Following the briefing of the four motions, Gonzalez filed a
motion for leave to amend his complaint and add Defendants. (Dkt. No. 73.) For the reasons
explained below, the Court grants the motions to dismiss but also grants Gonzalez’s motion to
amend his complaint.
BACKGROUND1
The origins of this case go back almost a decade. At that time, and at all times pertinent
to the amended complaint, Gonzalez was a police officer employed by the City of Chicago. (Am.
Compl. ¶ 7, Dkt. No. 6.) Gonzalez’s problems began on December 21, 2008, when another
Chicago police officer accidentally discharged mace at a restaurant. (Id. ¶ 27.) According to
Gonzalez, he was in the bathroom of the restaurant at the time the mace was discharged. (Id.)
Nonetheless, the City of Chicago accused Gonzalez of discharging the mace and initiated a
complaint log against him related to the incident. (Id. ¶ 28.)2 Thereafter, the Independent Police
Review Authority (“IPRA”) assumed responsibility for investigating the matter. (Id. ¶ 29.)
Two years later, on March 11, 2011, IPRA recommended that Gonzalez receive a 30-day
suspension based on its investigation of the complaint. (Id. ¶ 29.) Following the close of IPRA’s
investigation, the City of Chicago Police Board (“Police Board”) took over the matter. On
November 21, 2013, the Police Board conducted a closed hearing regarding the mace incident.
(Id. ¶ 30.) Eventually, the Police Board issued a “Findings and Decisions” document, signed by
Defendant Max Caproni, Executive Director of the Police Board, sustaining the 30-day
suspension and all alleged rule violations by Gonzalez. (Id. ¶ 30.) The Police Board published its
findings on the City of Chicago website. (Id. ¶ 31.) Then, on December 18, 2013, an online news
website, DNAInfo.com, picked up the story and published an article presenting the Board’s
findings against Gonzalez. (Id. ¶ 32.) Gonzalez, however, did not receive a copy of the Police
Board’s findings until December 31, 2013. (Id. ¶ 34.)
1
For the purposes of Defendants’ motions to dismiss, the Court accepts as true all well-pleaded facts and
views them in the light most favorable to Gonzalez. See, e.g., Bell v. City of Chicago, 835 F.3d 736, 738
(7th Cir. 2016).
2
It is unclear from Gonzalez’s amended complaint why the City of Chicago falsely accused him.
2
Over five years after the mace incident, on January 16, 2014, Gonzalez was personally
served with a 30-day suspension notification ordered by Defendant Superintendent Garry
McCarthy. (Id. ¶ 35.) Gonzalez sought and received assistance from FOP in challenging the
suspension. (Id. ¶ 39.) FOP drafted and filed a petition for administrative review of Gonzalez’s
30-day suspension. (Id.) But in reviewing FOP’s petition, Gonzalez noticed an erroneous
statement regarding the date on which Superintendent McCarthy ordered the suspension. (Id.
¶ 39.) Gonzalez alerted FOP to the erroneous statement but it refused to amend the petition. (Id.
¶ 41.) Because of this disagreement with FOP, Gonzalez decided to retain private counsel, and an
amended petition was filed on February 14, 2014. (Id. ¶ 42.) Gonzalez named the Police Board
and Superintendent McCarthy as defendants in the amended petition. (City Defs.’s Mot. to
Dismiss, Ex. 2, Dkt. No. 26-1.) In response, Defendants attempted to dismiss the administrative
proceedings based on what Gonzalez characterizes as erroneous and misleading arguments. (Am.
Compl. ¶ 51, Dkt. No. 6.) Gonzalez also claims that, throughout the course of the state court
litigation, Defendants committed various egregious and malicious acts, including submitting
perjured testimony and backdated documents, intentionally filing an incomplete record, and
misrepresenting the facts. (Id. ¶ 53.)
The Circuit Court issued its ruling on November 10, 2015. (Id. ¶ 54.) The Circuit Court
held that because Defendants failed to fully comply with the required procedures for instituting a
30-day suspension, the suspension must be reversed as a violation of Gonzalez’s due process
rights. (Id. ¶ 56.) Neither side appealed the Circuit Court’s findings. (Id. ¶ 57.) After the ruling,
Defendants sent Gonzalez a settlement agreement letter. (Id. ¶ 58.) The settlement agreement
proposed to resolve a grievance filed by Gonzalez and reduce Gonzalez’s 30-day suspension to
15 days, while also removing certain violations from his record. (Id. ¶ 61.) The settlement
3
agreement was entered into between FOP and the City of Chicago Police Department. (Id. ¶ 62.)
According to Gonzalez, however, the grievance cited in the settlement letter had been withdrawn
on October 23, 2015 and only resurrected after the Circuit Court’s decision reversing Gonzalez’s
suspension. (Id. ¶ 60.) As a result, Gonzalez considers the settlement fraudulent.
Beyond the alleged constitutional and other legal violations directly related to the 30-day
suspension, Gonzalez also claims to have been subjected to a campaign of retaliation due to his
decision to challenge the Police Board’s punishment. The first alleged instance of retaliation
actually occurred before the Circuit Court issued its decision when, on May 13, 2015, Gonzalez
met with Sergeant Don DeVito of the Internal Affairs Division at police headquarters. (Id. ¶ 63.)
The amended complaint does not detail what exactly was discussed during the meeting, but at
some point DeVito became angry and told Gonzalez, “I know where you’re going with this” and
threatened “You’re Done.” (Id.) DeVito then had Gonzalez escorted out of the headquarters. (Id.)
The following day, Gonzalez emailed DeVito about the incident. (Id. ¶ 63.) DeVito never
responded to this email. (Id.)
Six months later, on the morning of November 15, 2015, just five days after the Circuit
Court reversed Gonzalez’s suspension, Gonzalez again went to police headquarters, this time to
meet with a case worker in the medical section. (Id. ¶ 78.) Gonzalez’s aunt accompanied him on
the visit. (Id. ¶ 78.) While he was waiting for his appointment, Gonzalez overheard the medical
section worker talking over the phone and telling an unknown person, “He is here. You can see
him after he is done.” (Id. ¶ 79.) Shortly afterwards, Sergeant DeVito and another tall male
arrived. DeVito and the other unknown male positioned themselves such that they were blocking
Gonzalez’s exit. (Id. ¶ 80.) In response to DeVito’s presence, Gonzalez became fearful for
himself and his aunt, and began to experience shortness of breath. (Id. ¶ 82.) Gonzalez attempted
4
to exit the waiting room, but DeVito and the other male continued to block the doorway. (Id.
¶ 83.) DeVito told Gonzalez, “no, no, no” and grabbed him by the lower arm. (Id.) Although
Gonzalez was eventually able to exit the room, DeVito followed him into the main lobby where
Gonzalez heard someone say “I will just lock you up.” (Id. ¶ 84.)
Sergeant DeVito was not the only officer who is alleged to have targeted Gonzalez for
pushing back against the Police Board. Gonzalez also claims to have been attacked by Sergeant
Andres Zayas on December 14, 2015 while attending a medical appointment at Rush Hospital.
(Id. ¶ 91.) On that day, Gonzalez noticed an unknown man staring at him while he checked in
with hospital desk personnel. The man not only stared at Gonzalez, but he also blocked the
hospital exit. (Id. ¶ 92.) The man told Gonzalez that he was Sergeant Zayas, and Gonzalez
immediately starting experiencing heart palpitations, shortness of breath, and anxiety. (Id. ¶¶ 92,
93.) Because Gonzalez felt threatened and feared for his life, he attempted to walk around Zayas
and leave the area. (Id. ¶ 93.) Zayas raised his hand to make contact with Gonzalez and, in
response, Gonzalez screamed, “stop threatening me.” (Id. ¶ 93.) Afterwards, Gonzalez was able
to exit the building. (Id.) Gonzalez immediately went to the emergency room at Northwestern
Memorial Hospital, where he was informed that due to his mental state, the hospital could not
release him without prior approval from his psychologist. (Id. ¶ 94.) After contacting his
psychologist, Gonzalez was released. (Id. ¶ 95.)
In addition to these specific instances of alleged retaliation, Gonzalez also claims to have
been harassed by the police department more generally. Indeed, Gonzalez contends that certain
members of the Chicago Police Department continue to harass him, including by making latenight visits to his home on January 8, 2016 and February 18, 2016. (Id. ¶ 97.) Gonzalez has also
5
been harassed orally and in writing. (Id. ¶ 98.) Finally, on January 1, 2016, the City of Chicago
stopped paying Gonzalez. (Id. ¶ 96.)
In the midst of this retaliation campaign, Gonzalez sought medical attention for the
emotional distress caused by the alleged harassment. Gonzalez started seeing a psychologist after
a medical case worker noticed his distressed mental state and recommended he seek help. (Id.
¶¶ 66, 67.) After the medical case worker suggested mental health treatment, Gonzalez called his
primary care doctor regarding his stress and anxiety, and the doctor prescribed medication to
treat those symptoms. (Id. ¶ 68.) On August 20, 2015, Gonzalez began therapy with a
psychologist, who Gonzalez continues to see. (Id. ¶ 69.) Pursuant to a recommendation from his
psychologist, Gonzalez attended a psychiatric evaluation on January 4, 2016. (Id. ¶ 99.) The
psychiatrist prescribed Gonzalez additional medication, which he continues to take. (Id. ¶ 100.)
At some point, Gonzalez was fired from his position as police officer. It is unclear from
the amended complaint how exactly Gonzalez was fired but, on April 14, 2016, Gonzalez turned
in his badge and identification card to the Chicago Police Department. (Id. ¶ 101.) This lawsuit
followed on August 10, 2016.
As mentioned above, Gonzalez’s amended complaint (which is currently the operative
complaint) includes claims against 16 different Defendants. Those Defendants have organized
themselves into four groups, each represented by separate counsel and pursuing its own motion
to dismiss. Those four groups are as follows: (1) the City of Chicago, Caproni, and IPRA
Investigator Lakenya White (together, “City Defendants”); 3 (2) Superintendent McCarthy,
Former Interim Superintendent John Escalante, Superintendent Eddie Johnson, Chief Juan
3
Defendants Ilana Rosenzweig and Nathaniel Freeman are also parties to this lawsuit and employees of
IPRA. Summonses were issued to these two Defendants but they have not appeared in the case.
6
Rivera, Chief Eugene Williams, Lieutenant Jacqueline Ellison, and Civilian Director of Human
Resources Division Donald O’Neill (together, “Officer Defendants”);4 (3) FOP and First Vice
President of the FOP Ray Casiano (together, “FOP Defendants”); and (4) Sergeant DeVito and
Sergeant Zayas.
DISCUSSION
I.
Res Judicata
Defendants first argue that the claims asserted by Gonzalez are barred by the doctrine of
res judicata. Under that doctrine, “when a final judgment has been entered on the merits of a
case, it is a finality as to the claim or demand in controversy, concluding parties and those in
privity with them, not only as to every matter which was offered and received to sustain or defeat
the claim or demand, but as to any other admissible matter which might have been offered for
that purpose.” Highway J Citizens Grp. v. U.S. Dep’t of Transp., 456 F.3d 734, 741 (7th Cir.
2006) (quoting Nevada v. United States, 463 U.S. 110, 129–30 (1983)). Although generally “it is
incorrect to grant a motion to dismiss under Rule 12(b)(6) on the basis of an affirmative defense”
such as res judicata, see McCready v. eBay, Inc., 453 F.3d 882, 892 n.2 (7th Cir. 2006), an
exception to this rule exists when a plaintiff “admit[s] all the ingredients of an impenetrable
defense” in his complaint and thereby pleads himself out of court. Xechem, Inc. v. Bristol-Myers
Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).
Because an Illinois state court rendered the order at issue here, this Court applies Illinois
law to determine whether res judicata bars Gonzalez’s claims. See Long v. Shorebank Dev.
Corp., 182 F.3d 548, 560 (7th Cir. 1999). Under Illinois law, the doctrine of res judicata applies
4
Gonzalez also has named an unknown officer as a Defendant. This party appears to have been identified
as Marco Tirado after the briefing for the motions to dismiss was complete. (See Mot. to File Am.
Compl., Ex. 1 at 6, Dkt. No. 73-1.) Tirado does not appear to have been served yet.
7
when there is “(1) a final judgment on the merits by a court of competent jurisdiction; (2) an
identity of the causes of action; and (3) an identity of parties or their privies.” See Perkins v. Cty.
of Cook, No. 13-cv-02430, 2014 WL 4783015, at *3 (N.D. Ill. Sept. 24, 2014); see also Rockford
Mut. Ins. Co. v. Amerisure Ins. Co. and Michigan Mut. Ins. Co., 925 F.2d 193, 195 (7th Cir.
1991). Here, only the second two elements are at issue. In addition, the party against whom res
judicata is invoked must have had a “full and fair” opportunity to litigate the claim in the prior
suit. Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir. 2007).
A.
Same Causes of Action
To determine whether two causes of action are the same, Illinois courts apply a
“transactional test” under which “separate claims will be considered the same cause of action for
purposes of res judicata if they arise from a single group of operative facts, regardless of
whether they assert different theories of relief.” River Park, Inc. v. City of Highland Park, 703
N.E.2d 883, 893 (Ill. 1998). The test is “pragmatic” as it focuses on the facts underlying the
different claims while disregarding “the number of substantive theories, the variant forms of
relief flowing from those theories, and the variations in evidence needed to support the theories.”
Garcia v. Vill. of Mount Prospect, 360 F.3d 630, 637 (7th Cir. 2004). In other words, Illinois
courts do not “require the same evidence or an identical theory of relief” in order for the separate
claims to be considered the same cause of action. Cooney v. Rossiter, 986 N.E.2d 618, 622 (Ill.
2012).
The issue here is whether Gonzalez’s state and federal claims arise from the same group
of operative facts as his Circuit Court case. In his petition before the Circuit Court, Gonzalez
challenged the validity of the Police Board decision, alleging that it was against the manifest
weight of the evidence, violated his due process rights, and was otherwise capricious and
8
unreasonable. In the Circuit Court proceeding, Gonzalez solely sought review and reversal of the
Police Board’s suspension decision. Here, in contrast, Gonzalez brings federal claims pursuant to
42 U.S.C. § 1983, specifically alleging that the suspension decision violated his constitutional
due process rights and accusing Defendants of conspiracy. Those are the only federal claims
Gonzalez asserts in his amended complaint—Gonzalez’s remaining claims arise under state law.
While Gonzalez raises claims in this federal case that were not raised before the Circuit
Court, both the administrative appeal before the Circuit Court and the instant lawsuit question
the validity of the Police Board’s suspension decision. Furthermore, Gonzalez’s claims related to
the 30-day suspension that are raised for the first time before this Court arise from the same
group of facts as his previous claims—namely, the process leading up to his suspension.
Therefore, the administrative appeal and the federal causes of action arise from the same core of
operative facts.
B.
Same Parties
There is also an identity of parties or their privies with respect to the administrative
appeal and this federal case. “A determination regarding whether privity exists is to be conducted
on a case-by-case basis.” Harrison v. Deere & Co., 533 F. App’x 644, 649 (7th Cir. 2013)
(quoting Agolf, LLC v. Vill. of Arlington Heights, 946 N.E.2d 1123, 1132 (Ill. App. Ct. 2011)).
“[P]rivity may exist where a person is so identified in interest with another that he represents the
same legal right.” Jackson v. Callan Pub., Inc., 826 N.E.2d 413, 428 (Ill. App. Ct. 2005). For
example, interests are often aligned when one party is an agent of the other. See Garcia v. Vill. of
Mount Prospect, 360 F.3d 630, 636 (7th Cir. 2004). Therefore, as agents of their employer, an
employee may be in privity with their employer. See Henry v. Farmer City State Bank, 808 F.2d
1228, 1235 n.6 (7th Cir. 1986). Here, the issue is whether Gonzalez is bound by the previous
9
decision of the Circuit Court. As a consequence, the Court need only consider whether his rights
were adequately protected in the prior litigation. Because Gonzalez was the petitioner in the
Circuit Court case and is the plaintiff here, meaning the same parties are involved in both
proceedings, the Court finds that the privity element is satisfied.
C.
Full and Fair Opportunity to Litigate
The Court also must consider whether Gonzalez had a full and fair opportunity to litigate
his claims in the earlier action. “As a corollary to the transactional rule [of res judicata], Illinois
adopted the doctrine of merger and bar which precludes the sequential pursuit not only of claims
actually litigated, but of those that could have been litigated.” Garcia, 360 F.3d at 639. Illinois
state courts exercise jurisdiction over constitutional claims brought pursuant to § 1983. See
Manley v. City of Chicago, 236 F.3d 392, 397 (7th Cir. 2001) (“Illinois allows a plaintiff to join
constitutional claims under § 1983 with a request for administrative review.”). Furthermore, the
two federal claims that Gonzalez asserts here—for violation of his due process rights and
conspiracy to violate those rights—are based on conduct that occurred before Gonzalez filed his
administrative petition with the Circuit Court. Therefore, Gonzalez had the opportunity and
ability to join his § 1983 claims with his administrative appeal of the Police Board’s decision.
Consequently, all of the res judicata requirements are met with respect to the § 1983
claims, and Gonzalez is barred from bringing those causes of action in federal court. With
respect to his state law claims, however, those claims are either premised on actions that
occurred after Gonzalez filed his petition for administrative review or potentially constitute a
continuing violation. As a result, it is not clear that Gonzalez had a full and fair opportunity to
10
litigate the state law claims in Circuit Court. Therefore, those claims are not barred by res
judicata and the Court analyzes them more fully below.5
II.
Statute of Limitations
The City Defendants, Officer Defendants, and Sergeant DeVito argue that Gonzalez’s
state law claims for abuse of process (Count III), emotional distress (Counts VII and VIII),
defamation and libel (Count IX), and assault and battery (Counts V) should be dismissed as
untimely. As with the affirmative defense of res judicata, “[a]lthough generally a plaintiff is not
required to plead around an affirmative defense . . . the district court can dismiss a complaint as
untimely if the plaintiff has admitted all the elements of the affirmative defense.” Khan v. United
States, 808 F.3d 1169, 1172 (7th Cir. 2015); see also Cancer Found., Inc. v. Cerberus Capital
Mgmt., LP, 559 F.3d 671, 674‒75 (7th Cir. 2009) (“[D]ismissal is appropriate when the plaintiff
pleads himself out of court by alleging facts sufficient to establish the complaint’s tardiness.”).
Under Illinois law, the statute of limitations for tort claims against public employees is one year.
745 ILCS 10/8-101(a).
A.
Intentional/Negligent Infliction of Emotional Distress
Gonzalez asserts claims against all Defendants for intentional infliction of emotional
distress (Count VII) and negligent infliction of emotional distress (Count VIII). Both intentional
and negligent infliction of emotional distress claims can be continuing torts for which the clock
5
The Court’s subject-matter jurisdiction over this matter was based on the presence of a federal question.
Because Gonzalez’s § 1983 due process and conspiracy claims are dismissed with prejudice as barred by
res judicata, the amended complaint no longer presents a basis for federal-question jurisdiction and
normally the Court would not exercise supplemental jurisdiction over any surviving state law claims.
However, Gonzalez has filed a motion for leave to file a second amended complaint. (Dkt. No. 73.) In the
proposed second amended complaint attached to his motion, Gonzalez purports to assert additional
federal law claims that would potentially provide a basis for this Court’s subject-matter jurisdiction.
Gonzalez’s request to file a second amended complaint will be granted. In anticipation of Gonzalez filing
that complaint, the Court deems it prudent to consider the merits of Defendants’ motions to dismiss the
existing state law claims.
11
begins to run only when the last injurious act occurs. See Brown v. Kouretsos, No. 15-cv-11076,
2016 WL 3269000, at *3 (N.D. Ill. June 15, 2016). The Seventh Circuit has explained that
“the continuing violation concept is reserved for theories of liability that depend on the
cumulative impact of numerous individual acts, none of which is necessarily actionable in itself.”
Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1012 (7th Cir. 2003). Although Gonzalez
does not state his argument clearly, he seems to be claiming a continuing violation with respect
to his intentional and negligent infliction of emotional distress claims. But the start and end-dates
for Gonzalez’s alleged emotional distress is unclear from the amended complaint. Instead,
Gonzalez merely alleges that Defendants’ wrongful acts, broadly, caused him severe emotional
distress and anguish. Notably, the wrongful acts alleged in the amended complaint span ten
years. Since the Court views all facts in the light most favorable to Gonzalez, the Court views the
amended complaint as alleging infliction of emotional distress throughout the ten-year period
relevant to the amended complaint. In other words, Gonzalez has alleged an ongoing campaign
of continuous harassment that stretched over a ten-year period, with each individual act building
off the last one and none necessarily actionable on its own. This harassment continued at least
through February 18, 2016, when Chicago police made an unexpected, late-night visit to
Gonzalez’s home. Because Gonzalez has sufficiently pleaded a continuing violation as of
February 2016 for his intentional and negligent infliction claims, those claims fall within the
limitations period.
B.
Defamation and Libel
Gonzalez seeks to hold the City Defendants and the Officer Defendants liable for
defamation and libel (Count IX). Generally, the statute of limitations for libel and defamation
causes of action begins to run on the date when the challenged material is published. See Tom
12
Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 334 N.E.2d 160, 161 (Ill.
1975) (finding that the “cause of action accrues and the statute of limitation begins to run on the
date of publication of the defamatory material”). According to Gonzalez, the Police Board issued
a “Findings and Decisions” document sustaining his 30-day suspension on November 21, 2013.
Then, on December 18, 2013, the website DNAinfo.com published an article presenting the
details of the suspension. Even assuming that Defendants were somehow responsible for the
online article being published, the limitations period for Gonzalez’s defamation and libel claim
began to run on the date the article was published. Thus, to satisfy the statute of limitations,
Gonzalez had to file his claim by December 18, 2014. Gonzalez did not file his claim until
August 10, 2016, and thus it is time-barred.
C.
Assault and Battery
Gonzalez also asserts an assault and battery claim against Defendant DeVito. This claim
relates to two incidents: one on May 13, 2015 and one on November 4, 2015. Based on those two
separate incidents, Gonzalez argues that DeVito’s conduct was part of a continuing violation and
therefore any limitations period did not begin to run until the date of the last injury.
As noted above, “[t]he continuing violation doctrine acts as a defense to the statute of
limitations, by delaying its accrual or start date.” Kovacs v. United States, 614 F.3d 666, 676 (7th
Cir. 2010) (internal citation omitted). The doctrine applies when “a tort involves a continued
repeated injury” in which case “the limitation period does not begin until the date of the last
injury or when the tortious act ceased.” Field v. First Nat’l Bank of Harrisburg, 619 N.E.2d
1296, 1299 (Ill. App. Ct. 1993). The doctrine does not apply to “a series of discrete acts, each of
which is independently actionable, even if those acts form an overall pattern of wrongdoing.”
Rodrigue v. Olin Employees Credit Union, 406 F.3d 434, 442 (7th Cir. 2005).
13
In contrast to his emotional distress claims, Gonzalez’s assault and battery claims against
DeVito involve only two incidents, each of which was significant enough on its own to support a
cause of action. Gonzalez had all of the information he needed to file an assault claim against
DeVito after the May 13, 2015 incident. Furthermore, far from constituting a continuous series
of acts, the two encounters with DeVito were separated by six months. The Court “will only use
the continuing violation doctrine to make time-barred conduct actionable if it would have been
unreasonable for Plaintiffs to file suit when the time-barred conduct occurred.” Fairley v.
Andrews, 300 F. Supp. 2d 660, 670 (N.D. Ill. 2004). As such, Gonzalez is barred from bringing
an untimely claim related to the May 13, 2015 incident. But since the claim related to the
separate November 4, 2015 incident was timely filed, Gonzalez may pursue the claim of assault
and battery related to that incident.
III.
Remaining Substantive Claims
The Court next turns to the remaining claims that are not barred by either res judicata or
the statute of limitations, and considers Defendants’ argument that Gonzalez has not stated
claims for which he is entitled to relief. A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). To survive
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007). While the complaint need not include detailed factual allegations, there “must be enough
to raise a right to relief above the speculative level.” Id. at 555. The plaintiff must “‘plead [ ]
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
14
A.
Fraud
Gonzalez brings a fraud claim (Count IV) against the City Defendants and the FOP
Defendants. According to the amended complaint, Defendants executed a fraudulent settlement
agreement in an attempt to cover up the unlawful activity directed toward Gonzalez. To plead
common law fraud in Illinois, a plaintiff must allege the following elements: “(1) a false
statement of material fact; (2) defendant’s knowledge that the statement was false; (3)
defendant’s intent that the statement induce the plaintiff to act; (4) plaintiff’s reliance upon the
truth of the statement; and (5) plaintiff’s damages resulting from reliance on the statement.”
Connick v. Suzuki Motor Co., 675 N.E.2d 584, 591 (Ill. 1996). In addition, in federal court, the
heightened pleading standard under Federal Rule of Civil Procedure 9(b) applies to fraud claims.
See Slaney v. the Int’l Amateur Athletic Fed’n, 244 F.3d 580, 599 (7th Cir. 2001). Rule 9(b)
requires a party alleging fraud to “state with particularity the circumstances constituting fraud.”
Fed. R. Civ. P. 9(b).
Here, Gonzalez alleges that the City Defendants and the FOP Defendants improperly
attempted to settle his grievance by offering him a reduced suspension period. But according to
Gonzalez, his grievance previously had been withdrawn and therefore could not properly form
the basis of a settlement agreement. As such, Gonzalez alleges that the use of the withdrawn
grievance as part of the settlement process was fraudulent. Even accepting these facts as true, as
the Court must at the motion to dismiss stage, Gonzalez fails to plead that he relied upon the
truth of Defendants’ erroneous statement or that damages resulted from his reliance. Further, it is
not clear that resurrecting a withdrawn grievance constitutes a “false statement.” Because
Gonzalez has not adequately alleged the elements for fraud, this claim is dismissed without
prejudice.
15
B.
Intentional and Negligent Infliction of Emotional Distress
Gonzalez also asserts intentional and negligent infliction of emotional distress claims
against all Defendants (Counts VII and VIII). The Court first considers the intentional infliction
of emotional distress claim. Under Illinois law, “[t]he elements of intentional infliction of
emotional distress are (1) extreme and outrageous conduct by defendant, (2) intent to inflict or
knowledge of a high degree of probability that conduct would cause severe emotional distress,
and (3) severe emotional distress in fact.” Jimenez v. Thompson Steel Co., 264 F. Supp. 2d 693,
696 (N.D. Ill. 2003). “[T]he tort does not extend to ‘mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.’” McGrath v. Fahey, 533 N.E.2d 806, 809
(Ill. 1988) (quoting Restatement (Second) of Torts § 46, comment d at 73 (1965)). “Liability has
been found only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency.” Pub. Fin. Corp. v. Davis, 360 N.E.2d
765, 767 (Ill. 1976). Additionally, the resultant emotional distress must be so severe that no
reasonable person could be expected to endure it. See McGrath, 533 N.E.2d at 809.
In Illinois, the bar for extreme and outrageous conduct is especially high in the
employment context. This is due to the concern that “if everyday job stresses resulting from
discipline, personality conflicts, job transfers or even terminations could give rise to a cause of
action for intentional infliction of emotional distress, nearly every employee would have a cause
of action.” Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 867 (Ill. App. Ct. 2000).
Accordingly, courts “have limited recovery to cases in which the employer’s conduct has been
truly egregious.” Van Stan v. Fancy Colours & Co., 125 F.3d 563, 568 (7th Cir. 1997). For
example, the Illinois courts’ high standard is met when an employer “threaten[s] to exercise their
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power to coerce plaintiffs into doing something they would not otherwise do,” such as an illegal
act. Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 867 (Ill. App. Ct. 2000).
In this case, Gonzalez has not sufficiently alleged extreme and outrageous conduct that
would give rise to an intentional infliction of emotional distress claim. Overall, Gonzalez alleges
a campaign of harassment that included falsely accusing him of setting off mace in a restaurant,
unjustly suspending him, and retaliatory conduct by Officers DeVito and Zayas. However, as
currently pleaded, the conduct described by Gonzalez does not rise to the level of extreme and
outrageous behavior that could sustain a claim for intentional infliction of emotional distress in
the employment context. See Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill.
App. Ct. 1999) (dismissing intentional infliction of emotional distress claim as insufficient to
state a claim where plaintiff claims she was demoted, transferred, forced to perform demeaning
and humiliating tasks, harassed, intimidated, and threatened with termination, all in retaliation
for voicing safety concerns); c.f. Gilardi v. Schroeder, 833 F.2d 1226, 1234 (7th Cir. 1986)
(finding intentional infliction of emotional distress where an employer drugged and raped and
then discharged the employee); Everly v. United Parcel Serv., Inc., No. 89-cv-01712, 1989 WL
81961, at *3 (N.D. Ill. July 13, 1989) (denying motion to dismiss intentional infliction of
emotional distress claim where the plaintiff alleged her employer harassed her over several years,
including waiting over 10 hours to give plaintiff a phone message regarding the death of her
father, failing to give plaintiff a phone message about the molestation of her daughter, and
refusing to allow plaintiff to seek medical attention after she spilled acid on her body). For
example, Gonzalez alleges that members of the Chicago Police Department unexpectedly
showed up at his home late at night on at least two occasions. Gonzalez does not, however,
describe what exactly the officers did when they arrived at his house that would constitute
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extreme or outrageous behavior. If Gonzalez chooses to re-plead his intentional infliction of
emotional distress claim in a second amended complaint, he should allege sufficient facts about
what outrageous conduct occurred and who engaged in the conduct, as well as that they intended
to cause him emotional distress. Gonzalez may not simply group all Defendants together and
accuse them all, broadly, of intentionally inflicting emotional distress, as he has done in his
current complaint.
As for the negligent infliction of emotional distress claim, to succeed Gonzalez must
allege a “duty, as well as a breach that proximately caused the claimant an injury.” Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 703 (7th Cir. 2009). Under Illinois law, the existence of
a duty is a question of law to be determined by the Court. See Gouge v. Cent. Illinois Pub. Serv.
Co., 582 N.E.2d 108, 112 (Ill. 1991). “In determining whether to impose a duty upon a
defendant, a court will look at various policy considerations, such as the likelihood of harm, the
gravity of the injury, the burden of guarding against the injury, and the relationship between the
parties.” Corgan v. Muehling, 574 N.E.2d 602, 606 (Ill. 1991).
Gonzalez has not alleged in his amended complaint or argued in his briefing any reason
why Defendants owed him a duty. A relationship between two individuals may give rise to a
duty to avoid negligent infliction of emotional distress when the defendant’s relationship “carries
with it a foreseeable, and unreasonable, risk of causing emotional or mental harm.” Corgan, 574
N.E.2d at 606. In Corgan, for example, the Court held that a duty existed between a qualified
psychologist and his patient. Id. at 606. In that case, the doctor “held himself out as a qualified
psychologist, able to render counseling and advice,” the patient went to the doctor “for the
purpose of obtaining such counseling,” the doctor had sex with the patient during treatment, and
the doctor failed “to recognize or deal with the psychotherapeutic phenomenon of transference.”
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Id. at 606–07. As currently pleaded here, the amended complaint alleges no basis from which the
Court could find that any similarly-substantial relationship exists between any Defendant and
Gonzalez such as would warrant imposition of a duty.
Indeed, Illinois law indicates that there is no such duty for employers to avoid negligently
inflicting emotional distress upon their employees. See Brown v. Kouretsos, No. 15-cv-11076,
2016 WL 3269000, at *6 (N.D. Ill. June 15, 2016). Further, Gonzalez has not cited any case law
(nor has the Court found any) supporting the proposition that coworkers have a duty to avoid
negligent infliction of emotional distress. As for IPRA, the complaint indicates that their
employees had no relationship with Gonzalez and merely investigated the misconduct allegations
from a distance. Not only did Gonzalez fail to allege any sort of relationship between himself
and IPRA but he also fails to cite any caselaw suggesting that IPRA owes him a duty.
This leaves only Gonzalez’s relationship with FOP’s counsel as potentially establishing a
duty. FOP’s counsel briefly represented Gonzalez by writing and filing the initial petition for
administrative review of his suspension. Gonzalez alleges that FOP counsel included the
following false statement in the petition: “On April 19, 2012, Garry McCarthy, Superintendent of
Police, ordered the suspension of Plaintiff, Ricardo Gonzalez, for thirty (30) days, alleging
violations of certain rules of the Chicago Police Department by the Plaintiff.” (Am. Compl. ¶ 40,
Dkt. No. 6.) Even if counsel’s actions can be imputed to FOP generally, and even if a duty was
owed during the brief period of its representation, FOP counsel did not breach this duty by
misstating a relatively insignificant and non-inflammatory fact in Gonzalez’s petition.
In sum, Gonzalez has failed to allege that any Defendant owed him a duty based on a
relationship with him. Instead of specifying the duty owed by each individual Defendant,
Gonzalez has grouped all Defendants together and accused them all of negligently inflicting
19
emotional distress. Such a broad, undifferentiated accusation is insufficient to state a claim.
For these reasons, Gonzalez’s intentional and negligent infliction of emotional distress
claims are dismissed without prejudice.
C.
Abuse of Process
Gonzalez asserts an abuse of process claim (Count III), alleging that certain Defendants
instituted proceedings against him for ulterior motives. To plead a cause of action for abuse of
process under Illinois law, a plaintiff must allege: “(1) the existence of an ulterior purpose or
motive and (2) some act in the use of legal process not proper in the regular prosecution of the
proceedings.” Kumar v. Bornstein, 820 N.E.2d 1167, 1173 (Ill. App. Ct. 2004). Although
Gonzalez has alleged a campaign of harassment that included the unjust institution of judicial
proceedings, nowhere does he allege a motive or reason for those actions. Indeed, it is entirely
unclear from the amended complaint why Gonzalez believes that Defendants pinned the mace
incident on him when he was, in fact, innocent; nor does Gonzalez allege facts to plausibly plead
the existence of an ulterior motive or purpose. Gonzalez’s abuse of process claim is thus
dismissed without prejudice as well.
D.
Malicious Prosecution
For his malicious prosecution claim (Count II), Gonzalez alleges that certain Defendants
instituted judicial proceedings against him maliciously and with no probable cause. “A malicious
prosecution action is brought to recover damages suffered by one against whom a suit has been
filed maliciously and without probable cause.” Miller v. Rosenberg, 749 N.E.2d 946, 951–52 (Ill.
2001). In Illinois, a malicious prosecution claim based upon a civil proceeding has five elements:
(1) the commencement or continuance of an original judicial proceeding by the defendant; (2)
the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for
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such proceeding; (4) the presence of malice; and (5) special damages. Grundhoefer v. Sorin, 20
N.E.3d 775, 780 (Ill. App. Ct. 2014). “Probable cause in a malicious prosecution action is a state
of facts that would lead a person of ordinary care and prudence to believe or to entertain an
honest and sound suspicion that the accused committed the offense charged. Id. (internal
quotation marks omitted).
Gonzalez alleges that certain City Defendants and Officer Defendants are liable for
malicious prosecution based on their participation in the Circuit Court proceeding. But Gonzalez
was the one who petitioned the Circuit Court to review his case. Therefore, how could
Defendants be responsible for commencing or continuing the judicial proceedings? Further,
Gonzalez has cited no caselaw indicating that defending a petition for judicial review of an
administrative decision constitutes malicious prosecution. Without any allegations or caselaw
indicating that Defendants’ conduct constitutes the commencement or continuance of a civil
proceeding, Gonzalez has failed to plead a claim for malicious prosecution.6
IV.
Remaining Claims
After considering the arguments for dismissal raised in Defendants’ various motions,
Gonzalez’s assault and battery claim against DeVito based on the November 4, 2015 incident
and Gonzalez’s assault claim against Zayas survive. Gonzalez also asserts a claim for
indemnification (Count XI), purportedly against all Defendants. Gonzalez cites 745 ILCS 10/9102 to support this count. The statute states:
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.
6
To the extent Gonzalez attempts to resuscitate this claim by instead asserting that the institution of the
original complaint before IPRA and the Police Board constitutes malicious prosecution, the Court notes
that this claim is barred by res judicata as a matter that should have been raised before the Circuit Court.
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745 ILCS 10/9-102. This statute does not provide for indemnification from any entity other than
a local public entity, however. Accordingly, the indemnification claim only applies to the City of
Chicago.
V.
Motion to File Second Amended Complaint
Finally, Gonzalez seeks leave to file a Second Amended Complaint. Gonzalez alleges in
his motion to amend that new facts have arisen. Specifically, he asserts that he was sent a
fraudulent letter on March 30, 2017 stating that his employment with the Chicago Police
Department was terminated on December 15, 2017 and accepting Gonzalez’s resignation on
March 16, 2017. The Court grants Gonzalez’s motion to amend his complaint. However, as the
proposed second amended complaint attached to Gonzalez’s motion does not remedy any of the
deficiencies described above—but rather simply tacks on new allegedly retaliatory behavior to
the First Amended Complaint—the Court will not accept the currently tendered complaint at this
time. Instead, Gonzalez is granted leave to file a second amended complaint that takes into
account this Court’s ruling regarding the amended complaint.
CONCLUSION
For the reasons explained above, Defendants’ motions to dismiss (Dkt. Nos. 20, 25, 32,
39) are granted. Specifically, the federal due process (Count I) and conspiracy (X) claims are
dismissed with prejudice as barred by the doctrine of res judicata. The state law claims for
defamation and libel (Count IX) and assault and battery claims based on the May 13, 2015
incident involving Defendant DeVito (in Count V) are also dismissed with prejudice as timebarred. Meanwhile, Gonzalez’s state law claims for malicious prosecution (Count II), abuse of
process (Count III), fraud (Count IV), intentional infliction of emotional distress (Count VII),
and negligent infliction of emotional distress (Count VIII) are dismissed without prejudice for
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failure to state a claim. The remaining assault and battery claim based on the November 4, 2015
incident involving Defendant DeVito (in Count V) and the assault claim (Count VI) will not be
dismissed at this time. Instead, the Court will continue to assert supplemental jurisdiction over
those state law claims pending the filing of Gonzalez’s second amended complaint.
On the preceding point, Gonzalez’s motion to file an amended complaint (Dkt. No. 73) is
granted but the Court will not accept the proposed second amended complaint attached to the
motion at this time. In light of the instant ruling with respect to the viability of the amended
complaint, it is clear that the proposed second amended complaint is deficient in several respects.
Accordingly, the Court grants Gonzalez leave to file a second amended complaint that takes into
account this Memorandum Opinion and Order and, of course, that demonstrates a basis for this
Court to assert subject-matter jurisdiction over Gonzalez’s lawsuit. If Gonzalez fails to file a
second amended complaint that includes a basis for the Court to exercise subject-matter
jurisdiction, the case will be dismissed in its entirety and Gonzalez will have one year to refile in
state court. See 735 ILCS 5/13-217; Davis v. Cook Cnty., 534 F.3d 650, 654 (7th Cir. 2008).
ENTERED:
Dated: March 30, 2018
__________________________
Andrea R. Wood
United States District Judge
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