Thomas v. City of Markham, The et al

Filing 52

MEMORANDUM Opinion and Order. The Court grants Defendant's Motion to Dismiss Counts I and II of Plaintiff's Complaint 22 . The Monell claims asserted against Markham in Counts I and II are dismissed without prejudice. Plaintiff may file an amended complaint consistent with this Opinion by October 27, 2017. Signed by the Honorable Jorge L. Alonso on 9/29/2017. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAFAYETTE THOMAS,
Plaintiff,
v.
THE CITY OF MARKHAM, ILLINOIS,
Officer WILLIAM BRAZIL, and
Officer ZAKIYA LARRY,
Defendants.

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No. 16 CV 08107
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion of Defendant, the City of Markham, Illinois
(“Markham”), to dismiss Counts I and II of Plaintiff’s Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). The Motion to Dismiss has been fully briefed by the parties. After
considering all arguments raised by both parties, the Court grants Defendant’s Motion to Dismiss
Counts I and II of Plaintiff’s Complaint.
BACKGROUND
Plaintiff, Lafayette Thomas, filed the instant action in August 2016 against Markham and
two of its police officers, Officer William Brazil and Officer Zakiya Larry. Plaintiff alleges that,
on March 17, 2016, he was brutally attacked and assaulted by Officer Brazil during a traffic stop
and that Officer Larry watched the attack and did nothing to stop it. Plaintiff alleges he was
seriously injured as a result.
Plaintiff asserts claims against the defendant officers and Markham of excessive force
(Count I) and a failure to intervene (Count II) pursuant to 42 U.S.C. § 1983, as well as certain
state law claims. Although not explicitly labeled as such, Counts I and II state Monell claims

against Markham, alleging that the defendant Markham’s policies of failing to train and failing to
discipline its police officers in regards to excessive force were the moving force behind the
defendant officers’ actions which violated Plaintiff’s Fourth Amendment rights.
LEGAL STANDARD
A Rule 12(b)(6) motion “tests whether the complaint states a claim on which relief may
be granted.” Richards v. Mithceff, 696 F.3d 635, 637 (7th Cir. 2012). To survive a motion to
dismiss for failure to state a claim, a plaintiff's complaint must contain “a short and plain
statement of the claim[s] showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The short and plain statement must “give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis
omitted).
Under federal notice-pleading standards, a plaintiff’s 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 (2009) (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S.
at 556). “If the allegations give rise to an obvious alternative explanation, then the complaint
may stop short of the line between possibility and plausibility of entitlement to relief.”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quotations and citations
omitted). In ruling on a motion to dismiss, courts must construe the complaint in the light most
favorable to the plaintiff, accepting as true all well-pleaded facts and drawing all reasonable
inferences in the plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
However, “legal conclusions and conclusory allegations merely reciting the elements of the

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claim” are not entitled to the presumption of truth. McCauley v. City of Chi., 671 F.3d 611, 616
(7th Cir. 2011).
ANALYSIS
Section 1983 authorizes a private cause of action against anyone who, while acting under
color of law, deprives a party of his/her constitutional rights. See 42 U.S.C. § 1983. In the
context of § 1983 claims, a municipality is not responsible for the alleged misconduct of its
employees; rather, a municipality can only be held liable when it has a policy or practice that
causes a constitutional violation. Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 691
(1978); see City of Canton, Ohio v. Harris, 489 U.S. 378, 379 (1989) (“[A] city is not liable
under § 1983 unless a municipal ‘policy’ or ‘custom’ is the moving force behind the
constitutional violation.”) (emphasis added). Thus, to state a so-called Monell claim against
Markham, plaintiff must allege that the constitutional violation was caused by: (1) an express
municipal policy; (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 custom or usage
within the force of law;” or (3) a decision by a municipal agent with final policymaking
authority. McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000).
Here, Plaintiff chooses the second option. Plaintiff advances his Monell claims based on
failure-to-act theories, alleging that as a matter of practice, Markham failed to train its officers to
refrain from using excessive force and failed to adequately discipline officers who used
excessive force. (See Pl.’s Compl., ¶¶ 53-54.)

The Supreme Court has noted that a

“municipality’s culpability for a deprivation of rights is at its most tenuous” under such
circumstances. See Connick v. Thompson, 563 U.S. 51, 61 (2011) (discussing failure-to-train
theory).

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To ultimately establish liability, a plaintiff must show that a harmful practice actually
exists and that the municipality’s policymakers were “deliberately indifferent as to the known or
obvious consequences” of that practice. Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303
(7th Cir. 2010) (citations omitted); see Sigle v. City of Chi., No. 10 C 04618, 2013 WL 1787579,
at *2 (N.D. Ill. 2013) (finding that plaintiff bringing excessive force claim based on “failure to
investigate, supervise, and discipline” must show deliberate indifference). Deliberate
indifference “is a stringent standard of fault” and is typically proven by “[a] pattern of similar
constitutional violations.” Connick, 563 U.S. at 61-62. Thus, at the pleading stage, Plaintiff must
plead facts that allow this Court to reasonably infer that Markham has a practice of failing to
train and discipline its officers in regards to excessive force, that Markham’s policymakers were
deliberately indifferent to officers using excessive force, and that the practice itself caused
Plaintiff’s injury. See Gallagher v. O’Connor, 664 F. App’x 565, 569 (7th Cir. 2016); see also
S.J. v. Perspectives Charter Sch., 685 F. Supp. 3d 847, 858 (N.D. Ill. 2010) (noting plaintiff must
plead facts showing deliberate indifference in granting defendant’s motion to dismiss Monell
claim).
Defendant essentially argues Plaintiff fails to adequately allege facts showing a pattern of
similar constitutional violations and thus fails to plausibly allege that a widespread practice was
in effect and that Markham officials knew and were deliberately indifferent to the rights of
Plaintiff. Plaintiff argues he has alleged facts showing Markham officers have repeatedly
engaged in a pattern of “citizen abuse” from which a practice can be inferred and that Markham
officials had notice of the problem and did nothing. Plaintiff argues that—at this stage—his
allegations are sufficient to state a Monell claim. The Court disagrees.

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After alleging specific facts about the incident giving rise to his claim, Plaintiff alleges
that his injuries were proximately caused by Markham’s “policy, practice, and custom of failing
to train, supervise and control its officers” as well as its policy and practice of “failing to
adequately punish and discipline prior instances of similar misconduct”. (See Pl.’s Compl., ¶¶
52-54.) Plaintiff then alleges that Officer Brazil has been named as a defendant in four lawsuits
in the past five years and that the city has settled these cases for undisclosed sums. (See id. at ¶
55.) Plaintiff also alleges that he spoke with Markham Mayor David Webb days after the
incident and that the mayor “uttered an expletive” when told Officer Brazil attacked Plaintiff.
(See id. at ¶ 56.) Further, Plaintiff alleges that other Markham officers have been been sued in the
past for “abusing citizens” and references one lawsuit that alleges excessive force and false
arrest. (See id. at ¶ 57.) Lastly, Plaintiff alleges that former Markham Deputy Chief Anthony
DeBois—who had been responsible “for many years” for responding to citizen complaints
against officers—was found to have sexually assaulted a woman in his custody and then lied
about it the FBI. (See id. at ¶ 58.) Plaintiff pleads that Markham “failed to act to remedy the
pattern of abuse” despite “clear notice of a problem” and that Markham’s failure caused
Plaintiff’s injuries. (See id. at ¶ 59.)
As an initial matter, several of plaintiff’s allegations are either not entitled to the
presumption of truth or are irrelevant to Plaintiff’s Monell claims. First, it is axiomatic that “legal
conclusions and conclusory allegations merely reciting the elements of the claim are not entitled
to [the] presumption of truth.” McCauley, 671 F.3d at 616 (citing Iqbal, 556 U.S. at 678 (“A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do.”) (citations omitted)). Thus, paragraphs 52-54 of Plaintiff’s complaint
offering “boilerplate legal conclusions” that Markham was deliberately indifferent and had

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harmful policies in place are not sufficient on their own to state Monell claims. See e.g., Falk v.
Perez, 973 F. Supp. 2d 850, 864 (N.D. Ill. 2013) (finding that “bare allegations of a policy or
custom” were not sufficient to state a Monell claim). 1
Second, Plaintiff alleges several irrelevant facts. In order to show Markham’s practice of
failing to train and discipline its officers as well as Markham’s deliberate indifference, Plaintiff
alleges facts which purportedly show a pattern of “repeated acts of abuse towards its citizens.”
(See Pl.’s Compl., ¶¶ 55-59.) To the extent these allegations do not point to other incidents of
Markham officers using excessive force, they do not describe incidents that are sufficiently
similar to constitute a pattern from which this Court can infer a harmful practice and Markham’s
deliberate indifference to its consequences.
In Connick, a plaintiff brought a Monell claim against a district attorney’s office after he
discovered that prosecutors had committed a Brady violation during his criminal trial; the
plaintiff alleged the office had a policy of failing to train its attorneys to produce exculpatory
evidence to opposing counsel. 563 U.S. at 54. In an effort to show the defendant had notice of its
attorneys’ lack of training and was deliberately indifferent to the consequences, the plaintiff
argued that four criminal convictions by the office had been overturned due to Brady violations
in a ten-year period. Plaintiff argued this pattern showed the defendant’s deliberate indifference.

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Plaintiff cites to a string of post-Iqbal cases—and this Court is aware of others in the Northern
District—which have found that such boilerplate allegations are sufficient to state a Monell claim. (See
Pl.’s Resp. at 4-5.) See Karney v. City of Naperville, No. 15 C 4608, 2016 WL 6082354, at *12 (N.D. Ill.
2016) (collecting cases). These cases rely on McCormick v. City of Chicago, which held that Monell
claims do not require a heightened pleading standard. 230 F.3d 319, 323 (7th Cir. 2000) (relying on
Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)).
McCormick predates Iqbal and Twombly. This Court relies on the Seventh Circuit’s decision in
McCauley, which applied the Iqbal/Twombly standard to alleging Monell claims. While Monell does not
require heightened pleadings, McCauley makes clear that such conclusory allegations, without more, are
insufficient to state a Monell claim. 671 F.3d at 617 (dismissing Monell claim and finding that many of
plaintiff’s allegations were “conclusions or elements of the cause of action, which may be disregarded on
a motion to dismiss.”).

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Id. at 62. The Supreme Court found the four reversals did not prove deliberate indifference
because the Brady violations in those cases were not sufficiently similar to the violation giving
rise to the plaintiff’s claim. Id. at 62-63. Unlike the plaintiff’s case, the prior Brady violations did
not “involve failure to disclose blood evidence, a crime lab report, or physical or scientific
evidence of any kind,” and thus, “they could not have put [the defendant] on notice that specific
training was necessary to avoid this constitutional violation.” Id. at 62-63.
Courts in the Seventh Circuit have followed suit, finding that allegations of general past
misconduct or allegations of dissimilar incidents are not sufficient to allege a pervasive practice
and a defendant’s deliberate indifference to its consequences. See, e.g., Strauss v. City of Chi.,
760 F.3d 765, 768-69 (7th Cir. 1985) (finding plaintiff failed to meet Monell pleading burden
where plaintiff alleged general data on citizen complaints and the city’s acquiescence to the
misconduct); Karney, 2016 WL 6082354, at *13 (noting that a prior unlawful search of an
apartment was “only marginally similar” to the plaintiff’s allegation of an unlawful search of his
vehicle in assessing failure-to-train Monell claim).
These cases show that many of the prior incidents of “citizen abuse” alleged by Plaintiff
are irrelevant. In paragraph 55 of his complaint, Plaintiff mentions four lawsuits involving
Defendant Officer Brazil. Only one case—Longley v. Brazil, 13-CV-01296—contains allegations
of excessive force against Markham officers, including Officer Brazil. The other cases involve
very different claims, such as false arrest or false imprisonment. This Court believes these claims
are not sufficiently similar to infer either a widespread practice of using excessive force or
Markham’s deliberate indifference to such a practice. 2

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Tellingly, Plaintiff does not argue that all four cases are sufficiently similar to his to support an
inference that Markham has the problematic policy that Plaintiff claims. Instead, he argues that
“Defendant cannot parse away Plaintiff’s allegations of at least one prior use of excessive force against

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Similarly, the allegations in paragraph 58 concerning former Deputy Chief Anthony
DeBois do not help Plaintiff. First, DeBois’ wrongdoing—as alleged—does not include
excessive force and thus does not add to a pattern from which this Court can infer a harmful
practice or Markham’s deliberate indifference. See Connick, 563 U.S. at 62-63. Second, not only
does Plaintiff fail to allege what time period DeBois led Markham’s internal affairs division, the
facts also show—by way of the news story included in paragraph 58—that DeBois was
criminally charged a full three years before the events giving rise to Plaintiff’s claim. DeBois
was long gone by the time Plaintiff was allegedly injured.
Thus, when the Court sets aside these allegations, the facts which remain are: (1) the
incident giving rise to Plaintiff’s claims; (2) two prior lawsuits which allege excessive force
violations against Markham officers; and (3) an expletive uttered by the Markham mayor when
he was told Officer Brazil attacked Plaintiff. Assuming these allegations are true, they fail to
permit the reasonable inference that the alleged practice “is so widespread so as to constitute a
governmental custom.” Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017).
The Seventh Circuit has made clear that although “there is no clear consensus as to how
frequently [harmful] conduct must occur to impose Monell liability,” a plaintiff must ultimately
show “there is a policy at issue rather than a random event.” Thomas, 604 F.3d at 303.
(emphasis added). The Court finds the Seventh Circuit’s decision in League of Women Voters of
Chicago v. City of Chicago instructive. 757 F.3d 722 (7th Cir. 2014). The plaintiff alleged that
the City of Chicago had a widespread policy of implementing new ward boundaries prematurely,
thereby causing equal protection violations. Id. at 727-728. In pleading its claim—which the
court treated as a Monell claim—the plaintiff alleged at least three separate instances of aldermen

Defendant Officer Brazil . . . and prior use of excessive force by other Markham officers.” (See Pl.’s
Resp. at 5.)

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acting or refusing to act based on the new boundaries. Id. The Seventh Circuit found this was
insufficient to state a Monell claim, observing that the acts “by individual aldermen is a far reach
from proving a policy so permanent and well settled as to constitute custom or usage with the
force of law.” Id. at 728 (quotations omitted).
Similarly, here, two prior excessive force lawsuits fail to plausibly show that Markham
had the widespread and well-settled policies that Plaintiff claims. The Court notes the gap in time
between the incidents leading to these prior lawsuits and to Plaintiff’s lawsuit. The incident
giving rise to the Longley case involving Officer Brazil happened in February 2011, and the
incident giving rise to the excessive force suit involving other Markham officers—described in
paragraph 57 of the complaint—happened in January 2010. Even if this Court accepts as true the
allegations in those lawsuits, 3 there remains a five-year gap between those events and the instant
incident. This Court cannot reasonably infer a “true municipal policy” was at work here; rather,
these incidents appear to be the sort of “random event[s]” that cannot lay the foundation of a
Monell claim. Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005).
Finally, the Markham mayor’s alleged comments—considered along with the prior
lawsuits—do not carry the day for Plaintiff. The complaint alleges that when told that Officer
Brazil attacked Plaintiff, “the Mayor uttered an expletive that clearly indicated this was not the
first time he had heard complaints about Brazil.” (See Plaintiff’s Complaint, ¶ 56.) Plaintiff
argues that his interpretation of the mayor’s response is a reasonable one. Even if this Court
makes the same inference, more would be required to make Plaintiff’s Monell claims plausible.
The Court would be required to infer that Markham’s policymakers not only knew of past
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Notably, some courts in the Northern District have declined to accept lawsuits or settlements as
supporting the existence of a municipality’s practice or its deliberate indifference. See e.g., Slaven v. City
of Chi., No. 85 C 7310, 1999 WL 1024563, at *1 (N.D. Ill. 1999) (ruling plaintiff could not amend his
complaint to add Monell claim based, in part, on city’s settlement of three lawsuits involving defendant
officers and observing that “absent an admission of wrongdoing, a settlement proves nothing”).

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complaints against Officer Brazil but also failed to take any action, thereby showing they were
deliberately indifferent to the rights of anyone who may cross Officer Brazil’s path. Such an
inference cannot reasonably be gleaned from Plaintiff’s allegations.
Thus, for the foregoing reasons, Plaintiff fails to plead facts which allow this Court to
reasonably infer that Officers Brazil and Larry acted pursuant to an unofficial policy or practice
in Markham “so persistent and widespread as to practically have the force of law.” Connick, 563
U.S. at 61. After Plaintiff’s legal conclusions and irrelevant allegations are set aside, Plaintiff
cites two lawsuits and an expletive uttered by Markham’s mayor. Based on these facts alone,
Plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Twombly,
550 U.S. at 570. Thus, Plaintiff fails to state Monell claims against Markham. 4
At this time, the Court declines to address Markham’s assertion that the viability of
Counts III – VII depends on a finding of constitutional violations in Counts I and II. (See Def.’s
Reply, at 3 n. 1.) Both parties’ arguments are underdeveloped in this respect, and as such, the
Court refuses to rule on the issue. See United States v. Olmeda-Garcia, 613 F.3d 721, 723 (7th
Cir. 2010).

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The Court agrees with the parties that the allegations in Count I form the foundation of Count II, which
alleges that Officer Larry’s failure to intervene to stop Officer Brazil constitutes a § 1983 violation. (See
Pl.’s Compl., ¶ 64.) Thus, because Plaintiff fails to plausibly allege Markham has an unwritten practice
of failing to train and failing to discipline its officers in regards to excessive force, the Monell claims in
both Counts I and II should be dismissed.

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CONCLUSION
The Monell claims asserted against Markham in Counts I and II are dismissed without
prejudice. Plaintiff may file an amended complaint consistent with this Opinion by October 27,
2017.
SO ORDERED.
ENTERED: September 29, 2017

____________________________
HON. JORGE L. ALONSO
United States District Judge

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