Gianonne v. Naperville
Filing
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MEMORANDUM Opinion and Order: For the foregoing reasons, Naperville's motion to dismiss Count III, 10 , is granted to the extent that Gianonne's claims against Naperville are dismissed without prejudice. The motion is denied to the exten t it seeks to strike portions of Gianonne's prayer for relief, without prejudice to raising these arguments later in the proceedings. Gianonne may file a second amended complaint if he believes he can, in accordance with Federal Rule of Civil P rocedure 11, cure the deficiencies described by this opinion and order with respect to Count III. Any such motion should attach the proposed second amended complaint as an exhibit and be supported by a brief of no more than five pages that explains h ow the second amended complaint cures the deficiencies of the first amended complaint. Defendants should not respond to any such motion unless the Court so orders. Any such motion must be filed by July 13, 2017, or the dismissal of Gianonne's claim against Naperville will be with prejudice. Signed by the Honorable Thomas M. Durkin on 6/13/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY GIANONNE,
Plaintiff,
No. 16 C 9455
v.
Judge Thomas M. Durkin
CITY OF NAPERVILLE; DETECTIVE
GONZALEZ; SARGENT BISSEGGER;
DETECTIVE CIMILLUCA; DETECTIVE
UMBENHOWER; DETECTIVE KOWAL;
DETECTIVE SPENCER; DETECTIVE
SHIPANIK; JOHN DOE OFFICERS ## 1-3,
Defendants.
MEMORANDUM OPINION AND ORDER
Anthony Gianonne initiated this case by filing a complaint on October 3,
2016. R. 1. In that complaint, Gianonne alleged that on December 2, 2013,
Defendants stopped him while he was driving his car, searched the car, and
arrested him, all in violation of the Fourth Amendment. Id. ¶ 19.
Naperville filed a motion to dismiss arguing that that Gianonne’s claim was
untimely. See R. 5. Since there is a two-year statute of limitations for constitutional
torts in Illinois, Gianonne had to have filed any claim based on the December 2,
2013 traffic stop and arrest by December 2, 2015. See Savoy v. Lyons, 469 F.3d 667,
672 (7th Cir. 2006); see also Stapinski v. Masterson, 2017 WL 497772 (N.D. Ill. Feb.
7, 2017). At the hearing on Naperville’s motion on December 12, 2016, Gianonne’s
counsel acknowledged that Gianonne’s claims were time-barred, and sought leave to
file an amended complaint, which the Court granted. See R. 8.
Gianonne filed an amended complaint on January 20, 2017. R. 9. The
amended complaint continues to make a claim against the individual officers and
Naperville based on the traffic stop and arrest that occurred on December 2, 2013,
but does so under a state law theory of malicious prosecution (Count I). Id. The
amended complaint also continues to make a claim against Naperville based on the
traffic stop and arrest pursuant to Section 1983 (Count III). Id. It also adds the
following allegations:
After Plaintiff’s arrest and detention, on information and
belief, the Naperville Police Department placed illegal
tracking devices on Plaintiff’s vehicle.
On information and belief, unidentified Officers placed
these tracking devices and did so without a warrant or
legal justification.
On belief these tracking devices remained on Plaintiff’s
vehicles until on or about May 2015 as the police
conducted an investigation of illegal organized crime
activities.
*
*
*
*
In Case 1:15-cv-05052, filed in this very court the
Naperville Police Department was sued for allegedly
illegally searching and seizure of a home. In this
complaint, Stephen Tracy has alleged similarly that the
officer had no warrant, no consent to search and the
occupant of the home had committed no crime.
In Case #15-cv-04608, currently pending in the Northern
District of Illinois, the Naperville Police ha[ve] been
accused of illegal search and seizure in an eerily similar
action. In that case, the Plaintiff was parked in [a]
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McDonald’s parking lot, was blocked in by the Naperville
Police and accused of DWI. Just as the matter before this
court, the Defendant was exonerated when a state court
judge ruled that the Naperville Police Department
violated his constitutional rights by engaging in illegal
searches and seizures.
R. 9 ¶¶ 54-56, 81-82. On the basis of the alleged placement of a tracking device on
Gianonne’s car, he makes claims against the individual officers for violation of the
Fourth Amendment (Count II), and against Naperville (Count III).
Naperville has moved to dismiss Count III. R. 10. As discussed, any claim
made pursuant to Section 1983 based on the traffic stop and arrest in 2013—
including his current Monell claim against Naperville—is time barred. Gianonne
does not argue otherwise. Thus, to the extent Count III attempts to allege a Fourth
Amendment violation against Naperville based on the traffic stop and arrest that
occurred on December 2, 2013, Naperville’s motion to dismiss that claim is granted.
Gianonne’s only remaining allegations concern the use by Naperville officers
of a tracking device on his car. Although Gianonne argues that he “plainly alleges
that [Naperville’s] policy or custom of failing to supervise [and] train resulted in the
constitutional violations,” R. 17 at 8, neither his allegations nor his arguments cite
Naperville’s alleged use of the tracking device as support for Monell liability against
Naperville. Rather, Gianonne only references the traffic stop as the basis for his
Monell claims. Thus, despite Gianonne’s additional allegations regarding the
tracking device, he has not made a Monell claim based on those allegations.
Nevertheless, it is likely that given a opportunity to amend his complaint, Gianonne
would make such a claim. So the Court will address them prospectively.
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“A local governing body may be liable for monetary damages under § 1983 if
the unconstitutional act complained of is caused by: (1) an official policy adopted
and promulgated by its officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well settled; or (3) an official
with final policy-making authority.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d
293, 303 (7th Cir. 2010) (citing Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436
U.S. 658, 690 (1978)). To claim Monell liability, a plaintiff must allege “that the
[entity] policymakers were deliberately indifferent as to [the] known or obvious
consequences.” Thomas, 604 F.3d at 303. “In other words, they must have been
aware of the risk they created by the custom or practice and must have failed to
take appropriate steps to protect the plaintiff.” Id.
The Seventh Circuit has made clear that, absent an express policy, Monell
liability is only appropriate where the “plaintiff [can] introduce evidence
demonstrating that the unlawful practice was so pervasive that acquiescence on the
part of policymakers was apparent and amounted to a policy decision.” Phelan v.
Cook Cnty., 463 F.3d 773, 790 (7th Cir. 2006) (the evidence must be such that the
plaintiff can “weave . . . separate incidents together into a cognizable policy”). For
an entity to be liable in this manner, the causal relationship between the policy or
practice and the harm must be such that the policy was the “moving force behind
the constitutional violation.” City of Canton v. Harris, 489 U.S. 378, 389 (1989);
accord Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th Cir. 2012). To successfully
plead a Monell claim on a “custom theory, the plaintiff must demonstrate that the
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practice is widespread and that the specific violations complained of were not
isolated incidents.” Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017).
While “evidence of a single violation of federal rights can trigger municipal liability
if the violation was a highly predictable consequence of the municipality’s failure to
act,” Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917 (7th Cir. 2004),
generally a plaintiff must “provide examples of [the defendants] taking actions
similar to those complained of,” or “plausibly allege that such examples exist.” Gill,
850 F.3d at 344; see also Thomas, 604 F.3d at 303 (“[T]here is no clear consensus as
to how frequently [certain] conduct must occur to impose Monell liability [under the
custom and practice theory], except that it must be more than one instance, or even
three.”) (internal citations omitted). In most circumstances, the “specific actions of
the [defendants] in [the plaintiff’s] case alone, without more cannot sustain a Monell
claim based on the theory of a de facto policy.” Id.
A.
Failure to Train
To the extent Gianonne claims that Naperville is liable for placing the
tracking device on his car because it failed to adequately train its police officers in
compliance with the Fourth Amendment, that claim is dismissed. In Connick v.
Thompson, 563 U.S. 51 (2011), the Supreme Court explained that municipal
liability based on an alleged failure to train must be supported by a pattern of
highly similar prior constitutional violations:
[Plaintiff] points out that, during the ten years preceding
his armed robbery trial, Louisiana courts had overturned
four convictions because of Brady violations by
prosecutors in Connick’s office. Those four reversals could
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not have put Connick on notice that the office’s Brady
training was inadequate with respect to the sort of Brady
violation at issue here. None of those cases involved
failure to disclose blood evidence, a crime lab report, or
physical or scientific evidence of any kind. Because those
incidents are not similar to the violation at issue here,
they could not have put Connick on notice that specific
training was necessary to avoid this constitutional
violation.
Id. at 62-63. This Court recently recognized the high standard for alleging Monell
liability based on failure to train. See Karney v. City of Naperville, 2016 WL
6082354, at *13 (N.D. Ill. Oct. 18, 2016). In Karney, the Court held that “such a
Monell claim would require a larger number of similar constitutional violations
before deliberate indifference based on a failure to train could be inferred.” Id. Here,
Gianonne has only his own allegations regarding the traffic stop and the tracking
device; the Karney case itself (in which Naperville was also the defendant); and
another federal case brought against a Naperville police officer. Naperville has a
population of more than 146,000, and is surrounded by other densely populated
suburbs. It is likely that Naperville police are faced with circumstances implicating
the Fourth Amendment on a daily basis. Three or four instances of illegal decisions
by its officers out of what are likely hundreds, or even thousands, of Fourth
Amendment searches and seizures conducted by Naperville police on an annual
basis, is insufficient to place Naperville on notice that additional training is
necessary. This is particularly true for Gianonne’s present claims since none of the
examples he provides to support his failure to train claim involved the illegal
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placement of a tracking device. Thus, Gianonne has failed to state a claim for
failure to train.
B.
Custom of Condoning Illegal Searches
Moreover, allegations sufficient to plausibly establish a custom of condoning
illegal searches that were present in Karney are not present here. In Karney, the
Court held that the plaintiff had stated such a claim on the basis of his own traffic
stop experience with Naperville police; an unrelated state case alleging that
Naperville officers had made a traffic stop in violation of the Fourth Amendment;
and a second unrelated federal case alleging that a Naperville officer had illegally
searched a house. See 2016 WL 60822354, at *10-13. Gianonne contends that his
traffic stop and Naperville’s use of a tracking device on his car are yet further
examples of Naperville’s custom of conducing searches that violate the Fourth
Amendment. He argues that the Court should apply the same reasoning in applied
in Karney to deny Naperville’s motion to dismiss.
The Court disagrees, however, that the use of a tracking device is sufficiently
similar to the two traffic stop searches and the search of the home the Court held
were sufficiently similar in Karney. The traffic stops both involved police officers on
patrol making decisions in the heat of the moment when they happened upon the
plaintiffs by chance. Similarly, the home search involved a police officer summoned
by a landlord for assistance in inspecting a tenant’s residence for purposes of the
landlord’s application to refinance the mortgage on the building. See Defendants’
Local Rule 56.1 Statement, Tracy v. Hull, 15 CV 5052, R. 64 ¶ 30 (N.D. Ill. Aug. 15,
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2016). All of these circumstances involved plaintiffs who had raised the suspicions
of the officers involved in some form or another, or resisted what the officers
believed to be a lawful instruction. In other words, the officers were immediately
reacting to the plaintiffs’ conduct and making a quick determination that a search
was necessary and appropriate. It is plausible to think that a police department
might consciously accommodate the snap decisions officers must make in the field
by developing a custom of regularly condoning illegal decisions under such
circumstances.
By contrast, the decision to place a tracking device on a car is a premeditated
attempt to investigate a potential suspect. There is nothing immediate about such a
decision. Rather, there is time to consider whether the evidence supports a finding
of probable cause and to secure a warrant. A decision to use a tracking device
without a warrant constitutes a complete disregard of an individual’s rights under
the Fourth Amendment and the legal processes instituted to ensure that those
rights are not violated. Unlike a custom that is born of a desire to accommodate the
difficult judgment calls police officers make every day, a custom of permitting illegal
use of tracking devices implies that Naperville has a degree of contempt for the
Fourth Amendment not present in the other cases Gianonne cites. Since Gianonne
has not presented any examples of conduct by Naperville officers akin to planting a
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tracking device on a car besides his own, his claim that Naperville has a custom of
tolerating illegal searches by its police officers is dismissed.1
Conclusion
For the foregoing reasons, Naperville’s motion to dismiss Count III, R. 10, is
granted to the extent that Gianonne’s claims against Naperville are dismissed
without prejudice. The motion is denied to the extent it seeks to strike portions of
Gianonne’s prayer for relief, without prejudice to raising these arguments later in
the proceedings.
Gianonne may file a second amended complaint if he believes he can, in
accordance with Federal Rule of Civil Procedure 11, cure the deficiencies described
by this opinion and order with respect to Count III. Any such motion should attach
the proposed second amended complaint as an exhibit and be supported by a brief of
no more than five pages that explains how the second amended complaint cures the
deficiencies of the first amended complaint. Defendants should not respond to any
such motion unless the Court so orders. Any such motion must be filed by July 13,
2017, or the dismissal of Gianonne’s claim against Naperville will be with prejudice.
Naperville also makes three arguments seeking to strike aspects of Gianonne’s
prayer for relief: (1) his claim for punitive damages against Naperville is improper;
(2) his “prayer for attorneys’ fees is overly broad because it can be construed as
seeking attorneys’ fees from the municipality in the event that the Plaintiff prevails
against an individual defendant”; and (3) he has no basis to seek injunctive relief. R.
10-1 at 10-11. As the proper form of relief is not yet at issue in this case, these
issues are not ripe. The Court will decide these issues if necessary when the time
comes.
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ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: June 13, 2017
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