Johnson v. Posen Police Department

Filing 12

ORDER Signed by the Honorable Harry D. Leinenweber on 12/16/2016: The Court grants the Motion and dismisses Johnsons Complaint without prejudice. If Johnson does not amend his Complaint within twenty-one (21) days from the date of this Order, the dismissal will convert automatically Mailed notice(wp, )

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

SANUEL D. JOHNSON,
Plaintiff,

Case No. 16 C 9790

v.

Judge Harry D. Leinenweber

POSEN POLICE DEPARTMENT,
Defendant.

ORDER
Defendant

Posen

Police

Department’s

Motion

to

Dismiss

pursuant to FED. R. CIV. P. 12(b)(6) [ECF No. 6] is granted.

STATEMENT
The

following

Johnson’s

facts

are

one-paragraph,

taken

from

handwritten

Plaintiff

complaint.

Sanuel
They

D.
are

presumed true for purposes of deciding the motion to dismiss.
See, Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542
(7th Cir. 2007).
Around 2:30 a.m. on an unspecified date, Johnson was pulled
over

by

a

minutes.”

police

officer

after

being

followed

“for

7-10

He was then taken to a police station, presumably the

Posen Police Department’s.

Two other officers at the station

took cell phone pictures of Johnson in his neck brace.
officers

mocked

Johnson

when

he

told

them

to

stop

The
taking

pictures of him.
Johnson alleges that he felt violated and disrespected.
brings
racism,

claims

for

valation

“harasment

[sic]

of

my

[sic],

personal

Constitutional

property[,] loss of wages (Job).”

He

humiliation,

Right,

loss

of

Importantly, he names as a

defendant

only

the

Posen

Police

Department

and

not

any

individual officer.
In ruling on Defendant’s 12(b)(6) Motion, the Court applies
the

usual

standards,

although

it

construes

Johnson’s

pro

se

Complaint liberally and holds it “to a less stringent standard
than formal pleadings drafted by lawyers.”
655 F.3d 709, 718 (7th Cir. 2011).

See, Maddox v. Love,

The Court also notes that it

is making its ruling without the benefit of hearing from Johnson
since he has not filed a responsive brief to the Motion.
For the sake of completeness, the Court begins by making
note of some matters that were not addressed in the Posen Police
Department’s Motion.

First, while Johnson’s factual allegations

may state a claim for infliction of emotional distress under
Illinois law, he is not here suing the individual officers who
are presumably necessary parties for such claims.
FED. R. CIV. P. 19.

See, U.S.C.

Second, although the Posen Police Department

may be liable under the doctrine of respondeat superior for such
a

claim

against

its

officers,

the

Court

does

not

have

jurisdiction over that state-law claim unless it may exercise
supplemental jurisdiction in relation to a claim for which it
does have jurisdiction.

See, 28 U.S.C. § 1367.

As explained

below, the Court concludes that there is no such claim to give
it jurisdiction.
The

Court

finds

that

the

Complaint

does

not

plead

sufficient facts to make out any 42 U.S.C. § 1983 against a
municipality like the Posen Police Department.

Under Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), “a municipality
cannot be held liable under § 1983 on a respondeat superior
theory.”

Instead,

a

plaintiff

must

establish

that

his

constitutional injury was caused by a municipal “policy.”

Id.

at 690-91.

Plaintiff has not alluded to any such policy in his

Complaint.

There was no mention of any practice by the Posen
- 2 -

Police Department constituting either an express policy or an
implied policy “so permanent and well settled as to constitute a
‘custom or usage’ with the force of law.”
allegation

that

a

person

with

“final

Neither was there an

policymaking

acted to violate Johnson’s constitutional rights.

authority”

See, McTigue

v. City of Chi., 60 F.3d 381, 382 (7th Cir. 1995) (listing the
above

as

the

ways

in

which

a

§

1983

plaintiff

may

show

a

municipal “policy”).
Furthermore, it is unclear what federal “right, privilege,
or

immunity”

Johnson

Department violated.

is

claiming

that

the

Posen

Police

See, Ledford v. Sullivan, 105 F.3d 354,

356 (7th Cir. 1997) (“Section 1983 is not itself a source of
substantive

rights;

instead

it

is

a

means

federal rights conferred elsewhere.”).
Johnson’s

sparse

Complaint

as

for

vindicating

The Defendant interprets

potentially

stating

two

claims

under the federal Constitution:

a race-based Equal Protection

claim

pleading

on

Process

the

basis

property

of

Johnson

deprivation

claim

on

property” and “loss of wages (Job).”
add

that

it

is

possible

that

“racism”
the

and

basis

a

Due

“loss

of

To this the Court would

Johnson

is

asserting

an

unreasonable seizure claim from his arrest by the police.

The

Court addresses each of these underlying causes of action in
turn.
“To

state

allege that:
they

are

an

equal

protection

claim,

individuals

must

(1) they are a member of a protected class; (2)

otherwise

similarly

situated

to

the

members

of

an

unprotected class; (3) they were treated differently than the
members of the unprotected class; and (4) the defendant acted
with
Civil

a

discriminatory
Rights

intent.”

Liability

§

1-10

10.29

IL

Governmental

(2015).

Here,

Tort

&

Johnson

purportedly is bringing an Equal Protection claim based on race,
but he does not say what his race is.
- 3 -

He also does not explain

what state action he is challenging (the arrest? the taking of
his photos? the deprivation of property?) or how he was treated
differently

than

members

of

an

unprotected

class

in

such

actions.
As for a Due Process deprivation claim, a plaintiff must
show

that

he

“has

been

deprived

of

a

protected

liberty

or

property interest” and that “the deprivation occurred without
due process.”

See, Pro’s Sports Bar & Grill, Inc. v. City of

Country Club Hills, 589 F.3d 865, 870 (7th Cir. 2009).

Frankly,

the Court is at loss to figure out how Johnson lost “property”
(and what this property may be) or wages from his encounter with
the Posen Police Department.
“property”

or

wages

But even assuming that whatever

Johnson

lost

was

a

protected

interest,

Johnson has not alleged what process was due him but was denied
by the Posen Police Department.
Finally,
wrongful

arrest

officers.”
2011).

“[p]robable
claim

cause

is

asserted

an

under

absolute
§

1983

defense
against

to

a

police

Padula v. Leimbach, 656 F.3d 595, 601 (7th Cir.

Johnson’s

account

of

his

arrest

does

not

raise

any

reasonable inference that the police officer who stopped him
lacked reasonable cause for doing so.
the

arrest

minutes.”

was

that

the

officer

His only description of

followed

him

for

“7

to

10

Perhaps Johnson is asserting that this is too long of

a time for a police officer to be following somebody, but that
assertion does not state a cognizable violation of Johnson’s
privacy.

See, United States v. Jones, 565 U.S. 400, 412 (2012)

(“This Court has to date not deviated from the understanding
that mere visual observation does not constitute a search. . . .
[Accordingly,] a person traveling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his
movements

from

one

place

to

another.”)

quotation marks, and alteration omitted).
- 4 -

(internal

citations,

Or perhaps Johnson is

claiming that in the course of following him this long, the
officer was bound to witness some minor traffic violation which
he then used as a pretext to stop Johnson.

However, the Supreme

Court has approved of such policing tactics.

See, generally,

Whren v. United States, 517 U.S. 806 (1996).
In sum, the Court finds that even when liberally construed,
Johnson’s Complaint does not state a claim upon which relief can
be granted.

The Complaint fails to make out both a municipal

“policy” and an underlying constitutional violation for which
Defendant Posen Police Department may be held liable.
For the reasons stated herein, the Court grants the Motion
and dismisses Johnson’s Complaint without prejudice.

If Johnson

does not amend his Complaint within twenty-one (21) days from
the date of this Order, the dismissal will convert automatically
into a dismissal with prejudice.

Harry D. Leinenweber, Judge
United States District Court
Dated: December 16, 2016

- 5 -