Colon v. McLaughlin et al

Filing 40

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 10/9/2018. Mailed notice(ef, )

Case: 1:16-cv-10581 Document #: 40 Filed: 10/09/18 Page 1 of 9 PageID #:110

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

)
)
Plaintiff,
)
)
v.
)
)
KORY McLAUGHLIN, in both his individual )
capacity and his official capacity as a police
)
officer for the City of Naperville; SEAN
)
DRISCOLL, in both his individual capacity
)
and his official capacity as a police officer for )
the City of Naperville; and the CITY OF
)
NAPERVILLE, an Illinois municipal
)
Corporation,
)
)
Defendants.
)

No. 16-cv-10581
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff Sonya Colon (“Colon”) claims that Defendants Kory McLaughlin, Sean Driscoll,
and the City of Naperville (“City”) violated the Fourth Amendment to the United States
Constitution by unreasonably seizing her vehicle after her son was arrested for driving it while
intoxicated. Colon alleges that the seizure was undertaken pursuant to an unconstitutional City
ordinance and motivated by animus towards her family. Now before the Court is Defendants’
motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No.
13.) For the reasons explained below, the motion is granted.
BACKGROUND
The following facts taken from Colon’s complaint are accepted as true and viewed in the
light most favorable to her for purposes of the instant motion. See, e.g., Apex Dig., Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009).

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On November 21, 2014, Officer McLaughlin and Officer Driscoll, both police officers for
the City of Naperville, pulled over Colon’s son, Jason, based on suspicion of drunk driving.
(Compl. ¶¶ 8–9, Dkt. No. 1.) Jason explained to the officers that the vehicle was listing to the
right because it was damaged and that “the car [was] not okay to drive.” (Id. ¶ 9.) Nonetheless, the
officers arrested Jason for driving under the influence, a Class A misdemeanor under the Illinois
Vehicle Code. (Id.) The officers ran the license plate and found out that the vehicle belonged to
Colon. (Id. ¶ 10.) The Naperville Police Department subsequently called Colon, informed her of
her son’s arrest, and asked her to retrieve her dogs from the car. (Id. ¶ 11.) When she arrived at
the scene, Colon told Officer Driscoll that she owned the car and asked to drive it home. (Id.
¶ 14.) She further explained that, “[t]he car is damaged, and it wasn’t even supposed to be driven”
because “[t]he whole steering wheel is upside down.” (Id.) Colon added that she planned to get
the car fixed but the repair “was taking all the money” she had and, as such, she could not afford
to pay for towing expenses. (Id.) Officer Driscoll then searched the vehicle. (Id. ¶ 16.) Although
he found no contraband or evidence of any criminal offense, he did not allow Colon to drive her
vehicle and instead had it towed from the scene. (Id. ¶¶ 16–17.) According to Colon, the officers
towed her vehicle because of ill will against her family relating to her son’s prior police contacts.
(Id. ¶ 18.) As a result, Colon was deprived of her vehicle from November 21, 2014 until about
March 10, 2015.1 (Id. ¶ 26.)
DISCUSSION
To survive a Rule 12(b)(6) motion, the 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
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With this lawsuit, Colon seeks declaratory relief to the effect that § 11-5B-13 of the Municipal Code of
Naperville Illinois is unconstitutional, compensatory and punitive damages, and an award of attorney’s
fees and litigation costs.

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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the
complaint need not contain detailed factual allegations, there “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Rather, “[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.
I.
Colon alleges that her vehicle was unlawfully seized and impounded by the Naperville
Police Department in violation of the Fourth Amendment, which protects individuals against
unreasonable searches and seizures. See U.S. Const. amend. IV. “[T]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’” Riley v. California, 134 S. Ct. 2473, 2483 (2014)
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). To determine whether a seizure was
reasonable, courts look at the totality of the circumstances, “assessing, on the one hand, the degree
to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S.
295, 299–300 (1999).
Colon has sued the City of Naperville as well as McLaughlin and Driscoll, for the
unconstitutional seizure of her car.2 Local governing bodies, such as the City of Naperville, may

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Colon has sued McLaughlin and Driscoll in both their individual and official capacities. An action under
42 U.S.C. § 1983 allows a party to sue a “person” in his or her individual or official capacity. Monell v.
Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Official-capacity suits are simply “another
way of pleading an action against an entity of which an officer is an agent.” Id. at 690 n.55. In effect, an
official-capacity suit is not a suit against the government official individually, but rather against the local
government entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985). By contrast, an individual-capacity suit
seeks to impose personal liability on an individual who, under the color of state law, custom, or policy,
violates a party’s constitutional rights. Id. Here, because Colon has also named the City of Naperville as a

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be sued directly for constitutional violations under 42 U.S.C. § 1983 only if the unconstitutional
act about which the plaintiff complains was caused by (1) an express municipal policy; (2) a
widespread, though unwritten, custom or practice; or (3) a decision by a municipal agent with
final policy-making authority. Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir.
2011); see also Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). A
plaintiff asserting such a claim must show that the official policy or custom was the direct cause
or moving force behind the deprivation of their constitutional rights. See Pyles v. Fahim, 771 F.3d
403, 409–10 (7th Cir. 2014). To do this, a plaintiff “must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” Bd. of Cty. Comm’rs of Bryan Cty. v.
Brown, 520 U.S. 397, 404 (1997).
Colon alleges that the City of Naperville is responsible for the unconstitutional seizure of
her car because the impoundment was authorized by § 11-5B-13 of the Naperville Municipal
Code. She contends that this provision is unconstitutionally broad insofar as it purports to
authorize Naperville police officers to have a motor vehicle towed simply because the officers
have probable cause to believe that the vehicle was used in connection with certain criminal
offenses. As for McLaughlin and Driscoll, Colon contends that each should be held individually
liable because they did not impound the vehicle for any justified reason and instead acted out of
animus towards her family when they seized her car.
Despite Colon’s assertion that the seizure was unjustified, her own allegations establish
that the impoundment was in line with the police officers’ community caretaking functions. An
impoundment by the police is reasonable if it is supported by probable cause or if it is undertaken
in furtherance of “public safety” or “community caretaking functions,” such as removing
Defendant, the claims against McLaughlin and Driscoll in their official capacities are duplicative and
properly dismissed. See Alicea v. City of Chi., No. 02-cv-0027, 2002 WL 1021553, at *4 (N.D. Ill. May 20,
2002).

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“disabled or damaged vehicles” and “automobiles which violate parking ordinances, and which
thereby jeopardize both the public safety and the efficient movement of vehicular traffic.” United
States v. Duguay, 93 F.3d 346, 352 (7th Cir. 1996) (quoting South Dakota v. Opperman, 428 U.S.
364, 368–69 (1976)). “An impoundment must either be supported by probable cause, or be
consistent with the police role as ‘caretaker’ of the streets and completely unrelated to an ongoing
criminal investigation.” Duguay, 93 F.3d at 352. Vehicles are frequently taken into police custody
in the interest of public safety and as part of “community caretaking functions.” Opperman, 428
U.S. at 368.
Prior to the seizure, both Colon and her son made McLaughlin and Driscoll aware that the
vehicle was damaged. (Compl. ¶¶ 9, 14.) Colon’s son specifically informed the police that “the
car was not okay to drive” because it was damaged and, as a result, tended to list to the right. (Id.
¶¶ 7, 9.) When Colon arrived on the scene, she reiterated that the car was damaged, explaining
that “[t]he whole steering wheel is upside down” and it “wasn’t even supposed to be driven.” (Id.
¶ 14.) Thus, according to Colon’s own allegations in the complaint, the car was unsuitable to
drive. What Colon has failed to allege is that the car was capable of being driven without
endangering the public safety. Without such allegations, Colon cannot establish that impounding
the vehicle was not in furtherance of McLaughlin and Driscoll’s community caretaking functions.
While Colon was present at the scene and able to drive the vehicle, Colon has not alleged that she
could have removed the vehicle without endangering the public. Therefore, the Fourth
Amendment claim fails because Colon’s allegations reveal that the officers had a constitutionally
permissible reason to seize her car.

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II.
Colon also challenges the constitutionality of § 11-5B-13 of the Naperville Municipal Code.
Section 11-5B-13 provides that whenever a police officer has probable cause to believe that a
vehicle is an “unlawful vehicle,” the police officer may authorize the towing of the vehicle.
Unlawful vehicles include stolen vehicles or vehicles used in the commission of a Class A
misdemeanor or a felony, or vehicles driven by someone for whom there is an active warrant for
his or her arrest. Naperville Municipal Code 11-5B-1.
In considering a challenge to the constitutionality of a statute, a court must determine
whether the plaintiff is challenging the statute “facially” or “as-applied.” See Ctr. for Individual
Freedom v. Madigan, 697 F.3d 464, 475 (7th Cir. 2012). A facial challenge occurs where the
relief sought would reach beyond the plaintiff’s particular circumstances. Id. An “as-applied”
challenge exists when a plaintiff claims that a statute as applied to his or her particular situation is
unconstitutional. Generally, facial challenges are disfavored as they “threaten to short circuit the
democratic process by preventing laws embodying the will of the people from being implemented
in a manner consistent with the Constitution.” See Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450–51 (2008). Further, a “facial challenge to a legislative Act is . . . the
most difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739,
745 (1987).
Colon asks this Court to declare Section 11-5B-13 “unconstitutional insofar as it purports
to authorize Naperville police officers to have motor vehicles towed simply because they have
probable cause to believe that they were used in connection with certain criminal offenses.”
(Compl. at 7.) Because Colon’s request for relief extends beyond her unique situation, it is a facial

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challenge to the statute. This challenge fails, however, because Colon cannot establish that
Section 11-5B-13 is unconstitutional as to all seizures actually authorized by it. Bell v. City of
Chi., 835 F.3d 736, 738–41 (7th Cir. 2016). Indeed, the Seventh Circuit and courts in this District
have upheld similar impoundment ordinances against facial challenges under the Fourth
Amendment. See id. (affirming dismissal of facial challenge to ordinance allowing police officers
to impound vehicles that are not properly registered, used in an illegal manner, or used in
connection with an illegal act and noting that at least three types of warrantless seizures
authorized by the ordinance were permitted under Supreme Court precedent); Lintzeris v. City of
Chi., 276 F. Supp. 3d 845, 848–50 (7th Cir. 2017) (“A vehicle seizure supported by probable
cause to believe an offense involving the vehicle occurred is constitutionally reasonable . . . .”).
Consequently, Colon cannot maintain a facial challenge to Section 11-5B-13.
III.
In their motion to dismiss, Defendants also argue that the doctrine of res judicata prevents
Colon from bringing this lawsuit. The Full Faith and Credit Act, 28 U.S.C. § 1738, “requires
federal courts to give the same preclusive effect to state court judgments that those judgments
would be given in the courts of the State from which the judgments emerged.” Walczak v. Chi.
Bd. of Educ., 739 F.3d 1013, 1016 (7th Cir. 2014) (quoting Kremer v. Chem. Const. Corp., 456
U.S. 461, 466 (1982)). Once a final judgment on the merits has been reached by a court of
competent jurisdiction, it bars “any subsequent actions between the same parties or their privies
on the same cause of action.” Walczak, 739 F.3d at 1016 (quoting Rein v. David A. Noyes & Co.,
665 N.E.2d 1199, 1204 (Ill. 1996)). Thus, if a state court judgment would be granted preclusive
effect under state law and the party against whom preclusion is being sought enjoyed a full and
fair opportunity to raise his or her federal claim in the state court proceeding, then a federal court

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must afford that judgment preclusive effect. Abner v. Ill. Dep’t of Transp., 674 F.3d 716, 719 (7th
Cir. 2012).
Res judicata is an affirmative defense that applies to administrative hearings if the
administrative agency is acting in a judicial capacity when it resolves disputed issues of fact
properly before it. See Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008); Allahar v.
Zahora, 59 F.3d 693, 696 (7th Cir. 1995). An agency that provides the following safeguards is
acting in a judicial capacity: “(1) representation by counsel, (2) pretrial discovery, (3) the
opportunity to present memoranda of law, (4) examinations and cross-examinations at the
hearing, (5) the opportunity to introduce exhibits, (6) the chance to object to evidence at the
hearing, and (7) final findings of fact and conclusions of law.” Reed v. AMAX Coal Co., 971 F.2d
1295, 1300 (7th Cir. 1992). This Court requires a more complete factual record to ascertain
whether Colon was afforded these procedural safeguards in her administrative hearing. As it
stands, it is unclear whether Colon was represented by counsel, obtained discovery, was able to
present memoranda of law, had the opportunity to examine witnesses at the hearing, or was given
the chance to object to evidence. As such, the Court cannot conclude at the pleading stage that
Colon’s claim is barred by res judicata.
While the Court grants the motion to dismiss for the reasons discussed above, because
Defendants have not established the applicability of res judicata and Colon may be able to amend
her complaint to state a claim, the complaint is dismissed without prejudice.

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CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss (Dkt. No. 13) is granted and
Colon’s complaint is dismissed without prejudice.

ENTERED:

Dated: October 9, 2018

__________________________
Andrea R. Wood
United States District Judge

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