Carr v. Illinois State Police et al

Filing 30

MEMORANDUM Opinion and Order: For the reasons set forth in this memorandum opinion and order, this Court grants defendants' motion to dismiss R. 21 and denies Carr's motions to strike R. 23 and R. 26 . If Carr believes he can cure the deficiencies identified in this opinion in his claims against defendants David, Gibson, or Tran in their individual capacities, he may file a motion for leave to file an amended complaint within 30 days. The motion should attach the proposed amended complaint and be supported by a brief of no more than five pages describing how the proposed amended complaint cures the deficiencies in the current complaint. Should Carr choose to file such a motion, defendants should not respond unless ordered to do so by the Court. Signed by the Honorable Thomas M. Durkin on 12/4/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCUS CARR,
PLAINTIFF,
v.
ILLINOIS STATE POLICE; TROOPER
ERIC DAVID (Badge #6329), in his
Individual and Official Capacity; CAPTAIN
THE V. TRAN, in his Individual and Official
Capacity; LIEUTENANT MARCUS GIBSON,
in his Individual and Official Capacity,
DEFENDANTS.

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No. 17 C 413
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff Marcus Carr brings this pro se complaint against defendants Illinois
State Police, Trooper Eric David, Captain The V. Tran, and Lieutenant Marcus
Gibson alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983.
Currently pending before the Court are: (1) defendants’ motion to dismiss (R. 21);
(2) Carr’s motion to strike (R. 23); and (3) Carr’s amended motion to strike (R. 26).
For the reasons explained below, the Court grants defendants’ motion to dismiss (R.
21) and denies Carr’s motions to strike (R. 23, R. 26).
Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. Hallinan
v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009);
Fed. R. Civ. P. 12(b)(6). A complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and

providing defendant with “fair notice” of the claim and the basis for it. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted). This
standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual
allegations” are not required, “labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (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.’” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013)
(quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all
well-pleaded facts as true and draws all reasonable inferences in favor of the nonmoving party. Id.
Rule 12(b)(1) authorizes the Court to dismiss any claim for which the Court
lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Rule 12(b)(1) is the
proper vehicle when adjudicating issues of sovereign immunity.” Anderson v. United
States Dep’t of Agric., 2017 WL 4791776, at *2 (S.D. Ill. Oct. 24, 2017); accord Rao v.
Gondi, 2017 WL 4215889, at *1 (N.D. Ill. Jan. 11, 2017) (“Illinois filed its motion to
dismiss pursuant to Rule 12(b)(6) but motions asserting sovereign immunity are
typically filed pursuant to Rule 12(b)(1), which requires dismissal when the court
lacks subject matter jurisdiction.”). Rule 12(b)(1) also is the appropriate vehicle to

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adjudicate challenges to standing, which is a “jurisdictional requirement.” See Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). When
determining if subject matter jurisdiction is proper, “the district court must accept
as true all material allegations of the complaint, drawing all reasonable inferences
therefrom in the plaintiff's favor, unless standing is challenged as a factual
matter.” Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 691 (7th Cir. 2015)
(quotation marks omitted). If a defendant factually challenges the basis for federal
jurisdiction, “[t]he district court may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the
issue to determine whether in fact subject matter jurisdiction exists.” Apex, 572
F.3d at 444. “In all cases, the party asserting federal jurisdiction has the burden of
proof to show that jurisdiction is proper.” Travelers Prop. Cas. v. Good, 689 F.3d
714, 722 (7th Cir. 2012).
In evaluating a pro se complaint, the Court applies a less stringent standard
than it applies to formal pleadings drafted by lawyers. Smith v. Dart, 803 F.3d 304,
309 (7th Cir. 2015). But the Court need not ignore facts set forth in the complaint
that undermine the plaintiff’s claim, and the Court is not required to accept the
plaintiff’s legal conclusions. Johnson v. Thompson-Smith, 203 F. Supp. 3d 895, 900
(N.D. Ill. 2016).
Background
Carr alleges that on October 14, 2013, he was pulled over in a traffic stop by
Trooper Eric David, one of the defendants. R. 7 at ¶ 2. During the stop, Trooper

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David allegedly made racist comments to Carr and his wife, both of whom are
African-American, and treated them unnecessarily harshly on account of their race.
Id. For example, Trooper David threatened to “taze” Carr, and in addition to
conducting a series of standard field sobriety tests, he made Carr count backwards
from 69 to 34. Id. Trooper David also allegedly stated “[u]nbelievable no warrants”
after running Carr’s driver’s license information. Id.
During the stop, Trooper David gave Carr a breathalyzer test. Id. Carr states
that he has never seen his breathalyzer results, but that Trooper David told him
both that “[his] count was low” and that his breathalyzer result was .09 (which is
above the legal limit). Id. Carr alleges that he had taken Thera-Flu earlier that
night, and that if his blood alcohol level registered above the legal limit, the Theraflu was the reason why. Id. Trooper David found the Thera-Flu box when he
performed a search of Carr’s car. Id. at ¶ 6. Trooper David ultimately arrested Carr
for driving under the influence (“DUI”), in part, Carr alleges, because Trooper David
wanted to maintain his “streak” of making three DUI arrests per shift. Id. at ¶ 2.
Carr alleges that after his arrest, Trooper David refused to let Carr’s wife
drive their car home. Id. Instead, the car was towed, and Carr’s wife was left alone
on the road after midnight when Trooper David took Carr in for booking. Id. Carr
alleges that Trooper David “failed to promote safety” by leaving Carr’s wife alone on
the expressway in the middle of the night. Id. Carr’s wife is not a plaintiff in this
case.

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Carr alleges that on January 17, 2016, he filed a civil rights complaint with
the Illinois State Police Office of Internal Investigation. Id. at ¶ 3. The complaint
was investigated by Captain Tran, another defendant. Id. Carr alleges that Tran’s
investigation was inadequate because it did not contain information regarding
Carr’s breathalyzer results and because Carr’s wife, who had witnessed the event,
was never contacted. Id. The investigation was closed on May 3, 2016, after the
Illinois State Police Division of Internal Investigation found no evidence to support
Carr’s allegations. Id. at ¶ 5.
On December 28, 2016, Carr made a request under the Freedom of
Information Act for records related to the incident and complaints related to
Trooper David. Id. at ¶ 4. He learned from those records that Trooper David had
been disciplined in connection with other motorist complaints. Id. at ¶¶ 4, 8. Carr
believes that the investigation of his complaint failed to hold Trooper David
accountable for race discrimination. Id. at ¶ 4.
Carr’s pro se complaint filed on January 19, 2017 alleges violations of his
First, Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. R.
1. He filed an amended complaint on February 15, 2017 that is identical to the
original complaint except that it no longer attaches any exhibits. R. 7. In addition to
Trooper David and Captain Tran, Carr sues Lieutenant Marcus Gibson and the
Illinois State Police. The individual defendants are all sued in their personal and
official capacities. Carr seeks damages and “injunctive relief sufficient to protect
Plaintiff and his family from harassment by the Illinois State Police.” Id. at pp. 4-5.

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Discussion
Defendants move to dismiss the complaint, arguing: (1) Carr’s claims against
the Illinois State Police and individual defendants in their official capacities are
barred by Eleventh Amendment sovereign immunity or should be dismissed for lack
of standing; (2) the claims against Trooper David in his individual capacity are
time-barred; and (3) Carr has failed to state a plausible claim for relief against
Captain Tran or Lieutenant Gibson in their individual capacities. Carr moves to
strike defendants’ motion to dismiss, arguing that defendants have not properly
responded to his allegations with an answer and affirmative defenses. The Court
addresses each argument in turn.
1.

Illinois State Police And Official Capacity Claims: Eleventh
Amendment Immunity And Standing

Defendants move to dismiss all claims against the Illinois State Police and
the individual defendants in their official capacities on Eleventh Amendment
sovereign immunity and standing grounds. The Court begins by addressing the
claims against the Illinois State Police, followed by the official capacity claims.
Illinois State Police. Eleventh Amendment sovereign immunity bars a suit
in federal court against a state or its agencies unless the state consents to suit in
federal court or Congress has abrogated the state’s immunity. Pennhurst v.
Halderman, 465 U.S. 89, 100 (1984); Kroll v. Bd. of Trs. of the Univ. of Ill., 934 F.2d
904, 907 (7th Cir. 1991). The Eleventh Amendment applies to the Illinois State
Police as an agency of the State of Illinois. See Tucker v. Williams, 682 F.3d 654,
659 (7th Cir. 2012) (“State agencies are treated the same as states for purposes of

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the Eleventh Amendment.”); see also, e.g., Moore v. Ill. State Police, 2001 WL
1636920, at *2 (N.D. Ill. Dec. 20, 2001) (collecting cases finding the Illinois State
Police to be a state agency for Eleventh Amendment purposes). Illinois, and the
Illinois State Police as its agent, have not waived Eleventh Amendment immunity.
See 745 ILCS 5/1 (“the State of Illinois shall not be made a defendant or party in
any court”). And “Congress has not expressly conveyed an unequivocal intent to
abrogate the state’s immunity under Section[] . . . 1983.” McGee v. Ill. Dep’t of
Transp., 2002 WL 31478261, at *3 (N.D. Ill. Nov. 5, 2002); see also Gossmeyer v.
McDonald, 128 F.3d 481, 493 (7th Cir. 1997) (“finding neither waiver” by Illinois
“nor congressional override”). Accordingly, the Court dismisses Carr’s § 1983 claims
against the Illinois State Police. See, e.g., Moore, 2001 WL 1636920, at *2
(dismissing § 1983 claim against Illinois State Police as barred by Eleventh
Amendment immunity and collecting cases).
Official Capacity Claims. Suits against state employees in their official
capacities are generally treated like suits against the state itself for Eleventh
Amendment purposes. Kentucky v. Graham, 473 U.S. 159, 169 (1985). In particular,
claims for “money damages” against individual defendants in their official
capacities are barred by Eleventh Amendment immunity. Garcia v. City of Chicago,
24 F.3d 966, 969 (7th Cir. 1994). Carr’s claims for money damages against the
individual defendants in their official capacities therefore must be dismissed.
Official capacity claims for prospective relief are not, however, treated as
actions against the state; therefore, an action against a state employee in his official

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capacity for injunctive relief is allowed. Graham, 473 U.S. at 167 n. 14; accord
Garcia, 24 F.3d at 969. And Carr does sue the individual defendants in their official
capacities for injunctive relief.
Defendants further argue, however, that Carr’s injunctive relief request fails
for lack of standing. To have standing to assert a claim for injunctive relief in
federal court, the threat of future injury “must be both real and immediate, not
conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)
(quotation marks omitted). In evaluating constitutional claims following arrests, the
Supreme Court and Seventh Circuit have found that a plaintiff lacks standing to
seek injunctive relief unless the plaintiff has plausibly alleged a “real and
immediate threat of again” being subjected to the alleged mistreatment. Id. at 110;
see Garcia, 24 F.3d at 969 (no standing to seek injunctive relief absent allegations
showing danger of future arrest in similar manner).
Carr’s request for injunctive relief arises from an arrest that occurred more
than four years ago. Just as in Lyons, “it is surely no more than speculation to
assert . . . that [Carr] himself will again be involved in one of these unfortunate
instances.” 461 U.S. at 108. Carr thus lacks standing to seek an injunction. See id.;
see also Garcia, 24 F.3d at 969.

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For these reasons, the Court dismisses pursuant to Rule 12(b)(1) Carr’s
claims against the Illinois State Police, his claims against defendants David, Tran,
and Gibson in their official capacities, and his request for injunctive relief.1
2.

Individual Capacity Claims Against Trooper David: Statute Of
Limitations

Trooper Davis moves to dismiss the individual capacity claims against him
under Rule 12(b)(6) as barred by the statute of limitations. “[W]hen a plaintiff’s
complaint . . . sets out all of the elements of an affirmative defense” of the statute of
limitations, “dismissal under Rule 12(b)(6) is appropriate.” Indep. Tr. Corp. v.
Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012).
As the Supreme Court has recently explained, “[s]tatutes of limitations are
designed to encourage plaintiffs to pursue diligent prosecution of known claims.”
California Pub. Employees’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2049 (2017)
(quotation marks omitted). Because Ҥ 1983 claims are best characterized as
personal injury claims,” “courts . . . apply the [relevant] state limitations period
governing personal injury claims to all § 1983 claims.” Woods v. Ill. Dep’t of
Children and Family Serv., 710 F.3d 762, 765 (7th Cir. 2013); accord Wilson v.

Dismissals under Rule 12(b)(1) are technically without prejudice. See
Remijas, 794 F.3d at 697 (dismissing for lack of “Article III standing” “necessarily
resulted in dismissal without prejudice”); Lewert v. P.F. Chang’s China Bistro, Inc.,
819 F.3d 963, 969 (7th Cir. 2016) (“the district court here dismissed the plaintiffs’
claims for lack of subject-matter jurisdiction, which is a dismissal without
prejudice”). Because the defects the Court has identified are not defects that can be
“cured by amending the complaint,” however, “this dismissal without prejudice [i]s
final in practical terms.” Nu%25nez v. Ind. Dep’t of Child Servs., 817 F.3d 1042,
1044 (7th Cir. 2016) (addressing “dismissal based on Eleventh Amendment
immunity”).
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Garcia, 471 U.S. 261, 276 (1985). “In Illinois, the statute of limitations for personal
injury actions is two years, and so section 1983 actions litigated in federal courts in
Illinois are subject to that two year period of limitations.” Jenkins v. Village of
Maywood, 506 F.3d 622, 623 (7th Cir. 2007) (citing 735 ILCS 5/13-202). “A civil
rights action generally accrues” and the statute of limitations begins to run “when
the plaintiff knew or had reason to know of the injury that is the basis of his claim.
Generally, a claim of false arrest and/or illegal search and seizure and/or excessive
force accrues at the time of the arrest/search and seizure.” Jamison v. Urban, 2010
WL 11545773, at *2 (N.D. Ill. Feb. 1, 2010), aff’d, 411 F. App’x 919 (7th Cir. 2011).
Carr’s complaint clearly and repeatedly states that the allegedly unlawful
conduct by Trooper David occurred on October 14, 2013. R. 7 ¶¶ 1, 2, 3, 4, 7. The
limitations period on Carr’s claims against Trooper David thus expired two years
later, on October 14, 2015. Carr did not file his complaint until January 19, 2017—
over a year after the statute of limitations expired.
Carr argues that the statute of limitations should be suspended because he
was on trial in state court on a related case (ticket number 37998655) from 2013 to
2016. R. 23 at 3. “Federal courts using state limitations periods . . . apply the state’s
coordinate tolling rules as well.” Jenkins, 506 F.3d at 624. Tolling of a civil rights
suit is permitted under Illinois statute “if the person entitled to bring an action . . .
at the time the cause of action accrued, is under the age of 18 years or is under a
legal disability.” 735 ILCS 5/13-211. A “legal disability” means being “entirely
without understanding or capacity to make or communicate decisions . . . and

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totally unable to manage [one’s] estate or financial affairs.” In re Doe, 703 N.E.2d
413, 414 (Ill. App. Ct. 1998) (quotation marks omitted). Carr’s argument for tolling
is not based on his age or legal disability.2
Nor does Carr’s argument based on his related state court case implicate
equitable tolling or other grounds for suspending the statute of limitations under
Illinois law. Equitable tolling requires a plaintiff to exercise “due diligence” in
pursuing a claim, a requirement that extends to pro se plaintiffs. Turner v. M.B.
Fin. Bank, 2017 WL 4390367, at *4-5 (N.D. Ill. Oct. 3, 2017) (collecting cases). Carr
does not “provide[] any explanation as to how [he] exercised all due diligence” here.
See id. at *5. And, in any event, “[t]he Seventh Circuit has expressed doubts about
whether equitable tolling exists under Illinois law.” Id. at *4 n.1 (citing Shropshear
v. Corp. Counsel of City of Chi., 275 F.3d 593, 596 (7th Cir. 2001); Fid. Nat. Title
Ins. Co. of N.Y. v. Howard Sav. Bank, 436 F.3d 836, 839 (7th Cir. 2006)).
Accordingly, the Court dismisses without prejudice Carr’s claims against Trooper
David in his individual capacity as barred by the statute of limitations.
3.

Individual Capacity Claims Against Captain
Lieutenant Gibson: Failure To State A Claim

Tran

And

Captain Tran and Lieutenant Gibson move to dismiss under Rule 12(b)(6)
Carr’s individual capacity claims against them for failure to state a claim on which
Carr does not provide any details about his state court case or indicate
whether he was incarcerated while his state court case was being decided. Although
imprisonment at one time was treated as a legal disability that tolled the statute of
limitations under Illinois law, Illinois later changed that law and “deprived
prisoners of any tolling benefits.” Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir.
1992). So even if Carr was incarcerated between 2013 and 2016, his incarceration
would not toll his claims.
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relief can be granted. To state a claim on which relief can be granted, Carr’s
complaint must contain factual allegations that, if taken as true, would allow “the
court to draw the reasonable inference that the defendant is liable for the alleged
misconduct.” Iqbal, 556 U.S. at 678.
Lieutenant Gibson. The complaint contains no allegations of misconduct by
Lieutenant Gibson. In fact, with the exception of the case caption and the
introductory paragraph, Lieutenant Gibson’s name appears nowhere in the
complaint. Moreover, the introductory paragraph simply states Lieutenant Gibson
violated Carr’s constitutional rights secured by § 1983 without any further facts or
explanation of Lieutenant Gibson’s involvement in the alleged misconduct. “[A]
valid § 1983 claim for damages” against a state official “in his individual capacity
requires a showing of direct responsibility for the improper action. In other words,
an individual cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation.” Moore v. State of Ind., 999
F.2d 1125, 1129 (7th Cir. 1993) (quotation marks omitted) (emphasis in original).
Because the complaint fails to allege any participation by Lieutenant Gibson in the
alleged constitutional violations, the Court dismisses Carr’s claims against
Lieutenant Gibson without prejudice. See, e.g., Potter v. Clark, 497 F.2d 1206, 1207
(7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on the part of
the defendant and the complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed, even under the

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liberal construction to be given pro se complaints.”); accord Black v. Lane, 22 F.3d
1395, 1401 n.8 (7th Cir. 1994).
Captain Tran. Carr alleges Captain Tran failed to interview Carr’s wife
while investigating Carr’s complaint filed with the Illinois State Police Office of
Internal Investigation against Trooper David, and that the investigation failed to
include records of Carr’s breathalyzer results. But “federal courts in the Seventh
Circuit have not recognized an allegation of inadequate police investigatory work [in
response to alleged misconduct] as sufficient to state a civil rights claim in the
absence of another recognized constitutional right. Indeed, police officers are not
constitutionally mandated to conduct an investigation at all.” Jacobson v. Nat’l R.R.
Passenger Corp., 1999 WL 1101299, at *10 (N.D. Ill. Nov. 29, 1999) (collecting
cases); accord Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007) (negligence by
police during investigation does not state a § 1983 civil rights violation). Because
Carr’s complaint as pleaded merely alleges an inadequate investigation by Captain
Tran, the Court dismisses Carr’s allegations against Captain Tran in his individual
capacity without prejudice.
4.

Carr’s Motion To Strike

Finally, Carr has filed two nearly identical motions to strike defendants’
motion to dismiss, arguing that defendants should have responded to his allegations
in an answer and through affirmative defenses. R. 23; R. 26. Under the Federal
Rules of Civil Procedure, however, it was procedurally proper for defendants to
move to dismiss this case pursuant to Rule 12(b)(6) prior to filing an answer and

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affirmative defenses. See Fed. R. Civ. P. 12(a)(4) (“serving a motion under this rule”
like the Rule 12(b)(6) motion filed by defendants in this case “alters the[] periods”
for answering a complaint and makes an answer due “within 14 days after” the
Court’s ruling on the motion to dismiss, “[u]nless the court sets a different time”).
For that reason, the Court denies Carr’s motions to strike.
Conclusion
For the reasons set forth above, this Court grants defendants’ motion to
dismiss (R. 21) and denies Carr’s motions to strike (R. 23 and R. 26). By dismissing
Carr’s claims, the Court makes no judgment of the facts alleged; it merely finds that
Carr has not sustained his legal burden of stating a claim for which he is presently
entitled to legal relief.
If Carr believes he can cure the deficiencies identified in this opinion in his
claims against defendants David, Gibson, or Tran in their individual capacities, he
may file a motion for leave to file an amended complaint within 30 days. The motion
should attach the proposed amended complaint and be supported by a brief of no
more than five pages describing how the proposed amended complaint cures the
deficiencies in the current complaint. Should Carr choose to file such a motion,
defendants should not respond unless ordered to do so by the Court.
ENTERED:

Honorable Thomas M. Durkin
United States District Judge

Dated: December 4, 2017

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