Raymond Willoughby et al v. Village of Fox Lake et al

Filing 122

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 6/6/2018: George Filenko's motion to dismiss the Third Amended Complaint 98 is granted. The complaint is dismissed without prejudice as to defendant George Filenko. Plaintiffs' motion for class certification 90 is denied. A status hearing is set for June 14, 2018, at 9:30 a.m. to discuss the next steps in the case. [For further details see Memorandum Opinion and Order]. Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAYMOND WILLOUGHBY,
DAMIEN WARD, and DAN COOPER,
Plaintiffs,
v.
VILLAGE OF FOX LAKE,
COMMANDER GEORGE FILENKO,
JOHN DOE POLICE OFFICERS,
JOHN DOE DEPUTY SHERIFFS,
JOHN DOE STATE POLICE AGENTS,
and JOHN DOE FEDERAL BUREAU OF
INVESTIGATION AGENTS,
Defendants.

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No. 17 CV 2800
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, George Filenko’s motion to dismiss Count I of the Third
Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is granted, and
plaintiffs’ motion for class certification is denied.
BACKGROUND
In this action, plaintiffs allege that their Fourth Amendment rights were violated when
they were arrested and detained in conjunction with the investigation that occurred after the
death of Charles Joseph Gliniewicz, who was a police lieutenant for the Village of Fox Lake,
Illinois (the “Village”). It was later revealed that Gliniewicz had staged his suicide to look like a
homicide. It is alleged that prior to taking his own life, Gliniewicz sent a radio transmission to
the Village police department falsely stating that he was in pursuit of three individuals, two
“male whites” and one “male black.” (ECF No. 93, 3d Am. Compl. ¶ 14.)

On December 21, 2017, the Court issued a Memorandum Opinion and Order denying the
Village’s motion to dismiss Count II of the Second Amended Complaint and granting defendant
George Filenko’s motion to dismiss Count I of the Second Amended Complaint. (ECF No. 92.)
The Court assumes familiarity with that opinion and order and the facts and procedural history of
this case.
With leave of court, plaintiffs filed a Third Amended Complaint. It contains the same
claims plaintiffs previously asserted: a claim under 42 U.S.C. § 1983 for unlawful search and
seizure in violation of the Fourth Amendment (Count I) and a Monell claim against the Village
(Count II). The only difference between the Second and Third Amended Complaints is the
addition of several paragraphs pertaining to defendant Filenko, an attempt to cure the
deficiencies the Court previously discussed in its memorandum opinion. Filenko moves to
dismiss the claim asserted against him. Plaintiffs move for class certification.
DISCUSSION
A.

Filenko’s Motion to Dismiss Count I for Failure to State a Claim
A 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 Bell
Atl. Corp. v. Twombly, 550 U.S. 444, 570 (2007)). “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).
According to the Third Amended Complaint, Filenko was the Commander of the Lake
County Major Crimes Task Force (the “Task Force”), which assisted the Village with the
investigation of Gliniewicz’s death. The Court previously dismissed plaintiffs’ claim against

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Filenko because plaintiffs did not allege facts from which it could be inferred that Filenko was
personally involved in their arrests.
The doctrine of respondeat superior cannot be used to hold a supervisor liable for
conduct of a subordinate that violates a plaintiff’s constitutional rights. Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001). In order for a supervisor to be liable, he must be
“personally responsible for the deprivation of the constitutional right.” Matthews v. City of E. St.
Louis, 675 F.3d 703, 708 (7th Cir. 2012). To have personal involvement, the supervisor must
“know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of
what [he] might see.” Id.
The Court held that plaintiffs’ previous allegations against Filenko were threadbare and
thus insufficient. In addition to those allegations, plaintiffs now allege the following:
•

Filenko’s personal involvement in the conduct complained of herein was
more extensive than simply supervising the various involved officers, and
rather must be considered in light of the nature and scope of the Major
Crimes Taskforce agreement, separate and apart from Fox Lake’s de facto
policy which led to the unlawful detentions as has been, and will be,
described herein.

•

Once contacted by Fox Lake to assist in the investigation, Filenko (as
commander of the task force) and the various officers comprising the task
force acting under Filenko’s direction began investigating leads in the
manhunt for the fictitious “murderer,” which included and predominantly
consisted of, detaining and interviewing subjects.

•

As part of said investigation, Filenko personally directed officers to detain
specific persons for questioning.

•

Filenko gave such directions despite the fact that he knew the only
information provided by Gliniewicz of the purported “suspects” was their
race, and that this could not possibly give rise to probable cause or
reasonable suspicion to detain said persons, and as such, Filenko’s actions
were taken in bad faith and were willful and wanton in nature.

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•

Furthermore, as the investigation progressed, Filenko began to
increasingly insert himself into the media narrative surrounding the high
profile investigation and began giving regular interviews and/or press
conferences, ostensibly updating the public on the nature of the
investigation.

•

As his media profile began to rise, Filenko began to exert increased
pressure on his subordinates to locate the fictitious “murderer,” despite the
fact that he knew no probable cause or reasonable suspicion existed to
detain anyone based upon Gliniewicz’s description and the evidence
known to the Defendants at the time.

•

As a result thereof, more individuals were detained in conjunction with the
investigation, despite the fact that the investigation had clearly stalled due
to the lack of probable cause or reasonable suspicion and despite the fact
that no such probable cause or reasonable suspicion existed in the first
place.

•

Filenko is thus personally liable as the individual directing specific
officers to make specific arrests and detentions in spite of a clear lack of
probable cause or reasonable suspicion.

(3d Am. Compl. ¶¶ 71-78.)
Essentially, plaintiffs now allege in a wordy manner that Filenko led the Task Force and
generally gave orders to arrest and detain specific persons.

Plaintiffs thus persist in

impermissibly relying on the doctrine of respondeat superior. They fail to connect Filenko in
any way to their arrests or detentions. They do not plead that Filenko directed their arrests or
detentions or knew about them and facilitated, approved, condoned, or turned a blind eye to
them. Accordingly, the Court grants Filenko’s motion to dismiss the complaint as against him.
Filenko seeks a dismissal with prejudice, but plaintiffs request a dismissal without
prejudice on the ground that further discovery may reveal more facts about Filenko’s personal
involvement. Although plaintiffs have already had multiple opportunities to state a claim against
Filenko, it does not appear that discovery is complete. Filenko’s dismissal therefore will be
without prejudice, but without leave to replead at this time. If plaintiffs in good faith determine
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after the completion of discovery that they can amend their complaint to allege facts that address
the deficiencies of their claim against Filenko, they must seek leave to do so.
B.

Plaintiffs’ Motion for Class Certification
To be certified, a proposed class must satisfy each requirement of Federal Rule of Civil

Procedure 23(a) as well as one of the three conditions of Rule 23(b). Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The Rule 23(a) requirements are
numerosity, typicality, commonality, and adequacy of representation. Id. After those four
requirements are satisfied, proponents of a class seeking certification under Rule 23(b)(3)—the
provision on which plaintiffs rely here—must also show that (1) questions of law or fact
common to the members of the proposed class predominate over questions affecting only
individual class members; and (2) a class action is superior to other available methods of
resolving the dispute. Id. Plaintiffs bear the burden of showing by a preponderance of the
evidence that their proposed class satisfies the Rule 23 requirements. See id. Failure to meet
any one of Rule 23’s requirements precludes class certification. Arreola v. Godinez, 546 F.3d
788, 794 (7th Cir. 2008). “[W]hen reviewing a motion for class certification, a court ‘may not
simply assume the truth of the matters as asserted by the plaintiffs,’ but instead must receive
evidence and resolve factual disputes as necessary to decide whether certification is
appropriate.” Balderrama-Baca v. Clarence Davids & Co., 318 F.R.D. 603, 608 (N.D. Ill. 2017)
(brackets omitted) (quoting Messner, 669 F.3d at 811).
In the opening pages of their motion, plaintiffs propose a class that consists of “all
persons that were stopped, questioned, arrested, or otherwise detained and deprived of their
liberty as purported suspects in the nationally-publicized murder investigation of Fox Lake
police lieutenant Charles Joseph Gliniewicz from September 1, 2015 and continuing through
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September 5, 2015.” (ECF No. 90, Pls.’ Mot. Class Certification at 1-2.) Later in their motion,
plaintiffs revise the proposed class definition as follows: “[A]ll persons arrested and/or detained
for questioning in conjunction with the death of Lt. Gliniewicz, except for those persons that
were: (a) detained pursuant to probable cause for another offense; (b) already in custody at the
time they were questioned; or (c) were the subject of credible information that he/they was/were
involved in Gliniewicz’s death provided by third parties.” (Id. at 7.)
Rule 23(a) states first that a class action may be maintained only if “the class is so
numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “While there
is no magic number that applies to every case, a forty-member class is often regarded as
sufficient to meet the numerosity requirement.” Mulvania v. Sheriff of Rock Island Cty., 850
F.3d 849, 859 (7th Cir.), cert. denied sub nom. Mulvania v. Rock Island Cty. Sheriff, 138 S. Ct.
361 (2017). The extent of plaintiffs’ argument in their motion regarding numerosity is as
follows:
On September 7, [the Village] produced portions of the [Task Force’s]
investigative file that memorializes the investigation performed into the
underlying shooting giving rise to this lawsuit. The portions produced were done
pursuant to negotiations between the parties to limit the scope of Plaintiffs’
production requests, and were subject to a motion for entry of a protective order
that was granted on September 7.
Included with the documents produced was a spreadsheet titled
“Spreadsheet of Leads,” which ostensibly categorizes the various leads that the
various officers investigated. The leads are categorized as either belonging to
“FL” or “CJIS.”1 The spreadsheet references 154 CJIS leads and 267 FL leads.
While Plaintiffs concede that not every single individual mentioned therein is a
putative class member, as some individuals were questioned based upon specific
intelligence provided by members of the public, even if only half of the “FL” and
“CJIS” lead subjects constitute putative class members, that would still put the
putative class well above the 40 person threshold whereby a presumption arises of

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Plaintiffs do not explain the meaning of these abbreviations. It appears that they may refer
to Fox Lake and the FBI’s Criminal Justice Information Services division.
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impracticality of joinder. Numerosity is thus satisfied within the confines of the
proposed class.
(Pls.’ Mot. Class Certification at 4-5.) This argument is based solely on assumptions and
conjecture. Plaintiffs do not attach the “leads” spreadsheet to their motion—or, for that matter,
any evidentiary material. Their explanation of the spreadsheet’s contents and relevance is
woefully lacking. Plaintiffs do not submit evidence (or contend) that each “lead” corresponds
with a specific individual or a specific individual who was arrested or detained (or questioned) in
conjunction with Gliniewicz’s death, nor do plaintiffs state how many individuals are listed in
the spreadsheet. Defendants point out that 182 of the leads refer to a person; for various
spreadsheet entries, the role of the person connected with the lead is identified; and only 69 of
the leads are identified as either a suspicious person or a person of interest. (ECF No. 102,
Defs.’ Resp. at 3.)
In reply, plaintiffs say that defendants’ argument is “curious” because the spreadsheet is
defendants’ own document, its relevance is “self-explanatory,” and their explanation that the
document was produced in discovery pursuant to negotiations between the parties “adequately
demonstrates the relevance and importance of the documents.” (ECF No. 113, Pls.’ Reply at 23.) This argument borders on the frivolous. The Court cannot assume that there is a sufficientlynumerous putative class; rather, it is plaintiffs’ burden to demonstrate that. Plaintiffs rely in
their opening brief on a document they do not submit to the Court and do not meaningfully
explain. In their reply, plaintiffs state that the spreadsheet “is attached as an exhibit,” but the
attached exhibit is not a spreadsheet. It is merely a one-page document titled “Gliniewicz
Investigation,” and contains a list of twenty events (mostly “interview” or “lead”), dated
September 1, 2015, through October 31, 2015, with corresponding “subjects” (a number of
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whom appear to be police officers).

Plaintiffs do not attempt to explain who created the

document, what it contains, or the relevance of its contents to numerosity. Because plaintiffs fail
to submit evidence of a sufficient number of individuals who were arrested or detained in
connection with the investigation during the five-day period plaintiffs cite and who are not
included in the exceptions to their class definition (or evidence from which an estimate can
reasonably be made), they fail to meet their burden of demonstrating numerosity. See Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“A party seeking class certification must
affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove
that there are in fact sufficiently numerous parties . . . .”).
Plaintiffs also fail to meet their burden of showing commonality and predominance.
Under Rule 23(a)(2), the commonality provision, there must be “questions of law or fact
common to the class.” Under Rule 23(b)(3), the predominance provision, “the questions of law
or fact common to class members [must] predominate over any questions affecting only
individual members.” The questions of commonality and predominance can “overlap in ways
that make them difficult to analyze separately.” Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360,
374 (7th Cir. 2015). Therefore, the two requirements “often are addressed together,” but the
predominance requirement is “far more demanding” than the commonality requirement. Tomeo
v. W&E Commc’ns, Inc., No. 14 C 2431, 2016 WL 8711483, at *16 (N.D. Ill. Sept. 30, 2016).
In their motion, plaintiffs argue that commonality is “readily satisfied” because each
individual listed in defendants’ “report of leads was investigated for possible involvement in
Gliniewicz’s death,” and many of those individuals “were detained for questioning based upon
circumstances that had nothing to do with anything relevant to Gliniewicz’s death.” (Pls.’ Mot.
Class Certification at 6.) Plaintiffs further argue that the “glue” holding the putative class
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members’ claims together is the common contention that they were “detained because of their
race . . . and no other reason.” (Id. at 7-8.) Plaintiffs describe the circumstances under which
three individuals other than the named plaintiffs were detained and questioned in relation to
Gliniewicz, as “representative examples provided . . . merely to illustrate that there are indeed
common patterns amongst the various detainees.” (Id. at 6-7.) According to plaintiffs, common
issues predominate here because, while the putative class members’ claims “may involve
individual factual divergences,” the claims will not “turn on” those issues but rather whether
Gliniewicz’s “threadbare description of the alleged perpetrators” gave the officers probable
cause or reasonable suspicion, an issue that can be decided in “one fell swoop.” (Id. at 13-14.)
In response, defendants first point out that a determination would need to be made for
each class member at the outset whether the individual was subject to a full custodial arrest
requiring probable cause or merely an investigatory stop requiring only reasonable suspicion.
Defendants also contend that there is no commonality or predominance because individual
determinations would need to be made for each class member as to whether their seizure or stop
was reasonable, and the circumstances are different for each class member. The Court agrees.
Probable cause to arrest exists where “the totality of the facts and circumstances known to a
reasonable arresting officer would support the belief that the suspect has committed or is
committing a crime.”

Driebel v. City of Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002).

Likewise, when determining whether an officer had reasonable suspicion to stop someone, courts
examine the totality of the circumstances known to the officer at the time, including the officer’s
experience and the behavior and characteristics of the suspect. United States v. Mays, 819 F.3d
951, 955 (7th Cir. 2016). The existence of probable cause or reasonable suspicion to arrest or
stop each class member thus depends on the totality of the facts and circumstances known to the
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arresting officer or officers, not merely on the information from Gliniewicz. As demonstrated by
the allegations of the named plaintiffs as well as the evidence submitted by defendants regarding
the three other putative class members to which plaintiffs refer, those circumstances differ for
each detainee.2 Liability, therefore, must be determined on an individual basis. See Portis v.
City of Chi., 613 F.3d 702, 705 (7th Cir. 2010) (“Because reasonableness is a standard rather
than a rule, and because one detainee’s circumstances differ from another’s, common questions
do not predominate and class certification is inappropriate.”); Harper v. Sheriff of Cook Cty., 581
F.3d 511, 515 (7th Cir. 2009) (common issues did not predominate where constitutionality of
detention depended on reasonableness of jail’s processing delay, which in turn depended on each
detainee’s individual circumstances). Furthermore, plaintiffs submit no evidence that supports
their argument (presented for the most part in their reply brief) that common issues predominate
because all putative class members were arrested or detained pursuant to the same “narrow” and
“specific” unconstitutional policy. Plaintiffs are not consistent even in identifying that alleged
policy; plaintiffs refer to it varyingly as detaining people “based upon circumstances that had
nothing to do with anything relevant to Gliniewicz’s death”; detaining people “because of their
race”; “seizing men pursuant to a vague descriptor proferred by the unreliable Gliniewicz”;
“stopping males”; and stopping and arresting “pursuant to a farce of a murder investigation.”
(Pls.’ Mot. Class Certification at 6-7; Pls.’ Reply at 5, 7-8.)

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Indeed, plaintiffs concede that “there may have been unique circumstances involved in each
detention or differing suspicions amongst the varying officers” and “there may have been unique
intelligence provided as to certain detainees.” (Pls.’ Mot. at 7-8.)
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Having concluded that plaintiffs fail to meet their burden of demonstrating numerosity,
commonality, and predominance, the Court need not discuss the remaining Rule 23
requirements. Plaintiffs’ claims must proceed as personal rather than class litigation.
CONCLUSION
George Filenko’s motion to dismiss the Third Amended Complaint [98] is granted. The
complaint is dismissed without prejudice as to defendant George Filenko. Plaintiffs’ motion for
class certification [90] is denied. A status hearing is set for June 14, 2018, at 9:30 a.m. to
discuss the next steps in the case.

DATE: June 6, 2018

____________________________________
Ronald A. Guzmán
United States District Judge

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