Campbell et al v. City Of Chicago et al
Filing
169
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/12/18.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMMANUEL CAMPBELL, RUBIN CARTER,
MARKEES SHARKEY, DEONTE
BECKWITH, CHANTE LINWOOD,
and RACHEL JACKSON, on behalf of
themselves and a class of similarly situated
persons, as well as BLACK LIVES MATTER
CHICAGO, BLOCKS TOGETHER,
BRIGHTON PARK NEIGHBORHOOD
COUNCIL, JUSTICE FOR FAMILIESBLACK LIVES MATTER CHICAGO,
NETWORK 49, WOMEN’S ALL-POINTS
BULLETIN, 411 MOVEMENT FOR
PIERRE LOURY, CHICAGO URBAN
LEAGUE, and NAACP,
Plaintiffs,
v.
CITY OF CHICAGO and CHICAGO
POLICE OFFICERS MIGUEL VILLANUEVA,
JOSUE ORTIZ, DOROTHY CADE, RICHARD
BOLIN, WAUKEESHA MORRIS, BRETT
POLSON, ANGEL PENA, JAEHO JUNG,
JOHN CORIELL, CHAD BOYLAN, THOMAS
MCGUIRE, ANTHONY OSTROWSKI,
LAWRENCE GADE, JR., JOHN LAVORATA,
PETER JONAS, TODD STANLEY, and
JESUS ROMAN,
in their individual capacities,
Defendants.
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17 C 4467
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs are individuals—and organizations whose membership includes
individuals—who have been and are likely to be subjected to excessive force and other
constitutional violations by the Chicago Police Department. Plaintiffs have brought
suit against the City of Chicago and seventeen Chicago Police Officers1 (“Defendant
Officers”). All of Plaintiffs’ class, injunctive, and Monell claims against the City of
Chicago and Defendant Officers are currently stayed, while the constitutional and
state law claims for damages asserted against Defendant Officers by the individually
named Plaintiffs—Immanuel Campbell, Rubin Carter, Chante Linwood, and Rachel
Jackson2—proceed. See ECF No. 156. Defendant Officers now move to dismiss the
complaint in part, pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). For
the reasons given below, the Court grants in part and denies in part the motion.
Factual Background3
I.
Immanuel Campbell
Plaintiff Immanuel Campbell, a 22-year-old black man, lives in Chicago and is
a student at the University of Illinois at Urbana-Champaign. Am. Compl. ¶ 19, ECF
No. 71. On the evening of July 9, 2016, Campbell was taking part in a peaceful
demonstration near the intersection of Roosevelt Road and Michigan Avenue. Id.
¶ 220. The goal of the demonstration was to bring attention to the topic of police
misconduct in Chicago. Id.
The parties have stipulated to the dismissal of Defendants Dorothy Cade, Richard
Bolin, Waukeesha Morris, Brett Polson, Angel Pena, Jaeho Jung, and Peter Jonas. See ECF
Nos. 145, 165. Ten Defendant Officers remain.
1
The parties have stipulated to the dismissal of Plaintiffs Deonte Beckwith and Markees
Sharkey’s claims against all parties. See Id.
2
The following facts are taken from Plaintiffs’ complaint and are accepted as true on
review of the motions to dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008) (stating that, at the motion-to-dismiss stage, the court “accept[s] as true all well-pleaded
facts alleged”).
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2
Campbell and other participants in the demonstration were approached by
Chicago Police Department (“CPD”) officers, including Defendant Officers Chad
Boylan, John Coriell, Thomas McGuire, and Anthony Ostrowski. Id. ¶ 221. The
Defendant Officers pushed Campbell, who stood unresisting with his hands at his
sides, into a crowd of other officers and to the ground, then physically beat him. Id.
¶ 222. After the beating, the Defendant Officers handcuffed Campbell and took him
to the police station, where he was kept in custody for several hours, id. ¶ 223, and
charged with violating a city ordinance that prohibited obstruction of traffic by a nonmotorist, as well as a misdemeanor offense of resisting arrest, id. ¶ 225.
The
Defendant Officers arrested Campbell to cover up their use of excessive force. Id.
¶ 223.
Campbell later received medical treatment at Carle Hospital in Urbana,
Illinois, for multiple contusions that he sustained during the incident. Id. ¶ 226.
Campbell’s cell phone was seized at the police station and only released several
weeks later, upon an order issued by the Circuit Court of Cook County. Id. ¶ 224. His
phone was searched, without a warrant, by officers including Todd Stanley, at the
behest of Officer Jesus Roman. Id. Campbell was also forced to defend himself in
court, id. ¶ 225, although the charges were eventually dismissed in a manner
indicative of his innocence, id. ¶ 227. However, Campbell was released from the
University of Illinois football team as a result of the false arrest. Id.
The Defendant Officers involved in Campbell’s beating have a history of
misconduct: Boylan, Coriell, McGuire, and Ostrowski have each been accused of
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misconduct, respectively, 2, 7, 14, and 2 times; they have each been required to justify
their use of force to superiors, respectively, at least 8, 3, 5, and 4 times. Id. ¶ 233.
II.
Rubin Carter
Plaintiff Rubin Carter is a 30-year-old black man who lives in Forest Park,
Illinois, and regularly visits his family in Chicago. Am. Compl. ¶ 20. On April 8, 2017,
Carter was visiting his cousin in the West Town neighborhood of Chicago. Id. ¶ 234.
At approximately 11:00 p.m., Defendant Officers Miguel Villanueva and Josue Ortiz
stopped Carter at the corner of Rockwell Street and Chicago Avenue. Id. ¶ 235. Carter
was not committing any crime, nor did he assault or threaten to assault the officers.
Id. Defendants Villanueva and Ortiz tased Carter repeatedly in his stomach and chest,
then continued to tase him as he lay on the ground in pain. Id. The officers then
arrested Carter and charged him with two counts of aggravated assault on a peace
officer. Id. ¶ 236. Defendants Villanueva and Ortiz further authored reports that
stated, falsely, that Carter posed a physical threat to the officers. Id. ¶ 237. Carter,
who was brought to Norwegian American Hospital after the taser incident, suffered
serious pain and an exacerbation of a pre-existing heart condition as a result of the
incident. Id. ¶ 238.
Defendant Ortiz has been accused of misconduct, including allegations of
excessive force and unnecessary physical conduct, on at least 24 occasions, and he has
been required to justify his use of force to superiors on at least 16 occasions. Id. ¶ 242.
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III.
Chante Linwood and Rachel Jackson
Plaintiff Chante Linwood is a 28-year-old black woman who lives with her
children in Chicago, Illinois. Am. Compl. ¶ 23. Linwood’s friend Rachel Jackson is a
26-year-old black woman who also lives in Chicago. Id. ¶ 24. On April 3, 2016,
Linwood and Jackson were visiting the Gold Coast neighborhood, along with other
friends, planning to attend a club on Division Street. Id. ¶ 268. Linwood, who was
pregnant with her second child at the time, worked as a popular deejay. Id. ¶ 268.
Jackson is a lifelong Chicago resident who works as a third-grade teacher in Chicago
public schools, as well as being a poet and playwright. Id. ¶ 282.
Linwood, Jackson, and their friends intended to check out a space at the club
for possible deejay opportunities. Id. ¶¶ 269, 282. They had been encouraged by
current DJs at the club to stop by and had been told that their names would be on the
club’s guest list with no entrance fee. Id. But when the women and their friends
attempted to enter the club, a security guard denied them entrance for improper
footwear and told them they “would never get into” the club, despite their names being
on the guest list. Id. ¶ 270. Jackson—who was wearing appropriate footwear—was
told that her shoes could get in, but she could not. Id.
As the women stood on the public sidewalk near the door of the club, the security
guard told them to get off the sidewalk and summoned nearby CPD officers. Id. Officer
Defendant (Sergeant) Lawrence Gade, Jr., and Officer Defendant John Lavorata then
performed an “emergency takedown” of Linwood.
They slammed Linwood into a
building, pulled her hair back from her head, pushed her to the ground, placed their
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knees on her back, and handcuffed her while wrenching her shoulders behind her back.
Id. ¶¶ 272, 286.
Linwood screamed in pain throughout this process.
Id. ¶ 272.
Jackson, meanwhile, attempted to film the incident with her phone, at which point one
of the officers tried to stop Jackson from filming. Id. ¶ 286. When Jackson continued
filming, the officers slammed her into a wall and handcuffed her. Id.
Linwood suffered severe shoulder pain and was unable to lift up her arms for
days after the occurrence; her injuries were further compounded by the fact that she
suffers from fibromyalgia.
Id. ¶ 273.
Jackson incurred bruising, abrasions, and
significant pain, and for days her wrists were bruised from the overly tight handcuffs.
Id. ¶ 288.
Both Linwood and Jackson were charged with resisting arrest and disorderly
conduct, charges that were filed by the officers to conceal their own excessive force. Id.
¶¶ 274, 287. Neither woman was read her Miranda rights when she was arrested. Id.
¶¶ 275, 287. They were both brought into Cook County Jail. Id. ¶¶ 275, 289. Linwood
was not permitted to call her babysitter to inform her she would not be coming home.
Id.
Defendant Gade has been accused of misconduct, including unnecessary
physical contact, illegal arrest, illegal search, and discriminatory verbal abuse on the
basis of race or ethnicity, at least 45 times, and has been required to justify his use of
force to superiors at least 26 times. Id. ¶ 280. Defendant Lavorata has been accused
of misconduct at least 9 times and required to justify his use of force on 31 occasions.
Id.
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Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally,
when considering motions to dismiss, the Court accepts “all well-pleaded factual
allegations as true and view[s] them in the light most favorable to the plaintiff.”
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013) At the same time,
“allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6)
motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012)
(citing Iqbal, 556 U.S. at 678). As such, “[t]hreadbare recitals of the elements of the
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
Analysis
The four remaining individually named Plaintiffs bring claims under 42 U.S.C.
§ 1983, alleging that Defendant Officers violated their Fourth Amendment rights
through use of excessive force and false arrest (Count I); conspired to deprive Plaintiffs
of their constitutional rights (Count II); and failed to intervene to prevent the violation
of Plaintiffs’ constitutional rights (Count III). Plaintiffs further bring state law claims
for civil conspiracy (Count VI) and intentional infliction of emotional distress (Count
VII). Campbell and Jackson also bring state law claims for malicious prosecution
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against the Defendant Officers involved in their arrests and detentions (Count VIII),
and Campbell brings claims under § 1983 for First Amendment retaliation and
unlawful search and seizure under the Fourth Amendment against the Defendant
Officers involved in his arrest and detention (Counts IV and V).
Defendant Officers seek to dismiss Plaintiffs’ conspiracy claims, contending that
Plaintiffs have not alleged facts suggesting an agreement; failure-to-intervene claims
on the basis of implausibility; and excessive force and false arrest claims as they relate
to Defendants Roman and Stanley on the grounds that Plaintiffs have not alleged that
those officers used excessive force. Defs.’ Mot. Dismiss at 4, ECF No. 89. Defendant
Officers do not move to dismiss the remaining claims asserted against them.
I.
Conspiracy Claims (Counts II and VI)
Plaintiffs bring claims for state law civil conspiracy (Count VI) and conspiracy
to deprive Plaintiffs of their constitutional rights (Count II). Plaintiffs claim that each
Defendant Officer “took concrete steps to enter into an agreement to unlawfully use
force on, detain, and arrest” the Plaintiffs, without probable cause, “for the purpose of
violating Plaintiffs’ Fourth and Fourteenth Amendment rights.” Id. ¶ 331. According
to Plaintiffs, Defendant Officers committed overt acts in furtherance of that purpose
when they “us[ed] excessive force to unlawfully effect the Plaintiffs’ arrests,
fabricat[ed] evidence against the Plaintiffs, and approv[ed] trumped up charges
against them, . . . result[ing] in their unlawful imprisonment,” id. ¶ 332, see also id.
¶ 353.
Although “a bare allegation of conspiracy [is] not enough to survive a motion to
dismiss for failure to state a claim,” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir.
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2009)), “[i]t is enough in pleading a conspiracy merely to indicate the parties, general
purpose, and approximate date, so that the defendant has notice of what he is charged
with,” Matthews v. Hughes, No. 14 C 7582, 2015 WL 5876567, at *2 (N.D. Ill. Oct. 5,
2015) (citing Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir.2002)). See also
Geinosky v. City of Chi., 675 F.3d 743, 749 (7th Cir. 2012) (“Under Twombly, all
plaintiff needed to allege was a plausible account of a conspiracy.”).
Defendant Officers first contend that the conspiracy claims must be dismissed
because Plaintiffs fail to allege facts indicating that the Defendants involved in any
one of the three incidents had knowledge of the other two incidents. Defs.’ Mot. at 5.
But the Court reads Counts II and VI not to assert that all of the Defendant Officers
were involved in one overarching conspiracy to deprive all Plaintiffs of their
constitutional rights, but rather that, with regard to each incident, the specific
Defendant Officers involved conspired to deprive the specific Plaintiff or Plaintiffs of
their constitutional rights. This is consistent with Plaintiffs’ factual allegations, which
allege that, in each incident, the officers involved in the incident colluded to conceal
the use of excessive force against Plaintiffs by arresting Plaintiffs without probable
cause. See Am. Compl. ¶¶ 223, 237, 274, 287. And such an approach is consistent with
Federal Rule of Civil Procedure 10(b), which requires that “claim[s] founded on a
separate transaction or occurrence” be stated in separate counts only “[i]f doing so
would promote clarity.”
The Court finds that, given the factual allegations, Counts II and VI clearly set
forth separate claims of conspiracy relating to each of the three incidents. There is
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therefore no need for Plaintiffs to plead that the officers involved in any of the three
incidents had knowledge of the other two incidents, and the Court denies Defendant
Officers’ motion to dismiss the conspiracy claims on this basis.
Defendant Officers next contend that the conspiracy claims must fail because
Plaintiffs have not alleged any facts about the “alleged agreement.” Defs.’ Mot. at 5.
But there is no requirement, at the motion-to-dismiss stage, that a plaintiff alleging
conspiracy plead any facts directly relating to an agreement. Indeed, the Seventh
Circuit has explained that plaintiffs alleging conspiracy need not “plead a meeting of
minds in detail,” as conspiratorial agreements “may need to be inferred even after an
opportunity for discovery, for conspirators rarely sign contracts.” Hoskins v. Poelstra,
320 F.3d 761, 764 (7th Cir. 2003).
Here, Plaintiffs have satisfied the pleading requirements for conspiracy, which
only require them to plead the parties involved, the general purpose, and the
approximate date, see Walker, 288 F.3d at 1007. Plaintiffs have indicated the specific
Defendant Officers involved in each incident, see Am. Compl. ¶¶ 221, 235, 272, and
286, and the dates the incidents took place, see id. ¶¶ 220, 234, 268, and 281. They
have alleged that the purpose of the conspiracy was to “use force on, detain and arrest”
Plaintiffs, id. ¶ 331, including arresting Plaintiffs without probable cause in order to
conceal the use of excessive force against those Plaintiffs, see id. ¶¶ 223, 237, 274, and
287. What is more, given Plaintiffs’ factual allegations, including Plaintiffs’ alleged
lack of wrongdoing in each incident, see id. ¶¶ 222, 235, 272, and 286, and the
allegations that many of the involved Defendants have extensive histories of
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misconduct accusations, see id. ¶¶ 233, 242, and 280, the Court finds that it is
plausible, under Twombly, that the Defendant Officers conspired to arrest Plaintiffs
and falsify documents in order to conceal the use of excessive force. See id. ¶¶ 223,
237, 274, and 287; Twombly, 550 U.S. at 556.
The motion to dismiss Plaintiffs’
conspiracy claims (Counts II and IV) is accordingly denied.
II.
Failure-to-Intervene Claims
In Count III, Plaintiffs allege that the Defendant Officers “stood by without
intervening to prevent the violation of Plaintiffs’ constitutional rights under the
Fourth and Fourteenth Amendments, even though they had the opportunity and duty
to do so.” Am. Compl. ¶ 336.
To state a claim for failure to intervene under § 1983, a plaintiff must plead that
the law enforcement officer “(1) had reason to know that a fellow officer was using
excessive force or committing a constitutional violation, and (2) had a realistic
opportunity to intervene to prevent the act from occurring.” Lewis v. Downey, 581 F.3d
467, 472 (7th Cir. 2009). “A realistic opportunity to intervene may exist whenever an
officer could have called for a backup, called for help, or at least cautioned [the
excessive force defendant] to stop.” Abdullahi v. City of Madison, 423 F.3d 763, 774
(7th Cir. 2005) (internal quotation marks omitted) (citing Yang v. Hardin, 37 F.3d 282
(7th Cir.1994)).
Defendant Officers argue that it is implausible for Plaintiffs to claim both that
the Defendant Officers failed to intervene (Count III) and engaged in excessive force
(Count I), and that all the failure-to-intervene claims therefore must be dismissed.
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Defs.’ Mot. at 5–6. They further contend that the failure-to-intervene claims must be
dismissed against Defendants Stanley and Roman, as Campbell failed to allege any
facts suggesting that either Defendant had a chance to intervene in the alleged abuse
of Campbell, id. at 6 (citing Am. Compl. ¶¶ 220–33), and that because Carter, Linwood,
and Jackson claim that all of the Defendant Officers involved in their alleged abuse
personally engaged in excessive force, any failure-to-intervene claims against those
Defendants (Gade, Lavorata, Ortiz, and Villanueva) cannot survive, id. at 6–7 (citing
Am. Compl. ¶¶ 259–61, 272, 286).4
Defendant Officers’ first argument—that all failure-to-intervene claims must
fail because it is “implausible” for an officer to both use excessive force and fail to
intervene—is contradicted by Seventh Circuit case law. In Sanchez v. City of Chicago,
the Seventh Circuit held that, “in a section 1983 action alleging that police violated
the plaintiff’s Fourth Amendment rights by subjecting him to excessive force, a
defendant police officer may be held to account both for his own use of excessive force
on the plaintiff, as well as his failure to take reasonable steps to attempt to stop the
use of excessive force used by his fellow officers.” 700 F.3d 919, 925–26 (7th Cir. 2012)
(internal citations omitted). See also id. at 926 (collecting cases). It is therefore not
Defendant Officers also argue, for the first time in their reply brief, that Plaintiffs’
claims for failure to intervene are impermissibly vague, because they do not allege “who” was
standing by and “when” they were standing by. Defs.’ Reply at 6, ECF No. 144. Defendants
have waived this argument by raising it for the first time in a reply brief. See Narducci v.
Moore, 572 F.3d 313, 324 (7th Cir. 2009). In any event, Plaintiffs have provided general periods
of time and the names of all officers involved, which is sufficient at this stage. See Sanchez v.
City of Chi., 700 F.3d 919, 926 (7th Cir. 2012) (noting that a failure-to-intervene claim could
proceed even if a plaintiff could not identify the officers engaged in excessive force).
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implausible to plead claims of excessive force and failure to intervene against the same
officers. For the same reason, the fact that Carter, Linwood, and Jackson allege that
Defendants Gade, Lavorata, Ortiz, and Villanueva used excessive force does not doom
their failure-to-intervene claims against those officers.
The motion to dismiss the failure-to-intervene claims against Defendants
Stanley and Roman is granted because Plaintiffs have clarified that they did not intend
to pursue failure-to-intervene claims against those officers. See Pls.’ Resp. at 11 n.2,
ECF No. 125. As to all other Defendant Officers, the motion is denied.
III.
Excessive Force Claims
In Count I, Plaintiffs bring claims of excessive force and false arrest against the
Defendant Officers.
Am. Compl. ¶ 324.
Defendant Officers move to dismiss the
excessive force and false arrest claims against Defendants Stanley and Roman,
arguing that Plaintiffs do not allege that these officers employed excessive force or
participated in an arrest. Defs.’ Mot. at 7. Because Plaintiffs have clarified that they
are not alleging excessive force or false arrest claims against Defendants Stanley, and
Roman, see Pls.’ Resp. at 12 n.3, the Court grants the motion to dismiss Count I as to
those Defendants.
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Conclusion
For the reasons stated herein, the Defendant Officers’ partial motion to dismiss
[89] is granted in part and denied in part.
The Court denies the motion to dismiss
Plaintiffs’ conspiracy claims (Counts II and VI); grants the motion to dismiss the
failure-to-intervene claims (Count III) as to Defendants Stanley and Roman, and
denies it as to all Defendant Officers; and grants the motion to dismiss the excessive
force and false arrest claims (Count I) as to Defendants Stanley and Roman. The
status hearing previously set for November 28, 2018 at 9:00 a.m. shall stand.
IT IS SO ORDERED.
ENTERED 9/12/18
__________________________________
John Z. Lee
United States District Judge
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