Hudson v. Zeettergren et al
Filing
25
OPINION AND ORDER Signed by the Honorable Sara L. Ellis on 9/4/2018: The Court grants in part and denies in part Defendants' motion to dismiss 18 . The Court dismisses the false arrest (count four), due process (count five), conspiracy (counts seven and eight), and failure to act to prevent conspiracy (count nine) claims without prejudice. The Court dismisses the replevin claim (count six) with prejudice. Mailed notice (mw, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HILTON HUDSON,
Plaintiff,
v.
ERIC ZETTERGREN, an individual,
ERIK PAYNE, an individual, MATTHEW
LIEBERMANN, an individual, BRIAN
BENTON, an individual, and the CITY OF
JOLIET, an Illinois municipal corporation,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 17 C 7493
Judge Sara L. Ellis
OPINION AND ORDER
On March 6, 2016, Defendants Eric Zettergren, Erik Payne, and Matthew Liebermann
(the “Defendant Officers”), Joliet police officers, stopped Plaintiff Hilton Hudson for having a
broken tail light and ultimately towed Hudson’s car. Hudson has failed to regain possession of
the car because of fines and costs owed to the Joliet police department. Hudson filed this suit
against the Defendant Officers, Brian Benton, the Joliet chief of police, and the City of Joliet (the
“City”), raising claims for retaliation (count one), illegal search and seizure (count two),
deliberate indifference (count three), false arrest (count four), due process violations (count five),
replevin (count six), conspiracy to deprive Hudson of his civil rights (counts seven and eight),
failure to prevent a conspiracy (count nine), and a permanent injunction (count ten). Defendants
move to dismiss the first amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).1 The Court finds that Hudson has sufficiently provided the Defendant Officers with
1
In his response to the motion to dismiss, Hudson agrees to withdraw his claims for conspiracy to deprive
him of his civil rights (counts seven and eight) and failure to prevent a conspiracy (count nine). Doc. 23
at 11–12. The Court dismisses these claims without prejudice and does not further address them in this
Opinion.
notice of his claim for an illegal search of his vehicle, allowing him to proceed with his Fourth
Amendment claim as well as with his claim for unlawful retaliation. Because a § 1983 policies
and practices claim against the City can proceed based only on Hudson’s own experiences, that
claim proceeds as well. But the Court agrees with Defendants that Hudson’s false arrest and due
process claims fail at the pleading stage, and that the replevin claim is time-barred. The Court
cannot determine, at this time, that the statute of limitations bars the request for a permanent
injunction, however, where Hudson bases that claim in both state and federal law.
BACKGROUND2
On the evening of March 6, 2016, the Defendant Officers stopped Hudson while he was
driving his 2003 Buick LeSabre. At the time of the stop, Hudson did not know of any warrants
for his arrest, and he did not believe he had engaged in any criminal activity. After Hudson
pulled over, the Defendant Officers approached his car and stood at the driver’s side window, the
passenger side window, and the trunk of the car. Hudson asked about the reason for the stop,
and the officer at his window told him he had a broken tail light. Hudson indicated he would get
the light repaired. The officer then ordered Hudson out of the car, at which point Hudson asked
for a reason. He had not yet been asked for any identification. Without responding to Hudson’s
question as to why he was being ordered out of the car, the officer on the driver’s side of the
vehicle, who Hudson believes to be Zettergren, yelled, “[g]et the f*** out of the vehicle now Mr.
Hudson!” while holding his service weapon. Doc. 16 at ¶ 46. The traffic stop on March 6, 2016
was not Hudson’s first interaction with officers of the Joliet police department, with Hudson
having previously settled a civil rights lawsuit he brought against the City and various police
2
The facts in the background section are taken from Hudson’s first amended complaint and are presumed
true for the purpose of resolving Defendants’ motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 782
(7th Cir. 2007).
2
officers stemming from a 2011 traffic stop. Hudson believes that the Defendant Officers knew
his identity, presumably from prior arrests, because they addressed him by name before
requesting any identification from him.
Hudson immediately obeyed the officer’s command, stepping out of his car. The officer
who had stood at the trunk of Hudson’s car sat down in the driver’s seat and began searching the
vehicle. The officer standing on the passenger side removed the passenger from the car and then
searched the car’s trunk. Hudson protested the search, with the officer Hudson believes to be
Liebermann responding “Shut the f*** up!” Id. ¶ 69. The Defendant Officers found a sealed
bottle of alcohol in the armrest and decided to tow the car. The Defendant Officers gave Hudson
two citations. When Hudson asked if he could retrieve personal items from the car before the
tow truck arrived, two of the Defendant Officers threatened him with arrest if he did not leave.
On or about March 8, 2016, Hudson filed a citizen’s complaint with the Joliet police
department regarding the incident. While filing the complaint, he asked the desk personnel about
the process of regaining possession of his car and the individual at the desk told Hudson that he
should return after winning his case.
In late spring of 2016, the Illinois circuit court found that no probable cause existed for
the March 6, 2016 searches and dismissed all charges against Hudson related to the traffic stop.
While he was in court, Hudson asked the prosecuting attorney how he could retrieve his car, and
the prosecutor told him that he should contact the Joliet police department. When Hudson
thereafter contacted the Joliet police department, he learned that he owed fines and costs to the
Joliet police department. Hudson remains unable to recover his vehicle and the personal
property inside it as a result of the claimed fees.
3
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (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.” Iqbal, 556 U.S. at 678.
ANALYSIS
I.
Illegal Search and Seizure (Count Two)
The Court first addresses Hudson’s illegal search and seizure claim. The exact contours
of the claim appear rather broad from the first amended complaint. The Defendant Officers
argue that they had probable cause to stop Hudson for a tail light violation and so his entire claim
fails. See United States v. Miranda-Sotolongo, 827 F.3d 663, 666 (7th Cir. 2016) (“A traffic stop
is reasonable when the officer has reasonable suspicion that criminal activity is afoot, which can
extend to violations of traffic laws[.]”). Hudson does not contest that he has not pleaded that the
officers did not have reasonable suspicion concerning whether the tail light was actually out,
instead focusing on the subsequent search of the vehicle. Defendants acknowledge that a search
subsequent to a legitimate stop could violate the Fourth Amendment, depending on the
4
circumstances. But they argue that, at best, Hudson’s pleading leaves ambiguous the exact
contours of his illegal search claim. Although as currently pleaded, the Court will only allow
Hudson to proceed on his Fourth Amendment claim with respect to the search of his car, the
Court does not find it necessary for Hudson to replead the claim. His first amended complaint
sufficiently provides the Defendant Officers with notice of his claim against them: that they
conducted a search of the vehicle without a warrant and that no exception to the warrant
requirement existed to justify that search. The Court can only determine whether Hudson can
prevail on this theory upon a more fully developed record and therefore declines to delve into the
more factual arguments regarding the search raised by the parties at this time.
II.
Retaliation (Count One)
Hudson’s retaliation claim is premised on the fact that the Defendant Officers undertook
the traffic stop and subsequent search and seizure of his vehicle in retaliation for Hudson’s prior
interactions with the City and its officers, including the prior lawsuit Hudson had filed accusing
the Joliet police of illegal searches and police misconduct. Defendants argue that because
Hudson has not adequately alleged a Fourth Amendment violation—with the retaliation claim
dependent on a finding that the traffic stop was unlawful—his retaliation claim fails as well. The
Supreme Court recently decided a case concerning whether a claim for retaliatory arrest could
proceed despite the existence of probable cause to arrest. Lozman v. City of Riviera Beach, Fla.,
--- U.S. ----, 138 S. Ct. 1945 (2018). In Lozman, the Court narrowly decided the issue, finding a
retaliatory arrest suit could proceed where the plaintiff alleged an official policy of retaliation
“bearing little relation to the criminal offense for which the arrest is made,” while noting that the
“Court need not, and does not, address the elements required to prove a retaliatory arrest claim in
other contexts.” Id. at 1954–55. That the standard for a case such as that here remains unsettled
5
does not matter for purposes of deciding the motion to dismiss, however, for the Court has found
that at this stage, Hudson’s allegations sufficiently set forth a Fourth Amendment violation with
respect to the search of the car. Therefore, Hudson may proceed on a retaliation claim in which
he contends that the Defendant Officers engaged in a retaliatory search based on his prior
speech.3
III.
Monell Policy and Practices (Count Three)
Hudson seeks to hold the City and Benton, its Police Chief, responsible for the allegedly
illegal search and seizure of his vehicle, contending that the City adopted and implemented
careless and reckless policies, customs, or practices that include allowing officers to search
drivers without probable cause. The City and Benton argue that the Court should dismiss this
claim because it consists merely of Hudson’s personal experiences, which cannot support a
policy or practice claim under Monell v. Department of Social Services of the City of New York,
436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). A plaintiff may base Monell liability on
(1) an express policy that, when enforced, causes a constitutional violation; (2) a widespread
practice that, although not authorized by written law or express municipal policy, is so
permanent and well-settled as to constitute a custom or usage with the force of law; or (3) a
constitutional injury caused by a person with final policymaking authority. McCormick v. City of
Chicago, 230 F.3d 319, 324 (7th Cir. 2000). The policy or practice “must be the direct cause or
moving force behind the constitutional violation.” Woodward v. Corr. Med. Servs. of Ill., Inc.,
368 F.3d 917, 927 (7th Cir. 2004) (citation omitted) (internal quotation marks omitted). Hudson
3
For this reason, the Court need not address whether qualified immunity protects the Defendant Officers
from this claim, especially where their argument in support of dismissal on this basis is conclusory at
best. It is more appropriate for the Court to address these questions in a summary judgment motion.
6
appears to pursue a claim under the second prong.4 To adequately allege a Monell widespread
practice claim, Hudson must “plead[ ] factual content that allows the Court to draw the
reasonable inference that the [City] maintained a policy, custom or practice” that contributed to
the alleged violation. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (internal
quotation marks omitted).
The City and Benton’s only argument for dismissal of the Monell claim is that Hudson
merely relies on his own experience, which cannot establish a widespread practice.5 But
recently, the Seventh Circuit has reminded courts not to apply a “heightened pleading standard”
to Monell claims. White v. City of Chicago, 829 F.3d 837, 844 (7th Cir. 2016) (quoting
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164,
113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993)). This means that a plaintiff need not identify other
examples of the complained of practice to state a Monell claim but rather may rely solely on his
own experience. See id. at 844 (noting that plaintiff “was not required to identify every other or
even one other individual who had been arrested pursuant to a warrant obtained through the
complained-of process”); Williams v. City of Chicago, No. 16-cv-8271, 2017 WL 3169065, at
*8–9 (N.D. Ill. July 26, 2017) (“Post-White courts analyzing Monell claims . . . have ‘scotched
motions to dismiss’ premised on arguments that the complaint does not contain allegations
beyond those relating to the plaintiff.” (collecting cases)). Although Hudson only offers his own
4
Although Hudson includes allegations concerning Benton, the chief of police, he does not include
allegations that Benton has final policymaking authority or appear to pursue this prong for purposes of
establishing his Monell claim either in his first amended complaint or response to the motion to dismiss.
5
The City and Benton also argue that the Court should dismiss the Monell claim to the extent that none of
Hudson’s individual claims survive. The Court allows at least some of Hudson’s individual § 1983
claims to proceed, but even if it did not, this would not warrant automatic dismissal of Hudson’s Monell
claim. See Miranda v. County of Lake, --- F.3d ----, 2018 WL 3796482, at *3 (7th Cir. Aug. 10, 2018)
(“Monell liability is possible even if no individual official is found deliberately indifferent.”).
7
experience of being searched and dispossessed of his vehicle and personal belongings, this alone
does not prevent him from pursuing a Monell claim. See Barwicks v. Dart, No. 14-cv-8791,
2016 WL 3418570, at *4 (N.D. Ill. June 22, 2016) (at summary judgment, a single incident
cannot establish a Monell claim, but at the motion to dismiss stage, a plaintiff “need only allege a
pattern or practice, not put forth the full panoply of evidence from which a reasonable factfinder
could conclude such a pattern exists”). Discovery will uncover whether Hudson can establish or
prove his claim.
IV.
False Arrest (Count Four)
The Defendant Officers also move to dismiss Hudson’s false arrest claim, arguing that
because they never arrested Hudson, he cannot make out any such claim or, even assuming an
arrest occurred, that because probable cause existed for the traffic stop, they had justification to
stop and arrest him. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 679–80 (7th Cir.
2007) (“If the officer had probable cause to believe that the person he arrested was involved in
criminal activity, then a Fourth Amendment claim for false arrest is foreclosed.”). Hudson
acknowledges that his tail light did not work and he was not actually placed under arrest.
Instead, he claims that the Defendant Officers effectively arrested him because he did not feel
free to leave after the Defendant Officers stopped him and began searching the vehicle. Hudson
correctly points out that an arrest occurs when, “in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he was not free to leave.” United
States v. Tyler, 512 F.3d 405, 409–10 (7th Cir. 2008) (quoting Michigan v. Chesternut, 486 U.S.
567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988)). Although such an inquiry is highly factintensive, id., the Court need not engage in it here because the existence of probable cause for the
8
traffic stop defeats any claim for false arrest, Holmes, 511 F.3d at 679–80. The Court therefore
dismisses Hudson’s claim for false arrest.
V.
Due Process (Count Five)
Hudson’s due process claim amounts to an allegation that the City, through the Defendant
Officers and Benton, deprived him of due process by refusing to return his car absent Hudson’s
payment of substantial charges and fines. Defendants argue that this claim fails because Hudson
did not pursue available state law remedies. Because Hudson’s due process claim challenges
actions that are “random and unauthorized,” the state need only provide adequate postdeprivation remedies for the subsequent deprivation of property. See Hudson v. Palmer, 468
U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (“[A]n unauthorized intentional
deprivation of property by a state employee does not constitute a violation of procedural
requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.”); Easter House v. Felder, 910 F.2d 1387,
1404–05 (7th Cir. 1990). Defendants argue that Hudson had several post-deprivation remedies
available, meaning that he cannot now pursue a federal due process claim. Although “a plaintiff
is not required to exhaust state remedies to bring a § 1983 claim, this does not change the fact
that no due process violation has occurred when adequate state remedies exist.” Veterans Legal
Defense Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003). Although in his response, Hudson
suggests that the City’s appeal process was not available, his reliance on the transcripts attached
to his response for this proposition does not support such a conclusion. Nor can the Court
conclude that Hudson could not avail himself of the state law procedures for replevin based on
the allegations of Hudson’s first amended complaint or response. See Gable v. City of Chicago,
296 F.3d 531, 540 (7th Cir. 2002) (noting that bailment or replevin actions may have been
9
available to plaintiffs whose cars had been impounded). Because Hudson must have included
more than just a statement that the state law remedies are futile to allow his federal due process
claim to proceed, the Court dismisses Hudson’s due process claim. See Kauth v. Hartford Ins.
Co. of Ill., 852 F.2d 951, 955 (7th Cir. 1988) (collecting cases finding that to state a due process
claim, a complaint must challenge the available state remedies as inadequate).
VI.
Replevin and Permanent Injunction (Counts Six and Ten)
Defendants move to dismiss Hudson’s state law claim for replevin (count six) and his
claim for a permanent injunction against the City for its alleged unconstitutional towing practices
(count ten), arguing that these claims are time-barred. The statute of limitations is an affirmative
defense that Hudson need not anticipate in his complaint in order to survive a motion to dismiss.
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). But that is not the case where “the
allegations of the complaint itself set forth everything necessary to satisfy the affirmative
defense, such as when a complaint reveals that an action is untimely under the governing statute
of limitations.” Id.; see also Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (considering
statute of limitations defense on motion to dismiss where relevant dates were set forth in the
complaint).
Here, Hudson’s replevin claim is subject to a one-year statute of limitations. See 745 Ill.
Comp. Stat. 10/8-101(a) (setting forth statute of limitations for civil tort claims against local
government entities and their employees). Hudson does not materially address the statute of
limitations argument, only arguing that the Court should leave it for a later date. But his claim
for replevin accrued no later than Spring 2016, when the court dismissed Hudson’s citations
related to the towing of his car and he then had the right to demand the return of his car. See
Gates v. Towery, 435 F. Supp. 2d 794, 800 (N.D. Ill. 2006) (finding that plaintiff’s replevin and
10
conversion claims accrued when his trial concluded and he was first able to demand the return of
his property, at which time defendants’ possession of that property became unlawful). Hudson
filed his initial complaint on October 17, 2017, more than a year after the statute of limitations
ran on this claim. Thus, the Court dismisses the replevin claim as time-barred.
But the Court cannot at this stage come to the same conclusion with respect to Hudson’s
request for a permanent injunction against the City for its allegedly unconstitutional towing
practices. Defendants treat this claim only as a state law claim subject to the same one-year
statute of limitations as the replevin claim, but Hudson claims that the towing practices violate
not only the Illinois Constitution but also federal due process and equal protection.6 The alleged
federal violations are subject to a two-year statute of limitations. See Gen. Auto Serv. Station v.
City of Chicago, No. 00 C 0368, 2004 WL 442636, at *6–7 (N.D. Ill. Mar. 9, 2004) (applying
two-year statute of limitations to § 1983 actions seeking both legal and equitable relief). And
Hudson contends that the City has continuously violated his rights in enforcing the towing
ordinance. Although the Court at this stage makes no determination with respect to whether
Hudson can establish a continuing violation, because he has at least stated a timely basis to
support a permanent injunction through a § 1983 violation, the Court will not dismiss his request
for a permanent injunction based on the statute of limitations.
6
In their reply, Defendants state that if the state law portion of the claim based on the Illinois constitution
fails, the request for an injunction cannot stand, but they provide no explanation or citation for why this is
the case. Defendants have waived this new and undeveloped argument. See Dexia Credit Local v.
Rogan, 629 F.3d 612, 625 (7th Cir. 2010) (“[A]rguments raised for the first time in a reply brief are
waived.”); United States v. Elst, 579 F.3d 740, 747 (7th Cir. 2009) (“Perfunctory and undeveloped
arguments as well as arguments unsupported by pertinent authority are waived.”).
11
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion
to dismiss [18]. The Court dismisses the false arrest (count four), due process (count five),
conspiracy (counts seven and eight), and failure to act to prevent conspiracy (count nine) claims
without prejudice. The Court dismisses the replevin claim (count six) with prejudice.
Dated: September 4, 2018
______________________
SARA L. ELLIS
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?