Fix v. City of Chicago et al
MEMORANDUM Opinion and Order: The Court grants in part and denies in part defendants' partial motions to dismiss plaintiffs' Monell claims [44, 30]. Signed by the Honorable Sharon Johnson Coleman on 1/10/2022. Mailed notice. (ym, )
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 21-cv-2843
Judge Sharon Johnson Coleman
THE CITY OF CHICAGO, et al.,
Case No. 21-cv-2846
Judge Sharon Johnson Coleman
THE CITY OF CHICAGO, et al.,
MEMORANDUM OPINION AND ORDER
In their amended complaints, plaintiffs John Fix and Gabriel Chinchilla bring numerous
constitutional claims against the City of Chicago and certain Chicago Police Officers alleging that the
police assaulted and beat them while they were attending a peaceful protest in the wake of George
Floyd’s murder in May 2020. See 42 U.S.C. § 1983. Relevant to this motion are plaintiffs’
widespread policy and practice claims brought pursuant to Monell v. Department of Social Services of City
of New York, 436 U.S. 658 (1978). Before the Court are the City’s motions to dismiss plaintiffs’
Monell claims under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court
grants in part and denies in part the City’s motions.
Plaintiffs allege that in the wake of the police killings of George Floyd, Breonna Taylor, and
others, Chicago residents peacefully protested in downtown Chicago over the weekend of May 29-
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31, 2020. On the evening of May 31, 2020, plaintiff Fix joined a peaceful protest in the River North
neighborhood of Chicago to express his opinion that the police must be held accountable to the
communities they serve and to express his support for victims of police violence. When Fix was
south of the Hubbard and Clark Street intersection, he observed a man lying on the sidewalk
surrounded by police. When Fix attempted to assist him, police officers shoved and knocked Fix to
the ground, after which they beat him repeatedly about his head and body with riot batons. The
police officers continued to beat Fix while he was lying on the ground in a prone position. Fix has
images of his beating from security cameras from nearby businesses.
Similarly, plaintiff Chinchilla alleges that on May 31, 2020, he joined peaceful protests in the
River North area. He was also protesting for police accountability and to support victims of police
violence. When he attempted to assist the man discussed above, police officers, many of whom
were dressed in full riot gear, shoved Chinchilla from behind and knocked him to the ground. The
police officers then beat him repeatedly about his head and body with riot batons. Chinchilla has
video and still photos of his beating taken from security cameras. A video of his beating was
broadcast on ABC 7 news that evening.
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 L.Ed.2d
233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion to dismiss,
the plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible when
the plaintiff alleges enough “factual content that allows the court to draw the reasonable inference
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that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009).
“[T]o prevail on a § 1983 claim against a municipality under Monell, a plaintiff must challenge
conduct that is properly attributable to the municipality itself.” First Midwest Bank Guardian of Estate
of LaPorta v. City of Chicago, 988 F.3d 978, 986 (7th Cir. 2021). A plaintiff may demonstrate municipal
liability by showing that the constitutional deprivation was caused by: (1) an express municipal
policy; (2) a de facto widespread custom or practice; or (3) a decision by a municipal agent, who had
final policymaking authority. Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 765 (7th Cir. 2021).
In addition, plaintiffs must show that the City’s action was the “moving force” behind their
constitutional deprivations (causation) and the City was “deliberately indifferent” (culpability) to
plaintiffs’ constitutional rights. LaPorta, 988 F.3d at 986-87.
In their amended complaints, plaintiffs allege that the City has a de facto municipal policy and
widespread practice of using unnecessary force and covering up the use of excessive force that
caused plaintiffs’ constitutional injuries. They explain that the City’s de facto policy involves police
officers instigating false criminal charges against individuals to create false narratives justifying the
use of excessive force.
The City first argues that plaintiffs have failed to sufficiently allege the “widespread
practice” element under the federal pleading standards. The Court notes, however, that even after
Iqbal and Twombly, “it is manifestly inappropriate for a district court to demand that complaints
contain all legal elements (or factors) plus facts corresponding to each.” Chapman v. Yellow Cab
Cooperative, 875 F.3d 846, 848 (7th Cir. 2017). As Judge Easterbrook explained in Chapman, “it is
enough to plead a plausible claim, after which a plaintiff ‘receives the benefit of imagination, so long
as the hypotheses are consistent with the complaint.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted)). Furthermore, there is “no
heightened pleading rule [that] requires plaintiffs seeking damages for violations of constitutional
rights to invoke § 1983 expressly in order to state a claim.” Johnson v. City of Shelby, Miss., 574 U.S. 10,
11, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014).
A widespread practice may be established in several ways, including “a prior pattern of
similar constitutional violations.” Fields v. City of Chicago, 981 F.3d 534, 562 (7th Cir. 2020). The
purpose of setting forth a pattern of similar constitutional violations is to show that the City had
notice of the widespread practice that would, in turn, give the City an opportunity to remedy the
situation. See id.; Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010). In their
amended complaints, plaintiffs have alleged a pattern of similar incidents of Chicago Police Officers’
unconstitutional use of excessive force and cover-up both within the context of protests and
otherwise. These similar incidents are discussed in the Consent Decree in Illinois v. City of Chicago,
No. 17-cv-6290, 2019 WL 398703, at *1 (N.D. Ill. Jan. 31, 2019) (Dow, J.), which addressed the
Chicago Police Department’s (“CPD”) repeated pattern of using excessive force. Other similar
incidents are noted in the United States Department of Justice’s (“DOJ”) official report,
“Investigation of the Chicago Police Department,” published on January 13, 2017, which concluded
that “[o]ne way to cover up police misconduct is when officers affirmatively lie about it or
intentionally omit material facts.” Plaintiffs further rely upon the 2016 Chicago Police
Accountability Task Force Recommendations for Reform (“PATF” report). To give context, in
December 2015, former Mayor Rahm Emanuel created a task force to review the Chicago Police
Department’s systems of accountability, oversight, and training that were in place at that time. Both
the DOJ and PATF reports discuss the inadequacy of investigation, discipline, and supervision of
Plaintiffs also highlight Chicago Police Officers’ prior use of excessive force in the context
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of protests and demonstrations, including protests against the Iraq war in 2003, anti-immigration
protests in 2011, and anti-Trump protests in 2016. In addition, plaintiffs provide support for their
widespread practice claim based on the same May 2020 demonstrations where Michael Drake, a legal
observer, was beaten by Chicago Police Officers and arrested. Furthermore, the Court takes judicial
notice that the City of Chicago Office of Inspector General filed a report on February 18, 2021
criticizing the CPD’s use of force during the May 2020 demonstrations.
Read as a whole, plaintiffs’ amended complaints plausibly allege that the City was on notice
of a widespread practice of Chicago Police Officers using excessive force and the resultant cover-up.
See Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief” is “a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.”). Plaintiffs have alleged factual details concerning not only the excessive force
they experienced, but also the CPD’s historic failures in this respect, raising an inference that they
are not alone in suffering constitutional injuries resulting from the City’s widespread practice. In
sum, plaintiffs’ allegations contain more than isolated incidents of similar police misconduct.
Next, the City maintains that plaintiffs have failed to adequately allege the “deliberate
indifference” or culpability element of their Monell claim. “A municipality has the requisite degree of
culpability if it acts with deliberate indifference to the known or obvious consequences of its
action.” Levy v. Marion County Sheriff, 940 F.3d 1002, 1010 (7th Cir. 2019). To show deliberate
indifference, a municipality must be aware of the risk created by the unlawful widespread custom or
practice and fail to take appropriate steps protect plaintiffs. Thomas, 604 F.3d at 303.
Here, the City asserts that it has taken actions to protect plaintiffs, including the
establishment of the Civilian Office of Police Accountability (“COPA”) in 2016, which replaced the
City’s Independent Police Review Authority (“IPRA”). The City’s argument seeks to refute
plaintiffs’ allegations instead of challenging their sufficiency. It is well-settled that a “defendant
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cannot, in presenting its 12(b)(6) challenge, attempt to refute the complaint or to present a different
set of allegations” because “[t]he attack is on the sufficiency of the complaint, and the defendant
cannot set or alter the terms of the dispute, but must demonstrate that the plaintiff’s claim, as set
forth by the complaint, is without legal consequence.” Smith v. Burge, 222 F.Supp.3d 669, 691 (N.D.
Ill. 2016) (St. Eve, J.) (citation omitted). In any event, plaintiffs allege that they reported their
beatings to COPA and that COPA has failed to maintain any communication with them.
Meanwhile, plaintiffs have set forth sufficiently detailed facts that the City’s policymakers
were aware of Chicago Police Officers using excessive force based on their allegations of the
unlawful widespread practice discussed above. Because Chicago Police Officers have continued to
use excessive force, even after the City’s efforts to remedy the situation, there is a reasonable
inference that the City’s actions to combat this unlawful conduct have been inadequate. Although
plaintiffs did not specifically name a final policymaker for the City who was aware of the widespread
practice and failed to act, this omission does not make their allegations implausible as the City
argues, especially because the parties have yet to take discovery.
Keeping in mind that plaintiffs need not allege legal elements and facts that correspond to
each element, see Chapman, 875 F.3d at 848, the City next argues that plaintiffs have not adequately
alleged the “moving force” or causation element of their claims. In making this argument, the City
fails to look at plaintiffs’ allegations as a whole, in which plaintiffs allege that the CPD’s code of
silence shields and protects police officers allowing them to shape false narratives of their use of
excessive force. Plaintiffs’ allegations and reasonable inferences suggest that this widespread
practice allows Chicago Police Officers to engage in unlawful conduct without facing consequences.
Construing the facts in plaintiffs’ favor, because they have plausibly alleged that the widespread
practice allows the officers to engage in excessive force with impunity, they have sufficiently alleged
that the practice was the moving force behind the constitutional violations they suffered. See, e.g.,
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Johnson v. City of Chicago, No. 20 C 7222, 2021 WL 4438414, at *6 (N.D. Ill. Sept. 28, 2021) (Ellis, J.);
Ferguson v. Cook County, Illinois, No. 20-cv-4046, 2021 WL 3115207, at *12 (N.D. Ill. July 22, 2021)
Last, the City contends that plaintiffs failed to provide any factual specificity to support their
failure to train claim. See Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011).
Although plaintiffs mention former cases involving failure to train allegations, their allegations
concerning their own failure to train claims are cursory, at best. See Ruiz-Cortez v. City of Chicago, 931
F.3d 592, 599 (7th Cir. 2019) (“Municipal failure claims are  available only in ‘limited
circumstances.’”) (internal citation omitted). Equally important, plaintiffs failed to respond to the
City’s argument resulting in the abandonment of this claim. See Alioto v. Town of Lisbon, 651 F.3d
715, 721 (7th Cir. 2011). The Court grants the City’s motion in this respect.
For these reasons, the Court grants in part and denies in part defendants’ partial motions to
dismiss plaintiffs’ Monell claims [44, 30].
IT IS SO ORDERED.
SHARON JOHNSON COLEMAN
United States District Judge
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