Brickhouse et al v. Redstone et al

Filing 37

ORDER denying 15 MOTION to Dismiss for Failure to State a Claim filed by Richard Dawes, 16 MOTION to Dismiss for Failure to State a Claim filed by John Redstone, and 26 MOTION to Strike 20 Response in Opposition to Motion to Dismiss for Failure to State a Claim filed by John Redstone and Richard Dawes. Plaintiffs' standing brief is due by 12/13/2012. Signed by Chief Judge David R. Herndon on 11/29/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALEXANDER BRICKHOUSE, et al.
Plaintiffs,
vs.
JOHN REDSTONE, et al.,
Defendants.

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)
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) Case No. 12-593-DRH-PMF
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ORDER

HERNDON, Chief Judge:
This case involves an action for money damages brought pursuant to 42 U.S.C.
§ 1983 by a mother and her son against a municipality, two of its police officers,
individually and in their official capacities, and other unnamed police officers, in
their individual and official capacities, after one of the named officers allegedly
removed the son from the mother’s vehicle, took him into the police station, and beat
him after overhearing the mother filing a complaint against the two named officers.1
The two named officers, defendants Richard Dawes and John Redstone (collectively
“defendants” for purposes of this order), filed motions to dismiss (Docs. 15 & 16),
seeking dismissal of all claims brought against them by plaintiffs Alexander
Brickhouse, the son, and Avianne Lee Khalil, Brickhouse’s mother. Several of those

1

The Court notes that plaintiffs have yet to name the unnamed officers, but
that discovery is not set to conclude until April 1, 2013. Plaintiffs have until April
1, 2013, to name the unnamed officers or the Court will dismiss those parties at
that time. See FED. R. CIV. P. 21 (“On motion or on its own, the court may at any
time, on just terms, add or drop a party.”).
Page 1 of 19

claims, specifically counts IV through IX, have already been dismissed due to
plaintiffs’ failure to timely respond to defendants’ subsequent motion to dismiss
counts IV through IX (Doc. 32). Thus, only counts I and II remain against defendants
as count III was not directed against them. For the reasons that follow, defendants’
motions to dismiss (Docs. 15 & 16) are denied.
I. Background
On May 8, 2012, plaintiffs filed a nine-count complaint against defendants, the
City of Granite City, and John Doe officers I-XXX, alleging the facts below. The Court
notes that at this point it takes the facts alleged as true but not legal conclusions or
conclusory allegations that merely recite a claim’s elements. See Munson v. Gaetz,
673 F.3d 630, 632-33 (7th Cir. 2012) (citing McCauley v. City of Chi., 671 F.3d 611
(7th Cir. 2011)).
On approximately May 9, 2010, Brickhouse was involved in a motor vehicle
collision which resulted in him being transported from the scene of the incident to
Granite City Hospital via an ambulance. Brickhouse was not cited for any violations
of the law at the scene of the accident.
Upon admission to the hospital and during Brickhouse’s medical examination,
he was observed as sustaining no physical contusions or abrasions or any significant
or notable injuries as a result of the collision. Brickhouse was discharged from the
hospital in the early afternoon of May 9, 2010, with a minor mark from the
deployment of the airbag.
Soon after Brickhouse was admitted to the hospital, his mother arrived to
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check on her son. Upon arrival to her son’s room, she noticed two Granite City
police officers, officers Redstone and Dawes, in the room, questioning her son. The
two officers questioned Brickhouse regarding the incident and they issued him a
citation for the following violations: 1) failing to yield on a green light; 2) failing to
avoid the accident; 3) failure to wear a seat belt; and 4) failure to have insurance.
The officers continued to question Brickhouse, despite the fact that he was in a
hospital bed, allegedly scared and confused.
Brickhouse’s mother began to feel uncomfortable with the officers’ tactics and
interjected, telling the officers to stop questioning her son and directing her son to
stop answering their questions until an attorney could assist him. The two officers
told Brickhouse’s mother that it was none of her business and that Brickhouse was
an eighteen year old adult. Brickhouse’s mother told them that he was still in high
school and as her son she had a right to advise him. The officers then threatened to
arrest Brickhouse’s mother. Brickhouse’s mother ignored their threats and told
them to leave. As the officers began to leave, officer Redstone said “stupid Muslim
bitch.” Brickhouse’s mother responded that she would complain about his language.
Redstone uttered more expletives and took on an aggressive posture. Brickhouse’s
mother backed up and went to her son’s bed.
Upon Brickhouse’s release from the hospital, Brickhouse’s mother decided to
immediately go to the police station to file a complaint against the officers for their
conduct, offensive and abusive statements, and to protest the alleged unjustified
citations issued to her son. When Brickhouse’s mother went inside to file the
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complaint, Brickhouse remained in the car. Brickhouse’s mother went to the front
desk which was occupied by a desk sergeant, John Doe #1. Brickhouse’s mother
told the desk sergeant that she wanted to file a complaint about officers Redstone
and Dawes. Brickhouse’s mother was overheard by Redstone who happened to be
present in the station in a room behind the front desk. Redstone stepped out of the
room and saw Brickhouse’s mother. He then walked outside to where Brickhouse’s
mother’s vehicle was parked.
Once outside, Redstone banged on the window of the car to get Brickhouse’s
attention who was sitting in the vehicle listening to music on his Ipod. When
Brickhouse opened the door, Redstone pulled the boy from the vehicle and threw
him against the car. Redstone allegedly rough handled him out of the car and threw
him against the side saying “your bitch mother isn’t going to cause me to lose my job”
or other similar words. Redstone proceeded to slam the boy against the car, pulled
his arms back, and handcuffed him, tightening the cuffs excessively as he did so.
Redstone then forcefully dragged and pushed Brickhouse into the station in front of
his mother. He took him to a metal door that separates the holding cells from the
outer reception area and when they arrived at the door, Redstone slammed
Brickhouse’s head into the metal door.
Redstone continued to the holding cell where he again slammed Brickhouse’s
head against the metal cell bars. Brickhouse fell to the floor into a fetal like position
to protect his body and limit further abuse. Redstone then kicked Brickhouse in the
ribs and other parts of his body, as Brickhouse screamed and pleaded for him to
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stop. Redstone then lifted Brickhouse using the handcuffs, causing Brickhouse’s
arms to pull back in an unnatural manner and resulting in severe pain in his
shoulders. The pain caused him to scream in agony. Redstone then searched
Brickhouse and once done, he uncuffed him and locked him in the cell. Brickhouse
suffered lacerations, contusions, and bruises to his hands and body.
Brickhouse’s mother watched in terror and allegedly experienced severe
emotional distress as Redstone dragged her teenage son into the station and then
slammed his head against the metal door. She could not offer any assistance or
intercede to defend him. As she heard his screams, she pleaded with the desk
sergeant, John Doe #1 and either Dawes or John Doe #2, to please stop Redstone
from assaulting her son. Either John Doe #1, John Doe #2, or Dawes looked at the
other and stated “I don’t hear anything, do you?”
After placing Brickhouse in the jail cell, Redstone emerged from the back.
Crying, Brickhouse’s mother demanded to know what he did to her son and why he
arrested him. Redstone replied it was because you “had to be a stupid bitch” or
“Muslim bitch” or similar language and words that were equally offensive and
insulting.
Brickhouse’s mother left the police station and immediately called her former
husband, Brickhouse’s father, Earl Brickhouse. She explained to him what had
happened and Brickhouse’s father went to the police station to secure the release of
his son. At the police station, Brickhouse’s father was told that he would have to
post a bond for his son, which he did.
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Upon release from the police station, Brickhouse’s father and his current wife
immediately went to Christian Hospital Northeast to seek medical attention and
treatment for the injuries suffered by Brickhouse. Brickhouse was admitted to the
hospital and examined by a number of medical professionals. Brickhouse
complained of pain in his chest, face, and ribs. Brickhouse was observed as having
lacerations and abrasions to the left and right wrists where he was handcuffed by
Redstone, as well as various other lacerations, scratches, and contusions to his body.
Brickhouse suffered contusions to the chest wall, contusions to the face, and
abrasions to the right forearm.
On May 11, 2010, Brickhouse’s father went to the police station to pursue the
matter further. He received a police report stating the Brickhouse was arrested at
the scene of the accident.
Based upon these alleged facts, on May 8, 2012, plaintiffs brought a nine count
complaint, alleging the following counts: 1) unconstitutional use of excessive force
pursuant to § 1983 against Redstone and the John Does; 2) lawful and unreasonable
seizure in violation of § 1983 against Redstone, Dawes, and John Doe #1; 3) failure
to intervene in violation of § 1983 against the City of Granite City and defendant
police officers; 4) Illinois common law civil conspiracy and concert of action against
the City of Granite City, the Granite City police department, Redstone, and John
Does; 5) assault against Redstone, Dawes, and John Doe #1; 6) battery against
Redsone, Dawes, and John Doe #1; 7) intentional/reckless infliction of emotional
distress against Redstone, Dawes, and John Doe #1; 8) negligent infliction of
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emotional distress against Redstone, Dawes, and John Doe #1; and 9) false
imprisonment against Redstone, Dawes, and John Doe #1. On June 8, 2012, the
City of Granite City filed its answer to the complaint. (Doc. 6). On July 5, 2012,
defendants Dawes and Redstone filed separate motions to dismiss (Docs. 15 & 16)
but filed a joint memorandum in support of those motions (Doc. 17). On August 8,
2012, plaintiffs filed a response to the motions to dismiss (Doc. 20).
On August 9, 2012, the City of Granite City filed a motion to dismiss count IV
(Doc. 21) along with a memorandum in support thereof (Doc. 22). On August 28,
2012, defendants Dawes and Redstone filed a motion to strike plaintiffs’ response
to their motions to dismiss (Doc. 26), contending that the response was untimely
because it was not filed within thirty days as required by the local rules and because
there is not adequate citations to relevant authority or to the record. On August 29,
2012, defendants Dawes and Redstone filed a subsequent motion to dismiss (Doc.
27), seeking dismissal of counts IV through IX. On September 17, 2012, plaintiffs
filed a consent motion for an extension of time to respond to defendants Dawes and
Redstone’s motion to dismiss counts IV through IX (Doc. 29), asking for an extension
until October 1, 2012, when plaintiffs’ response to the City of Granite City’s motion
to dismiss count IX was due. The Court granted that motion, but plaintiffs failed to
file responses to either the City of Granite City’s motion to dismiss count IV or
defendants Dawes and Redstone’s motion to dismiss counts IV through IX.
Accordingly, on October 2, 2012, the Court granted defendant the City of Granite
City’s motion to dismiss count IV and defendants Redstone and Dawes’ motion to
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dismiss counts IV through IX on the basis that plaintiffs’ failure to timely respond
was an admission on the merits of the motions as provided in Local Rule 7.1(c) of
the United States District Court for the Southern District of Illinois. (Doc. 32).
As to defendants’ motion to strike plaintiffs’ response, that motion is
denied. Defendants filed their motions to dismiss on July 5, 2012. When
defendants filed their motions electronically, the case management (“CM”)
electronic case filing (“ECF”) system (“CM/ECF”) generated a response date of
August 9, 2012. Plaintiffs filed their response (Doc. 20) on August 8, 2012, a day
before the response was due. Thus, as explained below, plaintiff’s response was
timely and defendants’ motion to strike is denied.
Under the local rules, plaintiffs had thirty days, plus an extra three days
because it was filed electronically, to file its response. See SDIL-LR 7.1(c); SDILLR 5.1(c). Federal Rule of Civil Procedure Rule 6 instructs the Court on how to
compute time with regard to motions. See FED. R. CIV. P. 6. That rule states that
when the time period is stated in days, you exclude the day of the event that
triggers the period, count every day, including intermediate Saturdays, Sundays,
and legal holidays, and include the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday. Id. at 6(a)(1). “When
a party may or must act within a specified time after service and service is made
under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would
otherwise expire under Rule 6(a).” Id. at (d).
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Here, the motion to dismiss was filed on July 5, 2012. Thirty days from
July 5, 2012, excluding July 5, 2012, and counting every day including the last
day of the period, results in a date of Saturday, August 4, 2012. Thus, because
the last day was a Saturday, the period continued to run until Monday, August 6,
2012. Because service was made under Rule 5(b)(2)(E), by electronic means,
three days were added to Monday, August 6, 2012, resulting in a response
deadline of Thursday, August 9, 2012, as CM/ECF indicated. Thus, plaintiffs’
response was timely.
Lastly, Dawes and Redstone ask the Court to strike the response because
there is not adequate citations to relevant authority or to the record. The Court
disagrees. Plaintiffs’ response does cite to relevant authority and refers the Court
to the allegations in the complaint, which is what the Court considers on a motion
to dismiss. Accordingly, the motion to strike is denied, and the Court now turns
to the motion to dismiss.
II. Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges
the sufficiency of the complaint for failure to state a claim upon which relief may be
granted. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080
(7th Cir. 1997). To survive a motion to dismiss, a complaint must establish a
plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
allegations of the complaint must be sufficient “to raise a right to relief above the
speculative level.” Id.
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In making this assessment, the district court accepts as true all well-pleaded
factual allegations and draws all reasonable inferences in the plaintiff's favor. See
Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of
Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007), cert. denied, 553 U.S. 1032
(2008). Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled
federal pleading standards, notice pleading remains all that is required in a
complaint: “A plaintiff still must provide only ‘enough detail to give the defendant fair
notice of what the claim is and the grounds upon which it rests and, through his
allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.’“ Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008).
III. Analysis
“To state a claim for relief in an action brought under § 1983, respondents
must establish that they were deprived of a right secured by the Constitution or laws
of the United States, and that the alleged deprivation was committed under color of
state law.” Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “As
the Supreme Court has stated, ‘it is firmly established that a defendant in a § 1983
suit acts under color of state law when he abuses the position given to him by the
State.’” Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994) (quoting West v.
Atkins, 487 U.S. 42, 49-50 (1988)). “Of course, every official abuse of power, even
if unreasonable, unjustified, or outrageous, does not rise to level of a federal
constitutional deprivation.” Kernats, 35 F.3d at 1175. “Some such conduct may
simply violate state tort law or indeed may be perfectly legal, though unseemly and
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reprehensible.” Id.
In analyzing a § 1983 claim, the Court should identify the specific
constitutional right allegedly infringed. Id. If a plaintiff has sufficiently alleged a
violation of his or her constitutional rights, an analysis of the officials’ possible
qualified immunity is appropriate. Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467,
471 (7th Cir. 1997).
A qualified immunity defense may be raised in a motion to dismiss. See
McDonald v. Haskins, 966 F.2d 292, 292 (7th Cir. 1992). “Once a defendant has
pleaded a defense of qualified immunity, it is appropriate for courts to approach to
approach the issue using a two-step analysis: (1) Does the alleged conduct set out a
constitutional violation? and (2) Were the constitutional standards clearly established
at the time in question?” Kernats, 35 F.3d at 1176. The Court may address either
prong in whichever order is best suited to the circumstances of the particular case
at hand. Brooks v. City of Aurora, 653 F.3d 478, 483 (7th Cir. 2011).
“The plaintiff bears the burden of establishing the existence of a clearly
established constitutional right.” Kernats, 35 F.3d at 1176 (citing Raskovich v.
Wade, 850 F.2d 1180, 1209 (7th Cir. 1988). “A clearly established right is one
where ‘the contours of the right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Jacobs v. City of Chi., 215
F.3d 758, 766 (7th Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). To determine whether a right is clearly established, the Court looks to
controlling precedent, but “[i]n some rare cases, where the constitutional violation
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is patently obvious, the plaintiffs may not be required to present the court with any
analogous cases, as widespread compliance with a clearly apparent law may have
prevented the issue from previously being litigated.” Jacobs, 215 F.3d at 767.
Further, there may be some cases where “‘the conduct is so egregious that no
reasonable person could have believed that it would not violate clearly established
rights.’” Gonzalez v. City of Elgin, 578 F.3d 526, 540 (2009) (quoting Smith v. City
of Chi., 242 F.3d 737, 742 (7th Cir. 2001)).
“It is clear . . . that police officers do not have the right to shove, push, or
otherwise assault innocent citizens without any provocation whatsoever.” Clash v.
Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996). “It is only when the circumstances
themselves leave room for the exercise of judgment on the part of the police officer
that qualified immunity is appropriate.” Id. “The police cannot have the specter of
a § 1983 suit hanging over their heads when they are confronted with a dangerous
fugitive, possible escapee, or as long as their behavior falls within objectively
reasonable limits.” Id. “On the other hand, if the facts draw into question the
objective reasonableness of the police action under the alleged circumstances, they
must be developed in the district court before a definitive ruling on the defense can
be made.” Id.
“Whether probable cause exists at the time of an arrest depends on whether
‘the facts and circumstances within the officer’s knowledge . . . are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that he suspect has committed, is committing, or is about to
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commit an offense.” Brooks, 653 F.3d at 484. “Even when a police officer has
probable cause to execute an arrest, he still may have committed an unreasonable
seizure ‘if judging from the totality of circumstances at the time of the arrest, the
officer used greater force than was reasonably necessary to make the arrest.’” Id.
(quoting Gonzalez, 578 F.3d at 539 (internal quotation marks omitted).
Whether the defendants’ use of force comports with the Fourth Amendment’s
“reasonableness” requirement requires the Court to balance the “‘nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.’” Catlin v. City of Wheaton, 574 F.3d
361, 366 (7th Cir. 2012) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Particular factors to consider include “‘the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.’” Catlin, 574
F.2d at 366 (quoting Graham, 490 U.S. at 396). “A factual inquiry into an excessive
force claim ‘nearly always requires a jury to sift through disputed factual contentions,
and to draw inferences therefrom . . . .’” Gonzalez, 578 F.3d at 539 (quoting
Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (internal quotation
marks omitted)).
A. Count I: Excessive Force
Plaintiffs’ count I alleges a § 1983 claim of unconstitutional use of excessive
force in violation of the Fourth and Fourteenth Amendments against defendants

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Redstone, Dawes, and the John Does.2 Specifically, plaintiffs allege that the specific
acts of defendants Redstone, Dawes, and the John Does, individually and acting in
concert with one another, were objectively unreasonable. Those acts are set forth as
follows:
i.
ii.

iii.

iv.

v.

vi.

vii.

viii.

ix.

Defendants Redstone and Dawes unlawfully attempted to coerce
and question [Brickhouse] into making false admissions.
Defendant Redstone purposfully, maliciously, recklessly,
unjustly, and unreasonably held [Brickhouse] captive when he
pulled him from the vehicle without probable cause or a warrant
that was based upon any articulable facts or reasonable
suspicion.
While holding [Brickhouse], Defendant Redstone threatened the
innocent and unarmed Plaintiff in retaliation for the conduct of
his mother for attempting to file a complaint.
Defendant Redstone forcefully and unlawfully dragged
[Brickhouse] into the police station in front of his mother in
violation of [Brickhouse’s] constitutionally protected rights.
Defendant Redstone, without a warrant or consent, physically
removed the Plaintiff from his vehicle; such menacing movements
towards Plaintiff caused Plaintiff [Brickhouse] to fear for his
safety and well being.
Defendant Redstone physically injured the helpless [Brickhouse]
while he was handcuffed and unable to defend himself in the
presence of his mother, Plaintiff Khalil.
Redstone physically assaulted, beat and kicked [Brickhouse] with
unlawful and excessive force and violence without any legal
justification or excuse.
Redstone, and Defendant John Doe #1 and Defendant Dawes
illegally and against his will imprisoned Plaintiff Alexander
Brickhouse without any authority or legal justification and absent
a warrant or probable cause to arrest and detain him.
Defendants collectively conspired to cover up the unlawful
conduct by creating false official reports and making false

2

The Court notes that while the heading for count I only alleges claims
against defendant Redstone and the John Does, count I contains allegations
against both defendants Redstone and Dawes and the parties have briefed this
count as if it pertains to both defendants. Accordingly, the Court assumes that
the heading contains an error.
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statements on those reports. (Doc. 2, p. 11–12).
In Redstone and Dawes’ motions to dismiss, they move to dismiss count I
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted.

Specifically, they contend that count I should be

dismissed because they had probable cause to arrest Brickhouse and because they
are entitled to qualified immunity for their actions arising out of the underlying
occurrence. Further, Dawes notes that plaintiffs have failed to allege that he used any
type of force of physical threat which would violate plaintiffs’ constitutional rights.
Here, the Court finds that Brickhouse has sufficiently alleged a violation of his
constitutional rights. Specifically, Brickhouse alleges that while he was sitting in his
mother’s car, Redstone pulled Brickhouse from his mother’s vehicle and threw him
against the car. Redstone then slammed Brickhouse against the car, handcuffed him,
and drug Brickhouse into the police station, slamming his head into a metal door as
he did so. Redstone moved Brickhouse to a holding cell and slammed his head
against the metal cell bars. Redstone then kicked Brickhouse in the ribs and other
parts of the body as the boy laid in the fetal position on the ground. Redstone then
picked Brickhouse up with the handcuffs, searched him, and locked him in the cell.
Brickhouse alleges all of this occurred while he was no threat and posed no
resistance to defendants. Clearly, if these allegations are true, Brickhouse has
alleged a violation of his constitutional rights. Accordingly, the Court must determine
whether defendants are entitled to qualified immunity.
Here, the Court finds that alleged conduct set out a constitutional violation and
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the constitutional standards were clearly established at the time in question.
Certainly, if what plaintiff alleges is true, whether defendants had probable cause to
arrest Brickhouse or not (which is currently in dispute), a reasonable official would
understand that it could not beat a non-dangerous, unresistant individual. Assessing
the reasonableness of defendants’ force under the circumstances alleged, the Court
finds that the existence of qualified immunity will depend on the facts of the case.
Moreover, considering that, according to the complaint, Brickhouse was only charged
with minor traffic violations and a failure to have insurance, that Brickhouse did
pose an immediate threat to the safety of the officers or others, and that he was
actively resisting arrest or attempting to evade arrest by flight, it does not appear that
defendants’ actions were reasonable, but those facts have not been fully developed
yet. See Catlin, 574 F.2d at 366 (quoting Graham, 490 U.S. at 396). Accordingly,
the motion to dismiss is denied so that the facts can be developed.
As to Dawes argument that plaintiffs have failed to allege that he used any type
of force of physical threat which would violate plaintiffs’ constitutional rights, the
Court finds that Brickhouse has alleged enough for his claim against Dawes to
survive at this point. Indeed, “while it is true that a plaintiff must establish a
defendant’s personal responsibility for any claimed deprivation of a constitutional
right, a defendant’s direct participation in the deprivation is not required.” Miller v.
Smith, 220 F.3d 491, 495 (7th Cir. 2000) (citing, .e.g., Smith v. Rowe, 761 F.2d 360,
369 (7th Cir. 1985)). “‘An official satisfies the personal responsibility requirement
of § 1983 if she acts or fails to act with a deliberate or reckless disregard of the
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plaintiff’s constitutional rights.’” Miller, 220 F.3d at 495 (quoting Crowder v. Lash,
687 F.2d 996, 1005 (7th Cir. 1982)). “Under this rule, police officers who have a
realistic opportunity to step forward and prevent a fellow officer from violating a
plaintiff’s rights though the use of excessive force but fail to do so have been held
liable.” Miller, 220 F.3d at 495 (citing, e.g., Yang v. Hardin, 37 F.3d 282, 285 (7th
Cir. 1994)); see also Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). Here,
Brickhouse alleged that his mother pleaded with Dawes to stop Redstone from
assaulting her son, but Dawes did nothing and ignored her request. Based upon
these allegations, defendants’ motion to dismiss count I is denied.
B. Count II: Unlawful and Unreasonable Seizure
Plaintiffs’ count II alleges a § 1983 claim of unlawful and unreasonable seizure
in violation of the Fourth Amendment against defendants Redstone, Dawes, and John
Doe #1. Specifically, plaintiffs contend that the following specific acts of defendants
Redstone, Dawes, and the John Does, individually and acting in concert with one
another, were objectively unreasonable:
i.

ii.

iii.

iv.

Defendant Redstone unlawfully and with a criminal intent
approached [Brickhouse] while in the vehicle outside of the police
station and under color of authority induced [Brickhouse] to
open the car door.
Redstone purposefully, maliciously, recklessly, unjustly, and
unreasonably held [Brickhouse] captive by pulling and dragging
him out of the vehicle.
Defendants Redstone, Dawes and the John Does purposefully,
maliciously, recklessly, unjustly, and unreasonably restricted
Alexander’s movement and freedom.
Defendant Redstone unlawfully seized Alexander without a
warrant, consent or probable cause from the vehicle in which he
was sitting.
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v.

Defendant Redstone, Dawes and other John Does officers
imprisoned [Brickhouse] under false pretenses and without a
warrant, consent or probable cause. (Doc. 2, p. 13-14).

Defendants contend that no claim can exist as they possessed probable cause
to arrest plaintiff Brickhouse and further they are entitled to qualified immunity.
For the same reasons as explained above, this claim survives defendants’
motion to dismiss. Brickhouse has stated a Fourth Amendment cause of action if
defendants’ conduct constituted a “seizure” and the seizure was unreasonable. See
Kernats, 35 F.3d at 1177. It is undisputed that a seizure occurred here and whether
that seizure was unreasonable has yet to be fully developed. Therefore, defendants’
motion to dismiss count II is denied.
C. Standing
Lastly, the Court sua sponte raises the issue of Brickhouse’s mother’s standing
to proceed in this case. “Under Article III’s case and controversy requirement, only
parties with a real interest or stake in the litigation have standing to sue in federal
court.” Gora v. Ginoza, 971 F.2d 1325, 1328 (7th Cir. 1992). These constitutional
standing requirements bear on the court’s power to entertain a party’s claim. Id.
Here, Brickhouse’s mother’s claims of injury appear to be based solely upon
her status as a bystander to the incidents involving Brickhouse and defendants.
While Brickhouse’s mother does conclusorily allege that she suffered emotional
distress as a result of witnessing Redstone beat her son, Brickhouse’s mother has
failed to allege what Constitutional rights of her’s were violated. Accordingly, it
appears Brickhouse’s mother lacks standing to pursue these § 1983 claims.
Page 18 of 19

Plaintiffs are given fourteen days to brief this issue and defendants shall have
fourteen days thereafter to respond.
IV. Conclusion
For the reasons stated above, the Court denies defendants’ motions to dismiss
(Docs. 15 & 16). Plaintiffs are given fourteen days to brief the issue of Brickhouse’s
mother’s standing and defendants shall have fourteen days thereafter to respond.
The briefs shall contain citations to relevant legal authority. A failure to brief shall
be taken as an admission on the merits that Brickhouse’s mother lacks standing to
pursue these § 1983 claims.
IT IS SO ORDERED.
Signed this 29th day of November, 2012.

Digitally signed by
David R. Herndon
Date: 2012.11.29
11:50:09 -06'00'
Chief Judge
United States District Court

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