Cloninger et al v. Marconi et al

Filing 32

ORDER, Granting in part and Denying in part 21 MOTION to Dismiss Plaintiffs' Amended Complaint filed by Madison County, Bill Marconi. The Defendant's Motion to Dismiss the First Amended Complaint is DENIED as to Count I and GRANTED as to Count II.Signed by Judge Staci M. Yandle on 11-19-14. (cmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERI CLONINGER, Individually and as
Representative of the Estate of Barry
Cloninger, and
ASHLEY BRIMER, Individually
Case No. 14-cv-103-SMY-PMF
Plaintiff,
vs.
BILL MARCONI, Individually and as
Sheriff’s Deputy for Madison County, and
MADISON COUNTY
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss the First Amended
Complaint (Doc. 18). The First Amended Complaint alleges that on or about January 4, 2013,
Barry Cloninger was shot and killed by Madison County Sheriff Deputy Bill Marconi. Deputy
Marconi was responding to a call at 7111 State Route 140 in Edwardsville, Illinois and was
wearing his official Madison County Sheriff Department uniform when he responded to the call.
When he arrived at 7111 State Route 140, he noticed that there were footprints leading in the
general direction of the decedent’s residence. Deputy Marconi followed the footprints onto the
decedent’s property and encountered the decedent.
The Amended Complaint alleges that Deputy Marconi did not have probable cause to
enter onto the property and further alleges that there was no probable cause to suspect the
decedent of any criminal activity. While on the decedent’s property, Deputy Marconi fired his
service weapon on the decedent several times, resulting in the death of the decedent. The
Amended Complaint further alleges that these actions violated the decedent’s civil rights,

including, but not limited to, his Fourth and Fourteenth Amendment rights and similar provisions
of the Illinois Constitution.
The Amended Complaint also alleges that Madison County is liable for torts committed
by Deputy Marconi under the doctrine of respondeat superior because of a lack of policies,
customs, and practices issued by the Sheriff requiring deputies to identify themselves when on
private property. Further, the Amended Complaint alleges that Madison County is liable for lack
of training of Deputy Marconi.
The Defendants have filed a Motion to Dismiss (Doc. 21). They argue that Count I
should be dismissed because Plaintiffs do not identify the specific constitutional rights in the
Fourth and Fourteenth Amendment, Section 1983, or the Illinois Constitution that were allegedly
violated with the support of facts that plausibly suggest that they are entitled to relief. The
Defendants argue further that they are not required to “piece together the covert facts of
Plaintiffs’ Complaint to surmise the legal foundation of Plaintiffs’ Complaint or which actions
allegedly taken by Deputy Marconi support their claim.” Regarding Count II, Defendants argue
that the circumstances alleged do not plausibly support liability of Madison County under
Section 1983, that Plaintiffs have not sufficiently pled that Madison County maintained an
intentional policy or practice of failing to establish policies or training for its deputies, and that
the state law claims against Madison County are barred by the Local Governmental and
Governmental Employees Tort Immunity Act.
Courts are reluctant to dismiss a case on technical grounds and prefer to decide cases on
their merits. Foman v. Davis, 371 U.S. 178, 181 (1962).

All of the well-pleaded factual

allegations contained in the amended complaint must be taken as true and construed in a light
most favorable to the plaintiff. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249 (1989).

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Dismissal for failure to state a claim is properly granted only if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45–46 (1957). Rule 8 does not require plaintiffs to plead the
“elements” of legal theories, or facts corresponding to each element. See Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 510-11 (2002); Bartholet v. Reishauer A.G., 953 F.2d 1073, 1077–78 (7th
Cir.1992). Therefore, when federal courts entertain claims under state law, it is not necessary to
plead facts matching elements of legal theories. See Hefferman v. Bass, 467 F.3d 596, 599 (7th
Cir.2006); AXA Corporate Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272, 277 (7th
Cir.2003). Although the complaint might not contain all of the facts that would be necessary to
prove a claim, “a filing under Rule 8 is not supposed to do that.” Hoskins v. Poelstra, 320 F.3d
761, 764 (7th Cir.2003). Instead, the Complaint “should be ‘short and plain’ and suffices if it
notifies the defendant of the principal events.” Id. (quoting Fed.R.Civ.P. 8(a)(2)).
Regarding Count I, It is evident from the Complaint that the rights alleged to have been
violated are the Fourth Amendment right to be free from unreasonable search and seizure and the
extension of the application of this Right through the Fourteenth Amendment. Taking the
allegations in the Complaint as true, Plaintiff has sufficiently pled a violation of these rights by
alleging and providing facts that there was an act under color of law, that the act constituted a
seizure, and that the act was unreasonable.
As a general rule, a government employee who acts in his official capacity or exercises
his responsibilities pursuant to state law acts under color of state law. West v. Atkins, 487 U.S.
42, 50 (1988). A police officer's acts are not under color of law unless they are related to the
performance of police duties. Gibson v. Chicago, 910 F.2d 1510, 1516–19 (7th Cir. 1990). The
essential inquiry is whether the defendant's actions related in some way to the performance of a

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police duty. Id. at 1517. Based on the liberal pleading standard followed in federal court and the
allegations contained in the Amended Complaint, Plaintiffs have sufficiently alleged that
Defendant Marconi was acting under color of state law at the time he encountered the Decedent.
A person is seized for Fourth Amendment purposes when, from all of the circumstances
surrounding the incident, a reasonable person in the situation would believe he or she was not
free to leave; to demonstrate seizure, individuals must show that they were touched by the police
or that they yielded to a show of authority, and the governmental termination of freedom of
movement must be intentional. Belcher v. Norton, 497 F.3d 742, 748 (7th Cir.2007). Plaintiffs
have sufficiently alleged that a seizure of the Decedent occurred.
Finally, a claim that law-enforcement officers used excessive force is governed by the
Fourth Amendment's “reasonableness” standard. See Graham v. Connor, 490 U.S. 386 (1989);
Tennessee v. Garner, 471 U.S. 1 (1985). Determining the objective reasonableness of a particular
seizure under the Fourth Amendment “requires a careful balancing of the nature and quality of
the intrusion on the individual's Fourth Amendment interests against the countervailing
governmental interests at stake.” 490 U.S., at 396. The inquiry requires analyzing the totality of
the circumstances. Id. This is analyzed from the perspective “of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id. In taking the allegations in the
Amended Complaint as true, the Plaintiffs have sufficiently pled this aspect of their claim, as
well. Therefore, the Court denies the Defendants’ Motion to Dismiss as to Count I of the
Amended Complaint.
Count II is alleged against Madison County under a respondeat superior theory.
However, it is well established that a municipality cannot be held liable under Section 1983 on a
respondeat superior theory. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658,

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691 (1978). If the action that is alleged to be unconstitutional implements a policy officially
adopted by the county’s officers, the county may be liable. Id. Additionally, local governments
may be sued for constitutional violations that occur pursuant to a governmental “custom” even
though that custom has not been formally adopted. Id. There must be a causal link between the
policy or custom and the alleged constitutional violation, and there must also be a showing that
the municipality acted with “deliberate indifference” to the consequences of its actions. City of
Canton, Ohio v. Harris, 489 U.S. 378, 385, 388 (1989). “[o]ne incident of unconstitutional
conduct does not show that a city has a policy of encouraging police officers to engage in
unconstitutional acts.” Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985) (quoting
Tritsis v. Officer Owsley, No. 83 C 1264, slip op. at 4 (N.D.Ill. June 13, 1983).
In this case, the allegations of the Amended Complaint do not sufficiently allege a policy
or custom for which Madison County may be held liable. Only one incident is alleged, and one
isolated incident, without more, cannot support Plaintiffs’ claim. Further, there are no specific
allegations as to which policies or customs led to the alleged violation other than general
allegations regarding lack of training and lack of a policy requiring a deputy to identify himself
on private property. None of the allegations relate these policies to the alleged violation that
occurred. Accordingly, the Court grants the Defendants’ Motion to Dismiss as to Count II of the
Amended Complaint.
For the foregoing reasons, the Defendant's Motion to Dismiss the First Amended
Complaint is DENIED as to Count I and GRANTED as to Count II.
IT IS SO ORDERED.

DATED:

November 19, 2014

_/s/_Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE
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