Goodman et al v. United States of America et al

Filing 150

OPINION AND ORDER: Court GRANTS 134 Motion to Dismiss. Plaintiffs have 30 days after entry of this order to file an amended complaint to address the deficiencies identified with regard to Count I and Count VIII of the complaint. Count V and Count X are DISMISSED without leave to amend. The United States of America is DISMISSED as a defendant in this case and FINAL JUDGMENT will be ENTERED in its favor. Court DENIES 142 Motion for a summary ruling. Signed by Senior Judge James T Moody on 7/25/2011. cc: AUSA US Attorney's Office - Chi/IL (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROY GOODMAN JR., ROY GOODMAN III, )
RENEE GOODMAN, RENIECE GOODMAN,)
Plaintiffs,
)
v.
)
ADAM CLARK, et al.,
)
Defendants.
)

No. 2:09 CV 355

OPINION AND ORDER
This case arises out of a search and seizure of the plaintiffs on December 28, 2007.
(DE # 119.) Plaintiffs filed a complaint on August 20, 2008 (DE # 1), a first amended
complaint on March 31, 2009 (DE # 55), a second amended complaint on December 28,
2009 (DE # 108), and a third amended complaint on September 30, 2010. (DE # 119.)
Plaintiffs Roy Goodman Jr., Roy Goodman III, Renee Goodman, and Reniece Goodman
are asserting claims of excessive force, false arrest, equal protection class of one,
conspiracy, malicious prosecution, and unlawful entry. (Id.)
Defendants the United States of America, Agent Adam Clark, Agent Christopher
Soyez, Agent Lori Warren, Agent Carrie Landau, Agent Mark Becker, Agent Robert
Hall, Michael Barnes, Agent Tyrone Douglass, Gerald Michalak, Robert Ramsey, Daniel
Glavach, Laura Walker, Agent Ted May, and Agent Christopher Crocker (collectively
the “federal defendants”)1 filed a motion to dismiss Counts II, V, XIII, and X of the third
amended complaint for failure to state a claim under FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(6) and Count XI for lack of jurisdiction under RULE 12(b)(1) and for
1

The complaint uses the term “federal agents” to refer to all of the individual
federal defendants and defendant Melissa Sims collectively.

failure to state a claim for relief under RULE 12(b)(6). (DE # 134.) For the reasons
discussed below, the motion to dismiss will be GRANTED. Count II and Count VIII
will be dismissed with leave to amend within 30 days from entry of this order and
Count V, Count X, and XI will be dismissed without leave to amend.
To begin, the court will briefly address the federal defendants’ motion for a
summary ruling. (DE # 142.) Plaintiffs had been given until February 11, 2011 to file a
response to the federal defendants’ motion to dismiss. (DE # 138.) After plaintiffs
missed this deadline, the federal defendants filed their motion for a summary ruling on
February 15, 2011. (DE # 142.) On February 17, 2011, plaintiffs filed a second motion to
extend the time to file their response (DE # 143) and the Magistrate Judge granted this
request on February 18, 2011 (DE # 145.) Plaintiffs filed their response on March 5, 2011.
(DE # 146.) Therefore, the motion for a summary ruling will be DENIED.
I.

ALLEGATIONS IN THE COMPLAINT
Plaintiffs allege that on December 28, 2007, they were “peacefully enjoying their

home” when defendant Hammond officers, Calumet officers, and federal agents
entered their home, used grenades and smoke bombs, and restrained, struck, and
injured them. (Pls.’ Third Am. Compl. ¶ 10, DE # 119.) Plaintiffs allege that they were
arrested, forcefully secured, and subjected to excessive force. (Id. ¶ 11.) They allege that
they had not resisted arrest, threatened any of the defendants, obstructed justice, or
battered or assaulted any of the defendants. (Id. ¶¶ 12, 14.) They claim that some or all
of the defendant Hammond officers, Calumet officers, and federal agents unreasonably
2

seized them, used bombs, grenades, and smoke bombs, struck and/or grabbed them or
failed to intervene in the use of force. (Id.) Plaintiffs also allege that the individual
defendants arrested them despite the fact that they had not violated any law. (Id.)
Plaintiffs allege that the Hammond Officers, the Calumet officers, and the federal
agents charged and/or participated in the charging of plaintiff Roy Goodman Jr. with
criminal activity and arrested, participated in the arrest, or failed to prevent his arrest
despite the fact that they failed to observe or learn that he had committed criminal
activity of any sort. (Id. ¶ 16.) Plaintiffs allege that on December 28, 2007, all of the
individual defendants were on duty during the times relevant to the complaint and
were duly appointed officers. (Id. ¶ 18.) They claim that the individual defendants
engaged in the conduct complained of on December 28, 2007 in the course and scope of
their employment while on duty. (Id.) Plaintiffs state that they are bringing their claims
against the individual federal defendants in their individual capacities. (Id.)
Plaintiffs claim that the individual Hammond Officers, Calumet Officers, and
federal agents conspired to cause damages to plaintiffs by 1) agreeing to falsely arrest
them; 2) agreeing to falsely institute criminal proceedings against Roy Goodman, Jr.;
3) agreeing not to report each other after witnessing and/or using excessive force
against plaintiffs; 4) agreeing not to report each other after falsely arresting and/or
charging plaintiffs; and 5) generating false documentation to cover-up for their own and
each others’ misconduct. (Id. ¶ 19.) Plaintiffs allege that the defendants communicated
about and agreed to their conspiracy on and before December 28, 2007. (Id.)
3

Plaintiffs further allege that the individual federal defendants engaged in a
cover-up that lead to the generation of false documentation and criminal charges
against Roy Goodman, Jr. (Id. ¶ 38.) They allege that this demonstrates that the
individual federal defendants failed in their duty to enforce the laws equally and fairly
towards Roy Goodman, Jr. (Id.) Plaintiffs claim that Roy Goodman, Jr. had the status of
someone who was involved in an incident during which the federal defendants and
Hammond officers illegally entered his home, used excessive force, and falsely arrested
him and his family. (Id. ¶ 39.) They allege that the federal agents intentionally
discriminated against him on the basis of this status and treated him differently by
illegally generating false evidence against him and criminally charging him. (Id.)
Plaintiffs allege that Roy Goodman, Jr. was treated with ill will and/or discriminated
against with no rational basis. (Id. ¶ 40.) They allege that the individual federal
defendants treated Roy Goodman, Jr. differently by generating false evidence against
him and that he was similarly situated to other individuals involved in incidents with
police who did not have false evidence and/or documentation created against them.
(Id.) Plaintiffs allege that the federal agents have each arrested over twenty other
individuals besides Roy Goodman, Jr. and they did not falsify reports as to these
individuals. (Id. ¶¶ 41-43.)
II.

STANDARD OF REVIEW
When considering whether a complaint fails to state a claim upon which relief

can be granted and is therefore subject to a RULE 12(b)(6) dismissal, the court accepts all
4

of “the complaint’s well-pleaded allegations as true” and draws “all favorable
inferences for the plaintiff.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). A
complaint must provide a “short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a). To satisfy RULE 8(a), “the statement
need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
The Supreme Court has held that to survive a motion to dismiss, a complaint
must be plausible on its face, meaning that the plaintiff has pleaded “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To meet this standard,
a complaint does not need detailed factual allegations, but it must go beyond providing
“labels and conclusions” and “be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology,
40 F.3d 247, 251 (7th Cir. 1994) among other authorities). In other words, a complaint
must give “enough details about the subject-matter of the case to present a story that
holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010); Sanjuan,
40 F.3d at 251 (stating that the plaintiff does not need to plead facts that establish each
element of a cause of action and that “[a]t this stage the plaintiff receives the benefit of
imagination, so long as the hypotheses are consistent with the complaint”).

5

The United States Court of Appeals for the Seventh Circuit has explained that
“[i]t is rarely proper to draw analogies between complaints alleging different sorts of
claims; the type of facts that must be alleged depend upon the legal contours of the
claim.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 781-82 (7th Cir. 2007); Pratt
v. Tarr, 464 F.3d 730, 732 (7th Cir. 2006). Accordingly the court will discuss the type of
allegations needed for each claim in its analysis below.
III.

ANALYSIS
A.

Excessive Force Claim Pursuant to Bivens and the Fourth Amendment of the
United States Constitution (Count II)

The federal defendants argue that the claim of excessive force against them
should be dismissed because the plaintiffs “fail to specifically allege the actions of any
specific federal officer.” (DE # 135 at 6.) They argue that under Iqbal a plaintiff can only
properly plead a Bivens action by alleging how an individual defendant’s actions
violated the Constitution. (Id. at 6.) Plaintiffs respond that their complaint is plausible
and that they should not be required to attribute specific actions to each federal
defendant when the defendants acted as a group. (DE # 147 at 2.)
In Iqbal, the Supreme Court stated that under Bivens, government officials cannot
be held “liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” 129 S. Ct. at 1948. The Court continued that “[b]ecause vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has

6

violated the Constitution.” Id. The federal defendants also cite to Burks v. Raemisch,
555 F.3d 592, 593-94 (7th Cir. 2009), for the idea that “[l]iability depends on each
defendant’s knowledge and actions, not on the knowledge or actions of persons they
supervise.” In order to properly plead a defendant’s personal involvement for a Bivens
action, a plaintiff must plead that the defendant acted or failed to act with a deliberate
or reckless disregard of plaintiff’s constitutional rights or that the conduct causing the
constitutional deprivation occurred at the direction of the defendant or with his
knowledge and consent. Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997).
There are three possible defects in plaintiffs’ pleadings as to personal
involvement in their Bivens claims.2 First, as explained in Iqbal and Burks, a plaintiff
cannot state a claim of relief under Bivens based on allegations against a supervisor
based on his or her position as supervisor without any allegations of personal
involvement. Second, the plaintiff cannot use vague language that does not state that
each defendant participated in the unconstitutional conduct. The Seventh Circuit has
held that a “plaintiff bringing a civil rights action must prove that the defendant
personally participated in or caused the unconstitutional actions.” Alejo v. Heller,
328 F.3d 930, 936 (7th Cir. 2003).3 In Brooks v. Ross, the United States Court of Appeals
Plaintiffs’ claims for excessive force (Count III), conspiracy (Count VIII), and
unlawful entry into property (Count X) against the federal defendants are all made
under Bivens. Thus the parties’ arguments and the court’s analysis applies to all of these
claims.
2

In Alejo, the plaintiff alleged that a named defendant and “other John Does of
the Bureau of Prisons” violated his constitutional rights by harassing and punishing
3

7

for the Seventh Circuit found that plaintiff did not properly allege personal
involvement when he claimed that “‘one or more of the Defendants’ had engaged in
certain acts or deprived him of his constitutional rights” because the phrasing was
vague and did “not adequately connect specific defendants to illegal acts.” 578 F.3d 574,
581 (7th Cir. 2009). On the other hand, the court found that the plaintiff adequately
pleaded personal involvement under Iqbal when he specified that he was directing his
allegations at all of the defendants by pleading that “the defendants” acted in concert
with other officials in unlawful retaliation against him.4 Id. at 582. Third, a plaintiff has

him disproportionately on the basis of his national origin and by denying him Spanishspeaking interpreters so that he could have meaningful access to the court.
328 F.3d at 933. The Seventh Circuit affirmed the district court’s sua sponte dismissal of
these claims. It explained that in light of the factual circumstances in that case, the
“phrase ‘John Does’ is fatally over-broad in suggesting that an uncertain number of
Bureau of Prisons officials, potentially from every level, participated in denying Alejo
his constitutional rights.” Id.
In a case relied upon by the federal defendants, Robbins v. Okla. ex rel. Dep’t of
Human Servs., the United States Court of Appeals for the Tenth Circuit explained that in
Section 1983 cases, “it is particularly important . . . that the complaint make clear exactly
who is alleged to have done what to whom, to provide each individual with fair notice
as to the basis of the claims against him or her, as distinguished from collective
allegations against the state.” 519 F.3d 1242, 1249-50 (10th Cir. 2008). In Robbins, the
plaintiffs alleged that employees of the Department of Human services instructed them
to place their child in a specific day care and the child died at that day care. Id. at 1250.
The complaint, which also listed the day care operator as a defendant, cast allegations
against all defendants collectively and did not specify which defendants had direct
contact with the child and her parents. Id. The Tenth Circuit explained that the
defendants should not have been grouped in a single allegation because the allegedly
tortious acts of each defendant was “entirely different in character” from those of the
other defendants. Id. The Tenth Circuit dismissed the case for failure to provide
defendants with notice of the claims against them because it did not allege the acts
attributable to them. Id.
The complaint here is more similar to the complaint in Brooks than to the one in
4

8

not alleged that a defendant was personally involved in a constitutional violation when
the plaintiff only alleges that the defendant engaged in behavior that was “just as
consistent with lawful conduct as it [was] with wrongdoing.” Brooks, 578 F.3d at 581.
In Count III, plaintiffs have alleged that “[t]he actions and/or the failure to
intervene in the actions of the FEDERAL AGENTS amounted to an excessive use of
force onto the PLAINTIFFS.” (Third Am. Compl. ¶ 26.) The complaint alleged that
On or about December 28, 2007, some or all of the HAMMOND and
CALUMET OFFICERS and/or FEDERAL AGENTS were engaged in an
unreasonable seizure of the PLAINTIFFS. Specifically, some or all of the
HAMMOND and CALUMET OFFICERS and the FEDERAL AGENTS
used sound bombs, grenades[,] and smoke bombs, struck and/or grabbed
PLAINTIFFS and/or failed to intervene in the use of said force, despite
the fact that PLAINTIFFS had not resisted arrest and/or threatened said
Defendants.
(Id. ¶ 12.) Plaintiffs’ failure to allege which federal defendants took which specific acts
in the use of excessive force does not in and of itself warrant dismissal of their claim. In
excessive force cases like the one at hand, courts have allowed plaintiffs to plead that
groups of defendants participated in the use of excessive force without alleging which
defendant threw which punch.
For example, in Clark v. City of Chicago, the plaintiffs alleged that defendant
“Plainclothes Officers” and some defendant “Uniformed Officers” beat them in a
parking lot and that the “Uniformed Officers” failed to intervene, failed to enforce the
Robbins because most of the federal defendants were alleged to have committed acts of
the same character through their participation in the seizure of the plaintiffs. However,
as discussed below, the complaint here does not allege that all federal defendants were
present at or participated in the seizure.
9

law, and failed to give assistance. No. 10-C-1803, 2010 U.S. Dist. LEXIS 121685, at *1-3
(N.D. Ill. Nov. 17, 2010). The defendants argued that the claims of excessive force
asserted against them under Section 1983 should be dismissed because the plaintiffs did
not allege the actions of each individual defendant in the alleged use of excessive force.
Id. at *9. They argued that it was too vague for the plaintiffs to allege that “all” or “one
of” or “more than one of” the defendants used excessive force. Id. at *9-10.
The district court denied the motion to dismiss, finding that the plaintiffs had
alleged sufficient facts to give defendants notice of the claims against them and to
plausibly state a claim. Id. at *10. In reaching its conclusion, the court explained that
under the circumstances the plaintiffs described - a severe beating from several
defendants - it would be impossible for them to provide “a detailed, blow-by-blow
recitation of who did what and when” at the pleading stage before discovery. Id. The
court emphasized that the plaintiffs had alleged personal involvement by pleading that
each individual defendant had either participated in the beating or stood by and did not
stop the beating and they all played some role in a Section 1983 conspiracy. Id. at *11. It
also noted that the plaintiffs did not allege conduct consistent with lawful conduct,
alleged specific acts that officers took, and broke the defendants down into groups “male Plainclothes Officers,” “female Plainclothes Officers,” and “Uniformed Officers.”
Id. at *11-13. The court distinguished cases like Brooks and Alejo in part because they did

10

not involve excessive force.5 Id. at *12-14. The Clark court stated that in the context of the
excessive force claims at issue, “the Individual Defendants need not be provided with
notice of every alleged act that each Individual Defendant committed.” Id. at *17.
In another excessive force case, Martin v. Teusch, the plaintiff alleged that officers
from the Fort Wayne Police Department, Allen County, and the State of Indiana
punched, kicked, and choked him but he did not allege the names of the officers or
specify which officer did which act. No. 1:09-cv-321, 2010 U.S. Dist. LEXIS 35492, at *6-8
(N.D. Ind. Apr. 9, 2010). The district court denied the Fort Wayne Officers’ motion to
dismiss the complaint on the basis that it did not allege specific facts against them.
Id. The district court found that it was sufficient for him to allege that at least two Fort
Wayne officers participated in hitting, kicking, and punching him and that at least three
were present at the traffic stop. Id. While the court in Martin applied a less stringent
standard because the plaintiff was pro se, this decision shows that courts within the
Northern District of Indiana have not required plaintiffs to plead which defendant took
which action in excessive force claims.
In another case, Fields v. City of Chicago, the district court determined that the
plaintiff “adequately allege[d] personal involvement by directing his failure to
intervene and conspiracy claims against all of the individual defendants.”
No. 10-c-1168, 2011 U.S. Dist. LEXIS 36410, at *17-18 (N.D. Ill. Apr. 4, 2011). The court
5

The court also distinguished a case upon which the federal defendants rely,
Grieveson v. Anderson, because the court there was evaluating a summary judgment
ruling. 538 F.3d 763, 778 (7th Cir. 2008).
11

reasoned that Seventh Circuit’s relaxation of the heightened pleading required under
RULE 9(b) when the “plaintiff lacks access to all facts necessary to detail his claim”
should also apply to application of RULE 8. Id. at *16-17 n.2 (citing Corley v. Rosewood
Care Ctr., Inc., 142 F.3d 1041, 1051 (7th Cir. 1998); Pirelli Armstrong Tire Corp. Retiree Med.
Benefits Trust v. Walgreen Co., 631 F.3d 436, 446 (7th Cir. 2011). Similarly, in Warren v.
Sheriff of Cook County Thomas Dart, the complaint divided the defendants into three
groups - supervisory officers, correctional officers, and nurses - and alleged the conduct
of each group collectively rather than alleging the acts of each individual. No. 09-cv3512, 2010 U.S. Dist. LEXIS 124671, at *15 (N.D. Ill. Nov. 24, 2010). The district judge
found that the plaintiffs did not need to “parse which of the named [d]efendants were
responsible for which of the [constitutionally violative] acts or omissions.” Id. at *20-21.
The court found that the plaintiffs could identify each defendant’s personal role
through discovery process. Id.
Accordingly, the plaintiffs may allege that an individual personally participated
in the use of excessive force without specifically stating what force that individual
defendant used. Plaintiffs have had the opportunity to participate in some limited
discovery. (DE # 115 at 39; DE # 147 at 2.) But discovery has also been stayed for long
periods of time during this litigation (see DE ## 88, 146) and the parties have not made a
discovery plan pursuant to FEDERAL RULE OF CIVIL PROCEDURE 26(f). (DE # 138 at 2.)
Because only limited discovery has been undertaken in this case and because of the

12

nature of the excessive force claims, it may be difficult for the plaintiffs to know which
federal agents used bombs, grenades, smoke bombs, or other force.
What is problematic here is that plaintiffs have not alleged that all of the federal
defendants were engaged in the unreasonable seizure or even that all of them were
present at the alleged seizure on December 28, 2007. They have just stated that “some or
all” of the federal agents were involved. Plaintiffs have also only alleged that “some or
all” of the federal agents “used sound bombs, grenades[,] and smoke bombs, struck
and/or grabbed PLAINTIFFS and/or failed to intervene in the use of said force.” Thus,
it is possible from the complaint that some of the federal defendants did not use force or
fail to intervene in the use of force. Under Brooks, a complaint can state a claim by
stating that “all defendants” took an action, but the language “some or all of the
defendants” is insufficient to allege personal involvement because it does not provide
the individual defendants with notice of what claims are being brought against them.
Accordingly, plaintiffs have not pleaded beyond the speculative level that each or any
of the individual federal defendants actually violated their constitutional rights.
As part of their excessive force claim, plaintiffs also allege that “[t]he individual
defendants arrested and/or participated in the arrest” of the plaintiffs even though the
plaintiffs had not violated state and/or federal law. (Pls.’ Third Am. Compl. ¶ 13.) Here,
the plaintiffs do allege that all of the defendants participated in the arrest. However it is
not automatically a constitutional violation for a government official to arrest someone
who ultimately did not commit a violation of law. Graham v. Connor, 490 U.S. 386, 396
13

(1989) (“The Fourth Amendment is not violated by an arrest based on probable cause,
even though the wrong person is arrested.”) (quoting Hill v. California, 401 U.S. 797
(1971)). Plaintiffs do not allege that all of the federal defendants knew that there was not
a warrant, probable cause, or some other legal justification for arresting the plaintiffs.6
Therefore, according to the complaint, the act of arresting the plaintiffs is just as
consistent with lawful conduct as it is with unlawful conduct. Because plaintiffs have
alleged that all of the federal defendants participated in their arrest, but have not
alleged that all of the federal defendants participated or even were present at their
seizure,7 the complaint does not clearly allege personal involvement in unconstitutional
conduct by all of the federal defendants. It is not clear from the complaint that plaintiffs
are not attempting to hold defendants responsible for actions of their subordinates as
prohibited by the rule stated in Iqbal and Burks. Nonetheless, as explained above,
plaintiffs have not alleged that all the federal defendants were present at the seizure
and have not alleged the roles or positions of each individual federal defendant.
6

In paragraph 16, plaintiffs allege that the federal agents charged Roy Goodman
Jr. with criminal activity and arrested him without probable cause. (Pls.’ Third Am.
Compl. ¶ 16.) They do not allege that the federal agents knew that probable cause did
not exist, and they do not make a similar allegation for any other plaintiff.
7

The court is concerned that plaintiffs may have filed their complaint against all
federal defendants involved in their arrest whether or not the federal defendants were
present at or even knew of the seizure on December 28, 2007. This concern is bolstered
by the indication that one of the federal agents, who is not represented in this motion,
Melissa Sims, was stated to be an evidence control technician. (DE # 135 at 2.) Someone
in this type of position appears to be unlikely to be involved in a seizure, particularly
when the complaint does not clearly allege that all of the defendants were present at the
seizure.
14

Therefore, it is not clear that plaintiffs are not attempting to hold any of the federal
defendants responsible for the actions of their subordinates without alleging personal
involvement.
In a case with a complaint similar to the one at hand, Smith v. Village of Dolton,
the plaintiff alleged that three specific defendants seized and searched him without a
warrant, probable cause, or any other legal justification and that “one or more of the
Defendant OFFICERS” knew of these violations and failed to intervene. No. 09-C-6351,
2010 U.S. Dist. LEXIS 17458, at *6 (N.D. Ill. Feb. 25, 2010). The district court found that
the complaint did not notify defendants if they were the target of the plaintiff’s failure
to intervene allegations. Id. at *6-7. The trial court explained that the complaint did not
define the term “Defendant OFFICERS” or explain how it was intended to be used in
different sections of the complaint. Id. at *7. As a result, the court dismissed the
plaintiffs’ complaint against the defendant officers for failure to intervene but gave the
plaintiffs leave to amend the complaint in order to address the identified insufficiencies.
Id. at *16-17.
Accordingly, plaintiffs have 30 days to amend their complaint consistent with
this order. Plaintiffs must be able to allege that each individual federal defendant was
present at the seizure and took part in the excessive force or failed to intervene or knew
that excessive force would be used and turned a blind eye to it, assented to it, or
directed it. Plaintiffs’ allegation as to their arrest does not rise to the level of a
constitutional violations. If there is any defendant for which plaintiffs cannot allege that
15

he or she was individually responsible for violating plaintiffs’ constitutional rights as
part of the seizure, that defendant will be dismissed from the case. Eades v. Thompson,
823 F.2d 1055, 1063 (7th Cir. 1987).
B.

Conspiracy (Count VIII)

Plaintiffs’ allegations as to conspiracy are as follows:
19. Some or all of the HAMMOND OFFICERS, CALUMET OFFICERS[,]
and/or THE AGENTS OF THE UNITED STATES conspired, with each
other and/or with the members of their own department, to cause
damages to PLAINTIFFS in the following manner:
a.
agreeing to falsely arrest the PLAINTIFFS;
b.
agreeing to falsely institute criminal charges/proceedings
against ROY GOODMAN, JR.[;]
c.
agreeing not to report each other after witnessing and/or
using excessive force relative to the PLAINTIFFS;
d.
agreeing not to report each other after falsely arresting
and/or charging the PLAINTIFFS;
e.
generating false documentation to cover-up for their own and
each other’s misconduct.
(Pls.’ Third Am. Compl. ¶ 19.)
The federal defendants argue that this claim should be dismissed because it is a
formulaic recitation of the elements of conspiracy. (DE # 135 at 9.) They also argue that
this claim should be dismissed because it does not allege the individual actions taken by
each federal defendant. (Id. at 9-10.)
The Seventh Circuit has explained that claims of conspiracy are held to a “high
standard of plausibility,” higher than that for other allegations. Cooney v. Rossiter, 583
F.3d 967, 971 (7th Cir. 2009). The Seventh Circuit has required that a plaintiff pleading
conspiracy allege “the parties, the general purpose, and the approximate date of the
16

conspiracy.” Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006). Here, plaintiffs’ have
alleged that the conspiracy was related to the seizure on December 28, 2007, and that
the defendants conspired not to report each other based on their actions of that day and
to bring false charges against Roy Goodman, Jr. In Flowers v. “Secrets” Night Club, the
court found that the plaintiffs’ allegations of conspiracy met Iqbal and Twombly’s
plausibility standard when the plaintiffs alleged that officers conspired with security
guards to arrest the plaintiffs without provocation. No. 09-C-1736, 2010 U.S. Dist. LEXIS
117718, at *11-12 (N.D. Ill. Nov. 2, 2010). Similarly, plaintiffs’ have alleged a claim of
conspiracy as to excessive force, but the judge in Flowers made an observation that
applies here: “[p]laintiffs will have their work cut out for them developing evidence of a
conspiracy distinct from a run-of-the-mill case of a police officer relying on an
eyewitness.” Id. at *11.
Further, plaintiffs’ Bivens conspiracy claim is based on the premise that the
federal defendants violated their constitutional rights. Therefore, if they have not
alleged that their constitutional rights were violated, they have not sufficiently alleged a
Bivens conspiracy claim. See e.g., Kimberlin v. United States Dep’t of Justice, 788 F.2d 434,
439 (7th Cir. 1986). Plaintiffs have not sufficiently pleaded that the federal defendants
falsely arrested them. Plaintiffs have not alleged any facts that the federal defendants
knew that there was no probable cause or legal justification for arresting them. Plaintiffs
only assert the legal conclusion that they were “falsely arrested.” They also allege that
they were arrested despite not having violated a crime, but this is not necessarily a
17

constitutional violation. In their brief only, not in their complaint, plaintiffs point to
Agent Adam Clark’s affidavit submitted to support the warrant for the search of their
home. (DE # 147 at 9.) They argue that the content of the conspiracy is seen by looking
at the affidavit and the complaint together. Even if the court considers this document, it
does not do anything to help plaintiffs state a claim that they were falsely arrested.
Nothing in the affidavit shows that Agent Clark made any intentionally false statements
or omissions. Plaintiffs have also not pointed to any false documentation that was
created as a cover-up. Therefore, plaintiffs have only sufficiently pleaded a Bivens
conspiracy as it relates to the seizure.
Even as it relates to the seizure, plaintiffs’ conspiracy claim suffers from the same
insufficiency as to personal involvement as their excessive force claim. Plaintiffs have
alleged that “[s]ome or all of the” federal defendants have engaged in a conspiracy.
(Pls.’ Third Am. Compl. ¶ 19.) Therefore, plaintiffs’ Bivens conspiracy claim suffers from
the same insufficiency as their excessive force claim as discussed above. Plaintiffs have
not pleaded that all of the individual federal defendants participated in the conspiracy,
so this claim must be dismissed. Plaintiffs will be granted 30 days to allege which of the
defendants participated in the conspiracy related to the allegations of excessive force.
C.

Bivens Unlawful Entry into Property (Count X)

Plaintiffs claim that the federal defendants violated their Fourth Amendment
rights by invading their home. Generally a Fourth Amendment violation cannot be
based on an entry made pursuant to a valid warrant. Whitlock v. Brown, 596 F.3d 406,
18

410 (7th Cir. 2010). While a warrant and the information supporting it are presumed to
be valid, this presumption falls away if there is a showing that the “officer who sought
the warrant ‘knowingly or intentionally or with a reckless disregard for the truth, made
false statements to the judicial officer,’” and those false statements were material to the
judicial officer’s finding that probable cause existed. Id. (quoting Beauchamp v. City of
Noblesville, Ind., 320 F.3d 733, 742-43 (7th Cir. 2003)); Suarez v. Town of Ogden Dunes, 581
F.3d 591, 596 (7th Cir. 2009). The presumption is also overcome by a showing that the
officer seeking the warrant “intentionally or recklessly withheld material facts from the
warrant-issuing judge.” Whitlock, 596 F.3d at 411 (citing United States v. Sims, 551 F.3d
640, 645 (7th Cir. 2008)). In sum, the Fourth Amendment is violated by seizures made
pursuant to warrants issued upon a probable cause showing that is based on a material
false statement or omission made knowingly, intentionally, or with reckless disregard
for the truth. United States v. Williams, 565 F. Supp. 353, 369-370 (N.D. Ill. 1983) (citing
Franks v. Delaware, 438 U.S. 154, 155 (1978)).
Plaintiffs claim that the federal defendants’ entry into their home was unlawful
because the federal defendants knew that the “warrant permitting entry to the home
. . . was based on unsubstantiated facts.” (Pls.’ Third Am. Compl. ¶ 61.) Plaintiffs do not
allege what those unsubstantiated facts8 were or that the federal defendants

8

Plaintiffs have only alleged that the warrant was based on unsubstantiated
facts. They have not alleged that the statements in the warrant or in the affidavit
supporting it were false. The warrant only needed to show that there was a “probability
or substantial chance of criminal activity, not a certainty that a crime was committed.”
19

intentionally, knowingly, or recklessly made material false statements or omissions to
the judicial officer who issued the warrant. Plaintiffs’ allegation that the warrant was
based on “unsubstantiated facts” is a legal conclusion that the court need not accept as
true at the pleading stage. Iqbal, 129 S. Ct. at 1949. Beyond that, plaintiffs do not make
any allegations about why the warrant was not valid. The failure to allege the false or
misleading statement or omission that was material to the judicial officer’s decision to
issue the warrant can justify dismissal of a claim. See e.g., Flores v. Walgreen Co.,
No. 08-C-7419, 2010 U.S. Dist. LEXIS 104664 (N.D. Ill. Sept. 30, 2010). This is not like an
excessive force claim in which it is difficult for plaintiffs to identify who threw which
punch when they are being seized. For this claim, plaintiffs have access to the warrant
and could and should have given some indication as to which facts in the warrant and
its supporting affidavit they allege to be false. Accordingly, the federal defendants’
motion to dismiss plaintiffs’ Bivens claim for unlawful entry (Count X) will be granted
without leave to amend.
D.

Equal Protection Class of One (Count V)

The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits state action that discriminates against an individual on the basis
of membership in a protected class or that irrationally targets an individual for
Beauchamp, 320 F.3d at 743. Probable cause may be established by the complaint of a
single witness or victim unless that complaint would be suspicious to a reasonable
officer. Id. Therefore, if the plaintiffs are attempting to argue that the warrant was based
on a witness’s testimony that was unsubstantiated by other evidence, their claim of
excessive force is even more speculative.
20

discriminatory treatment as a so-called “class of one.” See Engquist v. Oregon Dep’t of
Agric., 553 U.S. 591, 602-03 (2008); Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The Seventh Circuit has explained that:
A class of one equal protection claim may be brought where (1) the
plaintiff alleges that he has been intentionally treated differently from
others similarly situated and (2) that there is no rational basis for the
difference in treatment or the cause of the differential treatment is a
‘totally illegitimate animus’ toward the plaintiff by the defendant.
McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).
The federal defendants argue that plaintiffs have insufficiently alleged a claim of
equal protection class of one because they have not identified other individuals who
were similarly situated to Roy Goodman, Jr. and because they have not alleged the
specific illegitimate animus that the differential treatment was based on. (DE # 135 at 8.)
Plaintiffs respond that they are not required to name the other similarly situated people
at the motion to dismiss stage. (DE # 147 at 5.) They further argue that they did not
need to allege an illegitimate animus because their claim is based on the premise that
the federal defendants had no rational basis for their differential treatment of Roy
Goodman, Jr.9 (Id. at 5.)

9

Some Seventh Circuit decisions have held that a claim of equal protection class
of one can only be based on illegitimate animus. Srail v. Vill. of Lisle, Ill., 588 F.3d 940,
945 (7th Cir. 2009) (“At times, we have held that a class-of-one claim's absence of
rational basis requires proof of illegitimate animus, while at other times, we have held
that a class-of-one claim requires illegitimate animus as an alternative to the absence of
rational basis.”). However, the court does not need to address this issue as plaintiffs
have not sufficiently alleged intentional differential treatment and the existence of
similarly situated individuals.
21

Plaintiffs allege that the federal agents violated the equal protection clause by
“engaging a cover-up, leading to the generation of false documentation and criminal
charges to be lodged against” Roy Goodman, Jr. (Pls.’ Third Am. Compl. ¶ 38.) They
assert that:
39.
In connection with the Equal Protection Claim, ROY GOODMAN,
JR. was treated differently by the FEDERAL AGENTS. The FEDERAL
AGENTS acted with discriminatory intent by treating ROY GOODMAN,
JR., differently, trying to cause further injury to ROY GOODMAN, JR., by
illegally generating false evidence against and criminally charging ROY
GOODMAN, JR., specifically due to the status of ROY GOODMAN, JR.,
as inter alia, a person who was involved in an incident whereby FEDERAL
AGENTS and fellow HAMMOND AGENTS illegally entered his home,
used excessive force and falsely arrested ROY GOODMAN, JR. and his
family.
40.
ROY GOODMAN, JR., was treated with ill will and/or
discriminated against with no rational basis. ROY GOODMAN, JR. was
intentionally treated differently as a result of having a potential claim and
witnessing misconduct attributable to the FEDERAL AGENTS. The
FEDERAL AGENTS acted with discriminatory intent by treating ROY
GOODMAN, JR. differently and trying to cause further injury to ROY
GOODMAN, JR. by generating false evidence against ROY GOODMAN,
JR. Further, ROY GOODMAN, JR. was similarly situated to other
individuals involved in incidents with police officers that did not have
false evidence and/or documentation created against them.
(Id. ¶¶ 39-40.) Plaintiffs then allege that on December 28, 2007, there was no reasonable
reason for the federal agents to falsify reports with respect to Roy Goodman, Jr.
(Id. ¶ 46.) They allege that the federal agents have arrested over twenty other
individuals without falsifying reports as to those individuals. (Id. ¶¶ 41-43.)
Plaintiffs’ claim of equal protection class of one against the federal defendants is
not sufficient to state a claim upon which relief can be granted. First, most of the claim
is merely a recitation of the elements of a claim of equal protection class of one and this
22

cannot satisfy the requirements of RULE 8. Brooks, 578 F.3d at 581 (interpreting Iqbal as
“admonishing those plaintiffs who merely parrot the statutory language of the claims
that they are pleading . . . rather than providing some specific facts to ground those
legal claims”).
Second, plaintiffs’ allegations of intentional differential treatment of Roy
Goodman Jr. do not rise above the level of speculation. Plaintiffs allege that the federal
agents treated Roy Goodman, Jr. differently by generating false evidence and false
reports against him and by criminally charging him. However, plaintiffs do not say
what false reports or false evidence was generated against Roy Goodman, Jr. They do
not allege that these reports and evidence were generated after the seizure on
December 28, 2007. Defendants are not on notice of what they are defending themselves
against because they do not know what type of false evidence or reports they are
alleged to have created. Plaintiffs state that the federal agents intentionally treated Roy
Goodman Jr. differently, but they do not allege that the federal agents intentionally
created false reports or evidence against him. Plaintiffs have not alleged any facts
indicating that the federal defendants intentionally treated Roy Goodman Jr. differently.
White v. City of Waukegan, No. 10-C-6454, 2011 U.S. Dist. LEXIS 65250, at *8 (N.D. Ill.
June 20, 2011). The allegations here are vague, convoluted, and speculative and do not
put the federal defendants on notice of what they are defending themselves against.
Even more, to survive a motion to dismiss, a claim of equal protection class of
one must identify similarly situated individuals. LaBella Winnetka, Inc. v. Vill. of
Winnetka, 628 F.3d 937, 942 (7th Cir. 2010). To be similarly situated, “comparators must
23

be prima facie identical” to the plaintiff “ in all relevant respects.” Srail v. Vill. of Lisle,
Ill., 588 F.3d 940, 945 (7th Cir. 2009) (internal quotations omitted). Plaintiffs’ claims of
similarly situated individuals are based on pure speculation. They claim that the federal
defendants have arrested twenty individuals without falsifying reports as to those
individuals. Plaintiffs make no allegations that these people are in any way similar to
Roy Goodman Jr. It is not clear that these people have been identified in any concrete
way beyond plaintiffs’ speculation that the federal agents each must have arrested
twenty people without making false reports.
Further, plaintiffs do not allege that all of the federal agents generated the false
documentation and criminal charges against Roy Goodman Jr. Instead, they allege that
the federal agents engaged in “a cover-up, leading to the generation of false
documentation and criminal charges” against Roy Goodman Jr. Therefore, the
complaint does not allege that all of the individual federal defendants participated in
the differential treatment of Roy Goodman Jr. For all these reasons, this claim will be
dismissed without leave to amend.
E.

Qualified Immunity

The court has already dismissed the unlawful entry claim so it need only
determine if the defendants are entitled to qualified immunity as to plaintiffs’ excessive
force claim. In order for plaintiffs to defeat a qualified immunity defense at the motion
to dismiss stage, they must meet two requirements: “the complaint must adequately
allege facts that, if true, would constitute a violation of a constitutional right, and (2) the
case law must be ‘clearly established’ at the time of the alleged violation, so that a
24

reasonable public official would have known that his conduct was unlawful.” KiddyBrown v. Blagojevich, 408 F.3d 346, 353 (7th Cir. 2005) (quoting Delgado v. Jones,
282 F.3d 511, 515-16 (7th Cir. 2002)). The plaintiff has the burden to “prove that a right
was clearly established at the time of the conduct at issue.” Id. As stated earlier, since
the case is at the motion to dismiss stage, all allegations in the pleadings must be
viewed in the light most favorable to the plaintiffs. Id. at 355.
The federal defendants urge the court to consider the warrant issued in this case
and Agent Adam Clark’s affidavit supporting it. (DE # 148 at 4.) They argue that the
affidavit establishes that the search warrant issued in this case was a “high risk” search
warrant that justified the use of flash-bang grenades. (Id.) The federal defendants argue
that these documents can be considered at the motion to dismiss stage because they are
matters of public record referred to in the plaintiffs’ complaint. (DE # 135 at 10.)
Plaintiffs argue that they have alleged that the information in the affidavit is falsified
and that the federal defendants cannot use an allegedly falsified affidavit that is outside
of the pleadings to support a motion to dismiss. (DE # 147 at 8.)
The federal defendants rely upon General Electric. Capital Corporation v. Lease
Resolution Corporation, for their argument that the affidavit should be considered. 128
F.3d 1074, 1080 (7th Cir. 1997). In that case the Seventh Circuit noted that courts
commonly take judicial notice of matters of judicial records while ruling on motions to
dismiss. Id. However, the Seventh Circuit cautioned that courts cannot automatically
take judicial notice of any document within a court’s record. Id. Instead a court taking
judicial notice of facts contained in a document outside of the pleadings must strictly
25

adhere to the requirements of FEDERAL RULE OF EVIDENCE 201(b) for taking judicial
notice. Those requirements are that the fact subject to judicial notice must be both “‘not
subject to reasonable dispute’ and either 1) ‘generally known within the territorial
jurisdiction of the trial court’ or 2) ‘capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.’” Id. (citing FED. R.
EVID. 201(b)). In this case, plaintiffs argue that the information in Agent Clark’s affidavit
is falsified. (DE # 147 at 8.) While the court has already found that plaintiffs’ complaint
does not allege that the warrant included intentional misrepresentations, it will still
accept that the affidavit and the warrant are in dispute. Therefore, it will not consider
them in evaluating the motion to dismiss.
The court evaluates whether force was unreasonable so as to violate plaintiffs’
Fourth Amendment rights by evaluating the situation from “the perspective of a
reasonable officer on the scene.” Graham, 490 U.S. at 394. The Seventh Circuit has stated
that flash-bang devices may not be appropriate in every case, or even in most cases.
Estate of Escobedo v. Bender, 600 F.3d 770, 784 (7th Cir. 2010); Molina v. Cooper,
325 F.3d 963, 973 (7th Cir. 2003). Their use can be reasonable if the officers have concern
for their personal safety because they know that the defendant is dangerous and has
access to a weapon and if the officers know that there is not a risk to other people. Id. In
this case, plaintiffs allege that the federal defendants violated their Fourth Amendment
rights by throwing flash grenades and smoke bombs into their home and by striking
and restraining them. They allege that the use of flash-bang grenades was unjustified
because plaintiffs did not resist arrest or threaten the defendants. They also allege that
26

the federal defendants did not have probable cause to believe that Roy Goodman Jr.
committed criminal activity. Therefore, plaintiffs have plausibly alleged that their
constitutional rights were violated, but this is a very close call. In Molina, the Seventh
Circuit determined that the use of flash devices did not rise to the level of a
constitutional violation when the officers had information that the plaintiff had a
criminal record that included aggravated assault, that he was at home, and that he had
access to a weapon. 325 F.3d at 973. The court also noted that the flash-bang devices
were not used in the presence of the other people in the home. Id. At this point the
allegations are that the situation here was not high-risk. Once the facts of this case are
fleshed out a little more, this may very well turn out to be case in which the use of flashbang grenades was reasonable.
The next question is whether plaintiffs have met their burden of establishing that
the constitutional rights at issue were clearly established at the time of the conduct.
Escobedo, 600 F.3d at 779. Plaintiffs have not made any attempt to establish that their
right to not be shoved, grabbed, or restrained was clearly established. They only
attempt to establish that their right not to have tear gas or flash-bang grenades used
against them. (DE # 147 at 7.) Therefore, the federal defendants are entitled to qualified
immunity as to their alleged actions of shoving, grabbing, and restraining plaintiffs.
Also, nowhere in the complaint do plaintiffs allege that tear gas was used against them.
Therefore, following plaintiffs’ lead, the court will focus on whether the right to be free
of flash-bang grenades was clearly established.

27

In Escobedo the Seventh Circuit determined that it had indicated in dicta in 2003
that the use of a flash-bang grenades may only be reasonable when there is “a
dangerous suspect and a dangerous entry point for the police, when the police have
checked to see if innocent individuals are around before deploying the device, when the
police have visually inspected the area where the device will be used and when the
police carry a fire extinguisher.” 600 F.3d at 784-85 (citing United States v. Morris,
349 F.3d 1009 at 1012 n.1 (7th Cir. 2003)).
Here, plaintiffs allege that they were not evading arrest, that they were not
homicidal, that they did not pose a threat, and that they had not committed a crime. The
federal defendants were attempting to arrest Roy Goodman Jr. and as stated above, the
plaintiffs have not sufficiently alleged that the warrant to search his home was invalid.
However, the court can not consider the warrant and Agent Clark’s supporting
affidavit, so it cannot find that Goodman was considered dangerous at this time. Taking
the allegations in the light most favorable to plaintiffs, the right against flash-bang
grenades was clearly established. This finding may change at a later stage when the
court can consider information beyond the complaint.
F.

Claims against the United States (Count XI)

The federal defendants have moved for dismissal of Count XI against the United
States of America. (DE # 135 at 14.) Plaintiffs do not object to the dismissal of this count.
(DE # 147 at 9.) Therefore Count XI will be dismissed from the third amended
complaint and the United States of America will be dismissed as a defendant.

28

IV.

CONCLUSION
For the foregoing reasons, the federal defendants’ motion to dismiss (DE # 135) is

GRANTED. However, plaintiffs have 30 days after entry of this order to file an
amended complaint to address the deficiencies identified with regard to Count I and
Count VIII of the complaint. The excessive force claim in Count I is limited to the use of
the flash-bang grenades because the federal defendants have qualified immunity for
their use of the other means of force. The conspiracy claim in Count VII is limited to a
conspiracy related to the use of excessive force. Count V and Count X are DISMISSED
without leave to amend. The claim against the United States of America is DISMISSED
so the United States of America is DISMISSED as a defendant in this case and FINAL
JUDGMENT will be ENTERED in its favor. The federal defendants’ motion for a
summary ruling (DE # 142) is DENIED.
SO ORDERED.
Date: July 25, 2011
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT