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FARRAR v. YAMIN

April 14, 2003

NONA FARRAR, PLAINTIFF,
v.
GEORGE YAMIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ruben Castillo, United States District Judge

MEMORANDUM OPINION AND ORDER

Nona Farrar ("Farrar") filed this lawsuit in state court alleging a number of constitutional and state law violations by various defendants in their official and individual capacities, including the City of Chicago ("City"), several attorneys employed by the City, and unnamed members of the Chicago Police Department ("CPD"), Chicago Fire Department ("CFD") and the Office of Emergency Communications ("OEC"). The defendants subsequently removed the case to federal court pursuant to 28 U.S.C. § 1331. This matter is currently before the Court on Defendants' motions to dismiss Plaintiff's second amended complaint and to impose sanctions under 28 U.S.C. § 1927. Because we find that Farrar fails to state a claim against Defendants for which relief can be granted, Defendants' motion to dismiss is granted. (R. 26-1.) Defendants' motion to impose sanctions is denied. (R. 32-1.)

RELEVANT FACTS

This lawsuit arises out of a previous suit Farrar filed against the City and various City employees alleging violations of her civil rights ("Farrar I"). (R. 21, Compl. ¶ 1.) Farrar I was ultimately dismissed pursuant to Federal Rule of Civil Procedure 27 after Farrar failed to comply with discovery requests. This dismissal was subsequently affirmed on appeal. Farrar v. City of Chi., No. 02-2727, 2003 WL 1796007, at *2 (7th Cir. Mar. 27, 2003). In her current complaint before this Court, Farrar alleges that Defendants engaged in misconduct during court-ordered discovery proceedings in Farrar I. While these allegations appear to form the bulk of her complaint, we do not address them in this opinion. Farrar had the opportunity to raise these claims in her appeal of the disposition of Farrar I. To the extent she failed to do so, she has forfeited her right to litigate them. See, e.g., Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207, 1212 (7th Cir. 1993).

The remaining allegations before us concern the destruction of five audiotapes Farrar requested from the OEC prior to filing Farrar I. The tapes recorded emergency calls made to the City's 911 emergency line; it was Farrar's intention to use the tapes as evidence in her suit. (Id. at ¶¶ 1-2.) Farrar sent a written request, apparently to the CFD, that five specific emergency call tapes be preserved; defendant Phil Stelnicki ("Stelnicki"), a CFD employee, subsequently confirmed that he directed the OEC to do so. (Id. at ¶¶ 2-3). Farrar requested the tapes within the thirty-day tape retention period set by the OEC; after thirty days, emergency call tapes are destroyed or reused by OEC staff. (Id. at ¶¶ 16-17.)

After requesting the tapes, Farrar learned that they either had been destroyed or erased. (Id. at ¶ 4.) During depositions of various city personnel in Farrar I, Farrar was unable to obtain information as to how or why the tapes had been destroyed. (Id. at ¶ 5.) She alleges in her current suit that Defendants either conspired together to prevent her from obtaining the information she needed from the tapes, or failed to stop the conspiracy, because she had successfully litigated against the City previously, and because she was "black, pro-se and female." (Id. at ¶¶ 100, 104, 109, 111.)

Farrar also alleges that unnamed Defendant City policymakers limited the emergency call retention tape period to thirty days specifically to frustrate plaintiffs and to avoid liability for the actions of City personnel. (Id. at ¶¶ 26, 29.) In addition, she claims that the OEC's practice of requesting detailed information on emergency vehicles from individuals inquiring about specific emergency vehicle response runs is unreasonable and designed to frustrate potential plaintiffs. (Id. at ¶ 33.) The OEC apparently requests this information so that it can better identify the vehicles in question and resolve any confusion over the exact emergency calls to which they were responding. (Id.) Farrar claims that OEC personnel. should be trained to "work around" an inability to provide this information in the interests of preserving her right to procedural due process. (Id.)

Currently before the Court are Defendants' motions to dismiss and to impose sanctions.

LEGAL STANDARDS

A motion to dismiss shall not be granted unless the court, taking all well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff, finds no cause of action for which relief may be granted. Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7th Cir. 1998). "A complaint or part of a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.

Sanctions under 28 U.S.C. § 1927 are appropriate when a lawyer, or anyone else admitted to practice in a court, multiplies proceedings with bad intent, or "when objectively unreasonable litigation-multiplying conduct continues despite a warning to desist." Alexander v. United States, 121 F.2d 312, 315-16 (7th Cir. 1997).

ANALYSIS

In addition to several state claims (Counts X — XII), Farrar asserts federal claims under 42 U.S.C. § 1983 (Counts I, II, V, VI, VII and IX), 1985 (Counts III and VIII) and 1986 (Count IV), alleging that the destruction of the five emergency audiotapes violated her First, Fourth and Fourteenth Amendment rights, and that some or all Defendants conspired to prevent the exercise of her constitutional rights.

I. Farrar's 42 U.S.C. § 1983 Claims: Counts I, II, V, VI, VII, and IX

In order to prevail on a ยง 1983 claim, a plaintiff must show that "(1) [she] held a constitutionally protected right; (2) [she was] deprived of this right in violation of the Constitution; (3) the defendants intentionally caused this deprivation; and (4) the defendants acted under ...


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