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GONZALEZ v. BABASA

May 15, 2003

MARIA GONZALEZ AND ARTURO RODRIGUEZ, PLAINTIFFS,
v.
RODEL BABASA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Paul E. Plunkett, Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Before the Court are several motions: (1) defendants' motion to dismiss the complaint against all defendants for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6); (2) defendants' motion to dismiss the complaint against certain of the defendants pursuant to Rule 4 for failure of service of process; (3) defendants' motion for summary judgment pursuant to Rule 56(c) as to three of the defendants; and (4) plaintiffs' motion to conduct discovery pursuant to Rule 56(f). For the reasons stated below, the motions are granted in part and denied in part.

I. Background

Plaintiffs, Maria Gonzalez and Arturo Rodriguez, have filed a complaint against the individual defendants, fourteen agents of the Drug Enforcement Administration of the United States ("DEA"), for violations of plaintiffs' constitutional rights. The complaint, which is brief, alleges the following facts. Plaintiffs reside on the third floor of a building owned by Gonzalez, located at 2850 South Millard in Chicago. On October 14, 2000 at approximately 3:00 p.m., plaintiffs were in the first floor apartment of the building. At that time, without warning or notice and with guns drawn, some DEA agents entered the first floor apartment by knocking down the front door. Some of the defendants entered the kitchen, where they found Rodriguez, handled him roughly and pushed him into another room. Defendants then hit Rodriguez in the chest and face, kicked him and handcuffed him for at least one hour.

When Gonzalez entered the kitchen, DEA agents pushed her into a door causing her to fall and injure her knees. Defendants searched Gonzalez's residence and building, remaining in the building for approximately four to five hours. While defendants remained at 2850 South Millard, neither Rodriguez nor Gonzalez was allowed to use the bathroom or the telephone, or leave the first floor room in which defendants had placed them. Defendants made Gonzalez's children stay in a separate room. Defendants left the property without arresting either of the plaintiffs, but they did ransack Gonzalez's apartment and took some of her personal belongings. When defendants left, plaintiffs "found a search warrant" for the first floor apartment at 2850 South Millard. The subject of the warrant was described as a Hispanic male in his early forties. No one matching the description was present while defendants searched the building.

The plaintiffs allege they have suffered physical and emotional pain and trauma because of defendants' unjustified actions. They have filed a Bivens*fn1 action against defendants, alleging that defendants conspired to and did deprive plaintiffs of their constitutional rights as protected by the Fourth and Fifth Amendments to the U.S. Constitution. Defendants have filed three motions and plaintiffs have filed one. The motions are discussed separately below.

II. Defendants' Rule 12(h)(6) Motion to Dismiss

All of the defendants have moved to dismiss the claims against them pursuant to Rule 12(b)(6) because the complaint groups the defendants together when establishing the basis for the claims rather than identifying by name the particular defendant who participated in the particular conduct. For example, instead of alleging that defendants Smith, Jones and Black*fn2 handcuffed Rodriguez or that defendants Smith and Jones pushed Gonzalez, the complaint alleges that "the defendants" handcuffed Rodriguez for at least one hour and that "DEA agents" pushed Gonzalez into a door. (Compl. ¶ 15, 18.) Defendants assert that the plaintiffs are required to allege which individual defendants engaged in the individual acts described in the complaint. Because the complaint lacks such specificity, argue the defendants, it should be dismissed.

We disagree. On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiffs favor. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). No claim will be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In order to state a cause of action under Bivens, "plaintiff[s] must allege facts which show that the individual defendant was personally involved in the deprivation of the plaintiff[s'] constitutional rights." Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997) (citing Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 1994)). The "personal involvement" requirement is met when an individual "acts or fails to act with a deliberate or reckless disregard of plaintiffs constitutional rights, or if the conduct causing the constitutional deprivation occurs at [his] direction or with [his] knowledge and consent." Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 1994) (citation omitted). We do not find it fatal to plaintiffs' complaint that they have failed to identify at this time the particular defendant or defendants who hit and kicked Rodriguez, pushed Gonzalez or carried out the other acts described in the complaint. Although this Court has in the past required plaintiffs to match incidents and defendants, see Markham v. White, 1995 WL 669643 (N.D. Ill. Nov. 8, 1995), we do not find the requirement appropriate in these circumstances when we can imagine that plaintiffs had no opportunity at the time of the incident to get to know the individual defendants. See Okoro v. Bohman, 2001 WL 1098041, at *2 (N.D. Ill. Sept. 14, 2001) (allowing case against Chicago police officers and federal DEA agents to go to trial even though plaintiffs could not identify which defendant specifically engaged in which act and plaintiffs learned the names of the defendants only through discovery efforts).

In addition, a defendant may not be able to escape liability for certain conduct simply because he did not physically act himself. Under certain circumstances, liability in a civil rights action can stem from the failure to intervene. See Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972) (finding that nonsupervisory police officers may be liable for civil rights violations when they fail to stop other officers).

We are required to construe pleadings liberally and will not dismiss for vagueness or lack of detail. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Rule 8 requires a short and plain statement of the claim that will give the defendant fair notice of the principal events. Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). That is precisely what plaintiffs' complaint does. Although it may be that as defendants argue, not all of the defendants were involved in every act, such as handcuffing Rodriguez, or that some of the defendants may avoid liability based on qualified immunity, these details are more appropriately addressed at a later proceeding. Tuite v. Henry, 1994 WL 55711, at *3-4 (N.D. Ill. Feb. 22, 1994) (discussing Seventh Circuit decision of Triad Assocs., Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993)). As the case proceeds, plaintiffs will be able to identify which defendants engaged in which activity.

The same analysis holds true for the plaintiffs' conspiracy allegation. To support a conspiracy claim, plaintiffs must allege "facts [that] support an agreement between the defendants." Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991). There must be some kind of "meeting of the minds" among the participants — "a whiff of the alleged conspirators' assent". Id. "A complaint inadequately alleges conspiracy when the facts it alleges are vague, conclusionary and include no overt acts reasonably related to the promotion of the alleged conspiracy." Id. (citing Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975)). We find that plaintiffs have alleged the requisite "meeting of the minds" and "overt act" requirement of the conspiracy.

III. Defendants' Motion to Dismiss for Failure to Comply with Rule 4
Defendants seek to dismiss the complaint as to nine of the defendants on the grounds that plaintiffs have failed to comply with the 120-day service requirements of Rule 4. Rule 4 provides for service of the summons and complaint on a defendant within 120 days of filing the complaint. Fed.R.Civ.P. 4(m). If service has not been made in that period of time, "the court . . . shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time. . . ." Id. If a plaintiff can show good cause for the failure to comply with the 120-day requirement, "the court shall extend the time for service for an appropriate period." Id. Plaintiffs filed their complaint on September 25, 2002. Their 120 days ran out on January 23, 2003. On January 27, 2003, in the Joint Status ...

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