United States District Court, N.D. Illinois
February 17, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
(Reserved for use by the Court)
MEMORANDUM OPINION AND ORDER
Plaintiff, James Maloney, filed pro se a 12-count, second amended
complaint pursuant to 42 U.S.C. § 1983 and 1985(2), naming as
defendants, August Pehlke, individually and in his official capacity as a
police officer for the City of Sterling (City), Frank Hope, individually
and in his official capacity as a police officer for the City, James
Juarez, individually and in his official capacity as a police officer for
the City, the Sterling Police Department, and the City itself. All claims
are related to either an alleged incident involving plaintiff's arrest or
actions taken by defendants to prevent the subsequent pursuit of this
lawsuit. Defendants have moved to dismiss all counts pursuant to
The court grants the motion to dismiss as to the Sterling Police
Department as it is not a legal entity separate from the City. See
West v. Waymire, 114 F.3d 646 (7th Cir. 1997).
The court denies the motion to dismiss based on lack of subject matter
jurisdiction as the second amended complaint sufficiently identifies its
federal question jurisdictional basis.
The next issue is whether the City should be dismissed for failure to
allege the existence of an official policy or custom linked to
plaintiff's alleged constitutional harms. While a complaint does not fail
to state a claim merely because it does set forth a complete and
convincing picture of the alleged wrongdoing, and such standard is to be
vigilantly applied to a pro se complaint, a complaint must set forth
sufficient facts to put a municipality on notice of the claim against
it. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). A
municipality may not be held liable under section 1983 based on a theory
of respondeat superior, and a plaintiff must allege the existence of a
policy or custom of the municipality itself. Latuszkin v. City of
Chicago, 250 F.3d 502, 504-05 (7th Cir. 2001).
Here, plaintiff, after several attempts, has merely alleged, in
boilerplate fashion, the existence of an "official policy or custom" but
has not alleged that it was one linked to the City or that any of the
individual actors were policymakers for the City. Thus, the court grants
the motion to dismiss as to all counts directed against the City.
Similarly, the court dismisses all claims against the officers in their
official capacities as an official capacity suit is the same as one
against the City. See DeGenova v. Sheriff of DuPage County, 209 F.3d 973,
975 n. 1 (7th Cir. 2000).
The court next addresses the claims brought in counts 8-12. While
plaintiff does not specify as to counts 8-10 which section of
42 U.S.C. § 1985 he relies on, he states in his response brief that they
are all based on section 1985(2) (including count 12 which
typographically refers to section 1982(2)). He further states in his
response brief that all of the section 1985 counts "implicitly allege
The "implication" in counts 8-12 is that the various defendants
destroyed evidence and took action to intimidate plaintiff in an effort
to keep him from pursuing this federal action. To state a claim under
section 1985(2), a plaintiff must allege: (1) a conspiracy among the
defendants, (2) to injure a party or witness in his person or property,
(3) because he or she attended or testified in a federal court, and (4)
resulting in injury or damages. Saniat v. City of Chicago, 2003 WL
22964373, * 3 (N.D. Ill. Dec. 16, 2003) (citing Wright v. Illinois Dept.
of Children and Family Services, 40 F.3d 1492 (7th Cir. 1994)).
Plaintiff's claims in this case, as embodied in counts 8-12, fail to
allege a cause of action under section 1985(2). First, there are no
express allegations of conspiracy in counts 8-12, nor can they be
inferred from the existing allegations. Second, there are also no
allegations of any design to injure any party or witness in their
property or person. Finally, it is not apparent what injury or damage
would have been suffered by plaintiff as he has obviously not been
intimidated nor backed off of his pursuit of this lawsuit. As for count 8
which alleges destruction of a supposedly exculpatory tape recording of a
witness interview, plaintiff has not been injured as he still has the
option of deposing both the witness and Pehlke who conducted the
interview. Further, plaintiff has not alleged how destruction of the tape
would support a claim under section 1985(2). For all these reasons, the
court grants the motion to dismiss as to counts 8-12.
That leaves counts 1-7 under section 1983 against the individual
defendants only. Count I is dismissed as the mere allegation that Pehlke
pointed to his gun does not state a claim for excessive force under the
Fourth Amendment or a violation of any other constitutional provision.
Count 3, which is a claim for false imprisonment under the Fourth
Amendment, is duplicative of the false arrest claim in count 4 and is,
Count 6, a claim for a "due process violation," appears to allege a
claim for malicious prosecution rather than a due process violation. See
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). Because
Illinois has a common law tort of malicious prosecution, plaintiff cannot
pursue a federal constitutional claim in that regard. McCann, 337 F.3d at
Count 7, a claim for the taking of personal property by defendants, is
dismissed as plaintiff has not alleged the inadequacy of state law
remedies nor a violation of a substantive constitutional provision other
than due process. See Gable v. City of Chicago, 296 F.3d 531, 540 (7th
Cir. 2002). The reference to the Fourth Amendment is insufficient as that
amendment does not support plaintiff's claim.
In count 5, based on excessive force under the Fourteenth Amendment,
plaintiff alleges that without justification Officer Hope repeatedly
slammed on the brakes of the squad car while transporting plaintiff after
his arrest causing him to strike the metal grating between the front and
rear seat resulting in "minor injuries." Although plaintiff has relied on
the Fourteenth Amendment as his basis for liability in count 5, he was
still under arrest as opposed to post-arrest detention at that point and
most probably the Fourth Amendment would govern his claim. See Titran v.
Ackman, 893 F.2d 145, 147 (7th Cir. 1990). Thus, the court will consider
count 5 as a Fourth Amendment claim for excessive force.
Excessive force claims related to arrest are governed by the Fourth
Amendment objective reasonableness standard. Jones v. Webb, 45 F.3d 178,
183 (7th Cir. 1995). Factors relevant to this inquiry include the
severity of me crime, whether the suspect poses an immediate threat to
the safety of the police or others, and whether he is actively resisting
or evading arrest. Jones, 45 F.3d at 184.
Here, plaintiff's allegations of excessive force during his arrest
(paragraphs 24 and 25) in count 2 and his allegation of excessive force
(paragraph 9) in count 5 are sufficient (barely) to withstand a motion to
dismiss. The factors listed above can only be assessed in light of
evidence not presently before the court. Accordingly, the motion to
dismiss is denied as to counts 2 and 5. Even assuming the claim in count
5 is governed by the Fourteenth Amendment, the motion to dismiss would
also be denied under the applicable standard for excessive force claims
by pre-trial detainees. See Wilson v. Williams, 83 F.3d 870 (7th Cir.
This leaves the claim for false arrest in count 4. The court denies the
motion to dismiss as to count 4 as the key issue, whether there was
probable cause (see DeJuriss v. McGowan, 957 F.2d 345, 349 n. 1 (7th Cir.
1992)), has been alleged and cannot be resolved at this stage of the
Lastly, the court denies the motion to dismiss as to the request for
punitive damages as the City is no longer a defendant and such damages
are potentially recoverable against the individual defendants.
In conclusion, the court grants the motion to dismiss in all respects
except the individual claims in counts 2, 4, and 5 (as modified). All
prior pending motions to dismiss are denied as moot.
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