The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge Page 2
MEMORANDUM OPINION AND ORDER
Plaintiffs Antonio Delgado and Javier Delgado (the "Plaintiffs")
brought suit against Defendants Village of Rosemont (hereinafter,
"Rosemont"), Arthur Vlachos, Jose Jimenez, Brian Minevich, and D. Hauser
(hereinafter referred to as the "Individual Defendants", and when
combined with Rosemont then as the "Defendants") alleging state law tort
claims and violations of their federal constitutional rights. Rosemont
and Individual Defendants have submitted a combined motion asking the
Court to dismiss Counts II, VI (Intentional Infliction of Emotional
Distress), VII, and VIII of Plaintiffs complaint, and grant summary
judgment as to Count VI (Malicious Prosecution). Count II claims, also
under 42 U.S.C. § 1983, that Rosemont had a policy or custom of
indifference to the use of excessive force. For reasons unclear to the
Court, Plaintiffs' complaint contains
no Count III or Count IV, but does contain two counts labeled "Count VI."
One of these Count VI's alleges that the Individual Defendants committed
the state law tort of malicious prosecution against Plaintiffs, while the
other count claims they engaged in the state law tort of intentional
infliction of emotional distress. Count VII asserts that Rosemont is
liable "for all torts" committed by the Individual Defendants under a
theory of Respondeat Superior. Lastly, Count VIII demands that Rosemont
indemnify the Individual Defendants.
The following record is mostly compiled from Plaintiffs' complaint, as
the Court must accept Plaintiffs' versions of the facts as true for
purposes of this motion. It has been supplemented by legal facts
established through the Plaintiffs' subsequent criminal convictions.
On October 4, 2002, Plaintiffs attended a concert at the Rosemont
Theater in Rosemont, Illinois. Following two minor confrontations he had
with security personnel, Individual Defendants Jimenez and Vlachos (each
dressed as security guards) confronted Javier Delgado and told him he was
being removed from the theater. Jimenez and Vlachos then escorted him out
the theater's north exit. Once outside, Jimenez grabbed Javier Delgado
from behind and, without cause, shoved him into a pillar resulting in
Javier Delgado sustaining serious bleeding.
Jimenez and Vlachos continued to use excessive force against Delgado
while Delgado was on the ground, and defendant Hauser soon arrived on the
Antonio Delgado then exited the theater, and saw what was happening to
his brother. He approached the Individual Defendants and requested that
they leave Javier Delgado alone. Vlachos responded to this request by
shoving Antonio Delgado into glass doors and hitting him. Vlachos and
defendant Minevich then took Antonio Delgado to the ground and continued
to use excessive force against him while he was on the ground.
As the Individual Defendants continued to attack the Plaintiffs, an
eyewitness called 911 and reported that the Individual Defendants were
assaulting Plaintiffs in the presence of uniformed Rosemont police
officers. Rosemont did not investigate the complaint.
Javier and Antonio Delgado were each arrested and criminally charged
with battery and resisting a peace officer. The charges of battery and
resisting a peace officer were based on the same underlying factual
allegations. Specifically, the criminal indictment alleged that Antonio
Delgado punched Vlachos in the face and that Javier Delgado punched
Jimenez in the chest. Despite this, the jury convicted both on charges of
resisting a peace officer, and acquitted both of the battery charges.
During the trial, the Plaintiffs allege that the Individual Defendants
perjured themselves to cover up their misconduct. Plaintiffs have
appealed their criminal conviction, arguing that the jury verdicts were
inconsistent and the product of improper trial court instructions.
Although a hearing on their appeal was scheduled for February 6,
2004, the Court is unaware as to whether a decision has been reached yet.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
tests whether the plaintiff has properly stated a claim upon which relief
could be granted, not whether the plaintiff will ultimately prevail on
the merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In ruling on a
motion to dismiss, a court must construe all well pleaded allegations
of the complaint as true, and draw all reasonable inferences in favor of
the plaintiff. Id. A motion to dismiss will not be granted unless it
"appears beyond doubt that the plaintiff can prove no set of facts in
support of his claims which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
B. Count II (Municipal Liability for §
A plaintiff establishes municipal liability for a violation of his
civil rights when he shows that: (1) the municipality had
an express policy that, when enforced, causes a constitutional
deprivation; (2) the municipality had a widespread practice that, although
not authorized by written law or express policy, is so permanent as to
constitute a custom or usage within the force of law; or (3) plaintiff's
constitutional injury was caused by a person with final policymaking
authority. McCormick v. City of Chicago, 230 F.3d 319
, 324 (7th Cir.
Here, Plaintiffs proceed under the second method, alleging in their
complaint that the Individual Defendants violated Plaintiffs civil rights
"pursuant to one or more de facto policies, practices and/or customs of
the Village of Rosemont." These de facto policies or customs consisted
of: (1) the failure to properly investigate allegations of police
misconduct, including excessive force; (2) the failure to properly
discipline sustained allegations of police misconduct, including
excessive force; (3) the failure to properly maintain records of police
misconduct and allegations of police misconduct, including the use of
excessive force; (4) the failure to properly hire, train, monitor and
supervise police officers; and (5) permitting a "code of silence" to
exist concerning police conduct.
Defendants argue that Plaintiffs' complaint fails to properly establish
a municipal custom. In particular, Defendants argue that Plaintiffs do
not allege instances of Rosemont police officers using excessive force
other then their own personal
experiences on October 4, 2002, and therefore cannot establish the
existence of a widespread practice condoning such misconduct. Although
the Seventh Circuit has not directly addressed this issue, Defendants'
argument does find some merit in the Northern District of Illinois. See,
Johnson v. Sandidge, 87 F. Supp.2d 832, 834-35 (N.D. Ill. 1999)(a single
incident of constitutional rights violations cannot put a municipality on
notice sufficient to impose liability); Moennich v. Metro. Pier &
Exposition Auth., 2003 U.S. Dist. LEXIS 20685 *8-9 (N.D. Ill.
2003)(conduct towards plaintiff not enough to show custom or pattern).
However, the vast majority of recent Northern District of Illinois'
opinions concur with Plaintiffs' position that, under the McCormick notice
pleading standard, a complaint need not allege specific facts evidencing a
custom of condoning widespread constitutional violations. Rather, it is
enough for a complaint to make detailed allegations concerning at least
one specific incident, and general inductive allegations concerning a
municipality's custom or practice, provided the complaint puts the
municipality on notice of the claims against it. See, Doe v. V., 2003
U.S. Dist. LEXIS 17570 *5-6 (N.D. Ill. 2003) ("Boilerplate allegations
concerning a policy or practice are sufficient to survive a motion to
dismiss."); Carpanzano v. College of Dupage, 2003 U.S. Dist. LEXIS 22004
*7-8 (N.D. Ill. 2003) ("If plaintiff had based her allegation of a
custom on nothing more than her own experience, the court would agree
that she would have ...