United States District Court, N.D. Illinois
February 23, 2004.
ANTONIO J. DELGADO and JAVIER M. DELGADO, Plaintiffs,
VILLAGE OF ROSEMONT, ARTHUR VLACHOS, JOSE JIMENEZ, BRIAN MINEVICH, and D. HAUSER, Defendants
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.
II. MOTION TO DISMISS
A. Standard of Review
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 failed to state a claim. However, here plaintiff has
also alleged that the actions of other policymakers evince a widespread
custom of disciplining or terminating employees who speak out on matters
of public concern."); Murray v. City of Chicago, 2003 U.S. Dist. LEXIS
11806 *9 (N.D. Ill. 2003) (plaintiff does not even need to specify a
custom or practice, provided complaint "contains sufficient allegations
to allow the City to understand the gravamen" of claim).
Here, Plaintiffs clearly allege the existence of several customs or
practices that they believe condoned violations of their civil rights.
Plaintiffs also put Defendants on notice as to the specifics of their
claims the events of October 4, 2002, and Plaintiffs' subsequent
prosecution. Therefore, at this stage, Plaintiffs' Count II claim against
Rosemont survives on these grounds.
On different grounds, Defendants also challenge Plaintiffs' Count II
claim that Rosemont is liable for Individual Defendants' conduct under a
failure to properly train theory. Defendants argue that municipalities
face § 1983 liability stemming from a failure to train only when that
failure amounts to deliberate indifference to the rights of those whom
the police come into contact. City of Canton v. Harris, 489 U.S. 378,
Although Defendants enunciate the law properly, their argument still
fails because Plaintiffs' complaint meets the necessary pleading
requirements. Specifically, the complaint states that "the aforementioned
policies, practices, and customs individually or together have been
maintained and/or implemented with deliberate indifference by the Village
of Rosemont." Defendants do not meet their burden of showing that
Plaintiffs' "can prove no set of facts in support of [their] claims which
would entitle [them] to relief." Conley, 355 U.S. at 45-46.
C. Count VI (Intentional Infliction of
Defendants also contest Plaintiffs' claims for intentional infliction
of emotional distress. Defendants argue that, under applicable Illinois
law, while a pattern of acts can give rise to this tort, a single event
cannot. In doing so, Defendants' misconstrue Illinois law. Defendants'
case citations concern claims such as harassment, in which a single
violation would cause too little harm to constitute intentional
infliction of emotional distress, but repeated serial conduct might
when viewed collectively. However, Illinois also holds that a single
incident of sufficiently outrageous conduct can qualify as intentional
infliction of emotional distress. Kolegas v. Heftel Broadcasting Corp.,
154 111.2d 1, 22 (1992)(single incident of radio personalities ridiculing
individual qualified as
intentional infliction of emotional distress). Here, Plaintiffs allege
that Defendants, among other things, savagely and publicly engaged in the
excessive use of force against them. This certainly meets the Illinois
threshold that the questioned conduct "be so extreme as to go beyond all
possible bounds of decency and be regarded as intolerable in a civilized
community." Feltmeier v. Feltmeier, 207 Ill.2d 263, 274 (2002).
Therefore, Defendants motion as to Count VI (Intentional Infliction of
Emotional Distress) is denied.
D. Count VII (Raspondeat Superior)
Defendants challenge Count VII on the grounds that it improperly seeks
to hold Rosemont liable for the 42 U.S.C. § 1983 torts allegedly
committed by Individual Defendants. In response, Plaintiffs' deny that
Count VII applies to their federal claims, insisting that they seek only
to hold Rosemont liable for the Individual Defendants' state tort
violations. Since Defendants do not contest Count VII legitimacy as to
the state tort claims, the Court denies Defendants' motion to dismiss
this claim. However, the Court will hold Plaintiffs' to its agreed
interpretation that Count VII does not concern any 42 U.S.C. § 1983
E. Count VTII (Indemnification)
Defendants also seeks to dismiss Plaintiffs' Count VIII, which demands
that Rosemont indemnify Individual Defendants for
their liability. Defendants make a meritorious argument. To acquire
standing in federal court, a plaintiff must demonstrate: (1) an injury
that is concrete, particularized, and actual or imminent rather than
conjectural or hypothetical; (2) a causal connection between the injury
and the challenged conduct; and (3) a likelihood that the injury will be
redressed by a favorable decision. Perry v. Sheahan, 222 F.3d 309, 313
(7th Cir. 2000). Here, Plaintiffs' fail to satisfy even the first
criteria. Plaintiffs' Count VIII seeks to remedy the highly theoretical
injury: that Plaintiffs will win a jury verdict against the Individual
Defendants, and that the jury will award them such a large amount of
money that the Individual Defendants will find themselves unable to fully
satisfy the judgment. Since Plaintiffs have not demonstrated that Count
VIII concerns a present case or controversy, Count VIII is dismissed.
III. SUMMARY JUDGMENT
A. Standard of Review
Summary judgment is appropriate if ""the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. Civ. P. 56(c). A fact is "material" if it could
affect the outcome of the suit under the governing law; a dispute is
the evidence is such that a reasonable jury could return a verdict for
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The burden is initially upon the movant to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 311,
323 (1986). Once the moving party has met its burden, the nonmoving party
"may not rest upon the mere allegations" contained in its pleading, but
rather "must set forth specific facts showing that there is a genuine
issue for trial." FED. R. Civ. P. 56(e); Backer v. Tenenbaum-Hill Assoc.,
Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroecter v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
B. Count VI (Malicious Prosecution)
Under Illinois law, a plaintiff pursuing a malicious prosecution claim
must prove: (1) The commencement or continuance of an original criminal
or civil judicial proceeding by the defendant; (2) The termination of the
proceeding in favor of the plaintiff; (3) The absence of probable cause for
such proceeding; (4) The presence of malice; and (5) Damages resulting to
the plaintiff. Swick v. Liautaud, 169 Ill.2d 504, 512 (1996).
Here, Defendants note that although both Plaintiffs were acquitted on
the battery charges, each of them got convicted for
resisting a peace officer. Defendants contend, and Plaintiffs do
not dispute, that both charges were predicated upon the same underlying
factual allegations that Antonio Delgado punched Vlachos in the
face, and Javier Delgado punched Jimenez in the chest. Since the jury
found both Plaintiffs guilty of one of the crimes arising out of
this allegation, Defendants argue that as a matter of law, probable cause
must have existed to prosecute Plaintiffs for battery.
Plaintiffs responds by asking that the Court enter and continue
Defendants' motion until after a criminal court decides the merits of
their criminal appeals. Plaintiffs' reply brief, dated January 2, 2004,
states that a criminal court was scheduled to hear their appeal on
February 6, 2004. To date, the Court has not heard further from
Plaintiffs as to whether their appeal succeeded, failed, or has yet to be
decided. Therefore, on this motion the Court today issues only a
conditional ruling, to be further clarified upon learning the results of
Plaintiffs' criminal appeal. If Plaintiffs' criminal appeal has
succeeded, the basis for Defendants' summary judgment motion ceases to
exist, and therefore the Court denies it. Likewise, if Plaintiffs'
criminal appeal has already failed, then Defendants' summary judgment
motion must be granted as Plaintiffs have failed to contest it on any
other ground. They certainly have not met their summary judgment burden
of setting forth "specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
However, if the criminal court has not yet issued a final order
concerning the fate of Plaintiffs' criminal appeals, the Court stays a
final ruling on this motion until after such a decision is made, at which
time it will order results consistent with this opinion.
For the reasons stated herein, the Defendants' Motion to Dismiss is
granted in part and denied in part as follows:
1. Defendants' Motion to Dismiss Counts II, VI (Malicious Prosecution),
and VII is denied.
2. Defendants' Motion to Dismiss Count VIII is granted,
3. Defendants' Motion for Summary Judgment as to Count VI (Malicious
Prosecution) is granted.
IT IS SO ORDERED.
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