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DELGADO v. VILLAGE OF ROSEMONT

February 23, 2004.

ANTONIO J. DELGADO and JAVIER M. DELGADO, Plaintiffs,
v.
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 Page 3 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.

I. BACKGROUND

  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. Page 4 Jimenez and Vlachos continued to use excessive force against Delgado while Delgado was on the ground, and defendant Hauser soon arrived on the scene.

  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 Page 5 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 § 1983 Torts)
  A plaintiff establishes municipal liability for a violation of his civil rights when he shows that: (1) the municipality had Page 6 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. 2000).

  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 Page 7 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 municipal Page 8 custom on nothing more than her own experience, the court would agree that she would have ...


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