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WEBB v. CITY OF JOLIET

May 4, 2005.

ROBERT IUFFUES WEBB II, Plaintiff,
v.
CITY OF JOLIET, WARREN C. DORRIS, JR., DAVID L. GERDES, NICHOLAS R. AMELIO, BEN BILLUPS, ROBERT DESIDERIO, JOSEPH EGIZIO, RONALD NAGRA, KEVIN SEPULVEDO, COUNTY OF WILL, THOMAS KONZAL and DANIEL RIPPY, Defendants.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Robert Iuffues Webb II has sued the City of Joliet ("the City"), Joliet City Councilman Warren C. Dorris, Jr., Joliet Chief of Police David L. Gerdes, Joliet Police Officers Nicholas R. Amelio, Ben Billups, Robert Desiderio, Joseph Egizio, Ronald Nagra, Kevin Sepulvedo, Will County ("the County") and Will County Assistant State's Attorneys Thomas Konzal and Daniel Rippy ("the State's Attorneys") for their alleged violations of his rights under the United States Constitution and state law. Before the Court are: (1) the City, Gerdes, Dorris, Amelio, Egizio, Desiderio and Billups' ("the City defendants") Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss the claims asserted against them in Counts I, III-VI and VIII-XVI of plaintiff's third amended complaint; (2) the County and State's Attorneys' Rule 12(b)(6) motion to dismiss the claims asserted against them in Counts II, IX and XI-XV of the third amended complaint; and (3) plaintiff's motion to strike portions of the City defendants' reply brief. For the reasons set forth below, the City defendants' motion is granted in part and denied in part, the County and State's Attorneys' motion is granted in part and denied in part and plaintiff's motion to strike is denied.

Facts

  In his third amended complaint, plaintiff claims that the defendants deprived him of his First, Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. §§ 1981, 1983 and 1985(3) and that they are liable under state law for false arrest, false imprisonment, malicious prosecution, abuse of process, intentional infliction of emotional distress, defamation and negligence. All of plaintiff's claims are based on the following events, which allegedly took place at the times noted:
(1) On December 17, 1996, certain City officials placed another man's name ahead of plaintiff's on the list of citizens wishing to speak at the city council meeting, enabling that man to make slanderous comments about plaintiff at the meeting (Third Am. Compl. ¶¶ 19-23);
(2) On March 3, 1998, the City adopted Resolution 4511 limiting citizens' access to council meetings (id. ¶ 25);
(3) On April 7, 2001, defendant Amelio falsely arrested plaintiff for mob action to prevent him from exercising his First Amendment rights (id. ¶ 28);
(4) On August 17, 2001, defendant Gerdes dismissed as unfounded the complaint plaintiff had filed with the Police Department regarding the mob action arrest (id. ¶¶ 29-31);
(5) On June 27, 2001, defendants Desiderio, Egizio and Amelio unreasonably searched and falsely arrested plaintiff for criminal trespass (id. ¶¶ 34-46);
(6) On June 28, 2001, defendant Billups refused to initiate an internal investigation of the criminal trespass arrest (id. ¶ 48);
(7) In July 2001, defendants Egizio and Desiderio learned that the niece of the owner of the property on which plaintiff had allegedly trespassed had authorized plaintiff to be there, but they withheld that information from the prosecutors (id. ¶¶ 50, 56); (8) On January 16, 2002, Egizio and Desiderio conspired with defendant Rippy to have plaintiff charged with criminal contempt of court and caused two sheriff's deputies to unlawfully restrain plaintiff from leaving the courthouse in retaliation for his exercise of free speech (id. ¶¶ 66-75);
(9) In April 2004, defendant Dorris made false statements about plaintiff to a school gathering, which were published in a newspaper (id. ¶ 89), and the City refused to make Dorris correct the statements (id. ¶¶ 90-91);
(10) On June 29, 2004 defendant Sepulvedo falsely arrested plaintiff for having liquor on the public way and used excessive force in effecting that arrest (id. ¶¶ 94-106); and
(11) On July 7, 2004 Gerdes dismissed plaintiff's internal complaint regarding the liquor on the public way arrest (id. ¶¶ 107-09).
Discussion
Motion to Strike

  Plaintiff asks the Court to strike various statements from the City defendants' reply brief. Motions to strike are governed by Rule 12, which permits the Court to "stri[ke] from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). Because a brief is not a pleading and defendants' arguments do not constitute impertinent or scandalous matter, plaintiff's motion to strike is denied.

  Motions to Dismiss

  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 plaintiff's favor. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). 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). Before delving into the individual counts, we have a few preliminary observations. First, some of plaintiff's federal claims are obviously time-barred. The limitations period for each federal claim is two years. See Wilson v. Giesen, 956 F.2d 738, 741 n. 4 (7th Cir. 1992) (42 U.S.C. §§ ("sections") 1983 and 1985(3)); Smith v. City of Chi. Heights, 951 F.2d 834, 839 (7th Cir. 1992) (section 1981). That period begins to run "when the plaintiff knows or should know that his . . . constitutional rights have been violated." Wilson, 956 F.2d at 740. To the extent the alleged events of December 17, 1996, March 3, 1998 or April 7, 2001 violated plaintiff's rights, he knew or should have known it at the time. Thus, the statute of limitations on any civil rights claim based on those events started running the day each event occurred. Plaintiff did not file this suit until June 26, 2003, more than two years after each of those events occurred. Thus, any civil rights claim based on those events is time-barred and must be dismissed.*fn1

  Second, two of the police officers named as defendants, Kevin Sepulvedo and Ronald Nagra, have not moved to dismiss. A review of the Court's docket reveals why: neither man has been served. Because more than 120 days have passed since Sepulvedo and Nagra were named as defendants in this suit, any claims plaintiff asserts against them are dismissed without prejudice pursuant to Rule 4(m). Count I

  In Count I, plaintiff alleges that the City is liable for the remaining incidents under section 1983 because its failure to train and supervise its employees caused the constitutional violations. The City can be held liable under section 1983 only if it deprived plaintiff of his constitutional rights pursuant to one of its policies, customs or practices. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). Plaintiff can allege a policy within the meaning of Monell by: 1) identifying an express policy that caused the alleged constitutional violation; 2) alleging the existence of a practice so widespread and permanent that it constitutes a custom or usage; or 3) alleging that his injuries were caused by a person with final policy-making authority. Baxter ex rel. Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994) (citations omitted).

  Plaintiff contends that his injuries were caused by a City custom namely, its failure to train the defendant police officers and councilman. (Third Am. Compl. ¶¶ 118-21.) The City can be held liable under section 1983 for inadequately training its employees only if it had "actual or constructive notice" that its omissions were likely to result in constitutional violations. Cornfield ex rel. Lewis v. Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993). Such notice is presumed if the municipality does not train its employees "with respect to a clear constitutional duty implicated in recurrent situations that [they are] certain to face" or there is a pattern of constitutional violations such that the City should have realized its training was deficient. Id.

  Plaintiff alleges that the City did not adequately train defendants Egizio, Desiderio and Amelio to conduct constitutional searches and arrests.*fn2 (See Third Am. Compl. ¶¶ 118-21.) If that is true, and we must assume that it is, then the City's training program is plainly flawed. Thus, plaintiff's allegations, though conclusory, are sufficient to state a section 1983 claim against the City for its failure to properly train the defendant officers. See, e.g., Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) ("A complaint that complies with the federal rules of civil procedure cannot be dismissed on the ground that it is conclusory or fails to allege facts.").

  The situation is different for plaintiff's claim that the City failed to train defendant Dorris. That claim is premised on Dorris' alleged defamation of plaintiff. (Third Am. Compl. ¶ 89.) But defamation that injures reputation and nothing more, which is what plaintiff alleges, does not violate the Constitution. See Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) ("[D]efamation by a public officer is not a constitutional tort, because the interest that it invades, the interest in reputation, is not deemed liberty or property within the meaning of the due process clauses of the Constitution. . . ."). Because plaintiff does not allege that the defamation injured any constitutionally-protected interest, the City cannot be held liable under section 1983 for failing to instruct Dorris about defamation.

  Plaintiff's claims that the City failed to train defendants Gerdes and Billups are equally infirm. These claims are based on those defendants' alleged failure to handle properly the complaints plaintiff filed with the Police Department. (Third Am. Compl. ¶¶ 31, 48, 109.) Plaintiff, however, has no constitutional right to have such complaints investigated. Slagel v. Shell Oil Refinery, 811 F. Supp. 378, 382 (C.D. Ill. 1993) (holding that a police chief's failure to investigate plaintiff's complaint letter did not constitute a constitutional violation), aff'd, 23 F.3d 410 (7th Cir. 1994). Thus, Billups and Gerdes' alleged failure to conduct internal investigations cannot be the basis for a section 1983 claim. See Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) ("42 U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.").

  Count II

  In Count II, plaintiff alleges that the County is liable under section 1983 for its failure to train defendants Konzal and Rippy. As we noted in our previous Memorandum Opinion and Order, however, state's attorneys are state, not county, officials. Ingemunson v. Hedges, 133 Ill. 2d 364, 369 (Ill. 1990); (see 5/24/04 Mem. Op. & Order at 11). Moreover, unlike counties, states are not among the government actors subject to suit under section 1983. Will v. ...


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