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May 10, 2005.

SGT. JAMES DISANTIS, a Town of Cicero Police Officer, TOWN OF CICERO, a municipal corporation, Defendants.

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiffs Hector Montes, Richard Montes, Jennifer Pine, and Robert Bertucci have filed suit against the Town of Cicero (the "Town") and Sergeant James DiSantis of the Cicero Police Department*fn1 alleging that DiSantis used excessive force against Pine, Hector Montes, and Richard Montes; falsely arrested and detained all four Plaintiffs; and maliciously prosecuted Hector Montes in connection with two illegal traffic stops. Plaintiffs claim that DiSantis's actions constitute a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and that the Town is liable under the doctrine of indemnification and pursuant to a "policy, practice, and custom claim." DiSantis has moved to dismiss Bertucci's false arrest and detention claim, as well as the RICO and malicious prosecution claims. For the reasons set forth below, the motion is granted in part and denied in part. BACKGROUND

Hector and Richard Montes are brothers who both reside in the Town of Cicero in Cook County, Illinois. (SAC ¶¶ 2, 11.)*fn2 Jennifer Pine and Robert Bertucci were, at all relevant times, homeless and living within Cook County, Illinois, (Id. ¶ 3.) DiSantis is a police sergeant with the Town of Cicero Police Department ("Cicero PD").*fn3 (Id. ¶ 4.) The following factual allegations are drawn from the Second Amended Complaint and are assumed true for purposes of this motion to dismiss. See Kim v. Kim, 360 F. Supp. 2d 897, 899 (N.D. Ill. 2005).

  A. The Traffic Stops

  On September 1, 2003, DiSantis approached Pine in front of a business establishment in the 5900 block of West Roosevelt Road in Cicero, which happened to be within 1,000 feet of a school. DiSantis, who was on duty at the time and in uniform armed with a weapon, solicited Pine for oral sex. When Pine refused DiSantis's "offer to engage in prostitution," he became "visibly angry with her." (Id. ¶¶ 6, 7.) Two days later on September 3, 2003, DiSantis and another unidentified Cicero police officer stopped Pine and her passenger, Bertucci, while they were driving on Roosevelt Road. At the time, Pine and Bertucci were neither committing any crime nor violating any statute, law or ordinance. (Id. ¶ 8.) DiSantis ordered Pine out of the vehicle and proceeded to "verbally and physically abuse Ms. Pine in retaliation for her rebuking his earlier advances of prostitution." (Id. ¶ 9.) DiSantis also threatened to kill Bertucci, causing him "severe emotional distress." (Id.) Apart from Bertucci's association with Pine, no suggestion of DiSantis's motivation for the death threats appears in the complaint.

  During the traffic stop, Hector Montes apparently approached the scene in his own vehicle and observed DiSantis hitting Pine. Hector drove home to pick up his brother, Richard, and to retrieve their video camera. Upon returning to the scene (where the beating presumably continued, despite the elapse of time), the Montes brothers filmed the encounter between DiSantis and Pine and then drove off towards Chicago. (Id. ¶¶ 10, 11.) Realizing that the Montes brothers had videotaped the encounter, DiSantis drove after their vehicle and stopped the two men near the border of Cicero and Chicago.*fn4 (Id. ¶ 12.) DiSantis had no legal basis for the stop, but pulled the Montes brothers over in order to retrieve the video camera, and threatened to beat them unless they turned it over to him. DiSantis ultimately seized and broke the camera, and destroyed the film, and demanded that Hector and Richard give him the camera's "memory stick." (Id. ¶¶ 13, 14.) When the Montes brothers told DiSantis that the camera did not have such a device, DiSantis hit Hector in the face with the camera, causing lacerations, bruising, soreness, and swelling. DiSantis also "tightly squeezed the testicles of both of the Montes Plaintiffs" and referred to them several times as "fucking Mexicans." (Id. ¶ 14.)

  After destroying the video camera, DiSantis searched the Montes brothers and apparently found firearm ammunition in their vehicle, but no Firearm Owner's Identification Card ("FOID card"). DiSantis charged Hector with the misdemeanor offense of possession of firearm ammunition without an FOID card, though Hector claims he owned a valid FOID card somewhere in his possession (though presumably not on his person) at the time of his arrest. (Id. ¶ 15.) Plaintiffs claim that DiSantis "purposely and unreasonably" extended Hector's stay in custody on the misdemeanor arrest by threatening to have him charged with a felony and "doing and/or causing to be done an illegal search and seizure of his home and property therein" without probable cause. (Id. ¶ 16.) On October 6, 2003, the case against Hector — People v. Hector Montes, No. 03401033401 — "was S.O.L. [stricken off with leave to reinstate] in a manner suggesting the innocence of Plaintiff Hector Montes," and Hector demanded a trial to start the running of the speedy trial clock. (Id. ¶ 15.) B. Plaintiffs' Lawsuit

  On July 7, 2004, Hector Montes filed suit against DiSantis and the Town in connection with the September 2003 traffic stop. Montes charged DiSantis with intentional infliction of emotional distress ("llED") and several violations of 42 U.S.C. § 1983, including excessive force, false arrest and detention, and violation of property rights. He also asserted a claim for indemnification against the Town and separately alleged a "Monell policy, practice, and custom claim." On October 22, 2004, DiSantis moved to dismiss the property rights violation and IIED claims for failure to state a claim under FED. R. Civ. P. 12(b)(6). Rather than responding to that motion, Hector filed a First Amended Complaint on November 3, 2004, adding Pine and Bertucci as plaintiffs; deleting the property rights violation and IIED claims; and adding a RICO claim against DiSantis. Shortly thereafter on November 24, 2004, Plaintiffs requested leave to file a Second Amended Complaint to add Richard Montes as a plaintiff; to clarify that the RICO claim is stated against both DiSantis and the Town;*fn5 and to add a claim for malicious prosecution on behalf of Hector Montes. (Motion for Leave to File Second Amended Complaint, Doc. No. 18, ¶¶ 3-5.)

  The Town answered the Second Amended Complaint ("SAC") on December 3, 2004. DiSantis answered the SAC in part on December 23, 2004, but also filed a motion to dismiss several claims as discussed below.


  The purpose of a motion to dismiss is to test the sufficiency of the plaintiff's complaint, not to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A motion to dismiss will be granted only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a motion to dismiss for failure to state a claim, the court accepts as true all factual allegations in the plaintiff's complaint and draws all reasonable inferences in his favor. Flannery v. Recording Industry Ass'n of Am., 354 F.3d 632, 640 (7th Cir. 2004); Franzoni v. Hartmarx Corp., 300 F.3d 767, 770 (7th Cir. 2002).

  DiSantis seeks to dismiss Bertucci's false arrest and detention claim for failure to allege a cognizable restraint or arrest. DiSantis also claims that the Montes Plaintiffs cannot state a RICO claim against him because he did not conduct the affairs of an enterprise through a pattern of racketeering activity. Finally, DiSantis argues that Hector Montes cannot plead the elements of a malicious prosecution claim because the misdemeanor charge against him was "SOL'd." The court considers each argument in turn.

  A. False Arrest and Detention

  DiSantis argues that Bertucci cannot state a claim for false arrest and detention because he was never restrained or arrested. Citing Fuentes v. Sheahan, No. 03 C 4892, 2004 WL 1611607 (N.D. Ill. July 19, 2004), DiSantis argues that Illinois law requires Bertucci to prove that DiSantis (1) restrained or arrested him; and (2) acted without having reasonable grounds to believe that he had committed an offense. Id. at *5 (citing Meerbrey v. Marshall Field and Co., 139 Ill. 2d 455, 474, 564 N.E.2d 1222, 1231 (1990)). According to DiSantis, Plaintiffs' allegations that Bertucci was a passenger in Pine's vehicle and that DiSantis threatened to kill him are insufficient to plead an improper restraint or arrest. (Def. Mem., at 3.)*fn6

  Plaintiffs insist that "the temporary detention of individuals — drivers and passengers alike — during a vehicle stop constitutes a `seizure' of `persons' within the meaning of the fourth amendment." (Pl. Resp., at 2)*fn7 (quoting People v. Bunch, 207 Ill. 2d 7, 13, 796 N.E.2d 1024, 1029 (2003).) Bertucci was "seized," Plaintiffs argue, when DiSantis stopped the vehicle in which he was riding, and the SAC adequately alleges that the stop was unreasonably based upon DiSantis's desire to retaliate against Pine for rebuffing his earlier sexual advances. (Id.) DiSantis responds only that Bertucci failed to allege that he was arrested or "somehow compelled to submit to the alleged detention of Pine's car." (Def. Reply, at 2)*fn8 (citing Williams v. Brown, 269 F. Supp. 2d 987, 991 (N.D. Ill. 2003) (overturned on other grounds) ("Circumstances that might indicate a seizure, even where the ...

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