The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
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).
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
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
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
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 ...