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McDORMAN v. SMITH

August 2, 2005.

KIMBERLY McDORMAN, Plaintiff,
v.
OFFICER SMITH, STAR NO. 1824, MICHAEL SANCHEZ, UNKNOWN SERGEANT and CITY OF CHICAGO, Defendants.



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Kimberly McDorman filed a twelve-count amended complaint under 42 U.S.C. § 1983 and state law. Plaintiff alleges that she was seriously injured when her car was struck by a vehicle driven by defendant Michael Sanchez ("Sanchez"), a Chicago Police Department ("CPD") officer. Plaintiff also alleges that pursuant to a custom or practice of the CPD, defendant Officer Smith ("Smith") and other CPD officers responding to the accident conspired to falsify a police report to conceal Sanchez's identity and other information regarding the incident, and wrongfully charged plaintiff with traffic violations. Defendants Smith and the City of Chicago ("City") have filed a motion to dismiss plaintiff's complaint pursuant to Fed.R. Civ. P. 12(b)(6). For the reasons explained below, defendants' motion to dismiss is granted in part and denied in part. FACTS

For the purposes of a motion to dismiss, the court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).

  Plaintiff Kimberly McDorman is a resident of Cook County, Illinois. Smith and Sanchez are CPD officers. On December 12, 2004, plaintiff and Sanchez were involved in a traffic accident that left plaintiff seriously injured and unconscious. Plaintiff does not allege that Sanchez was on-duty or driving an official vehicle at the time of the accident. Plaintiff alleges that police officers responding to the accident, including Smith and an unknown sergeant ("Responding Officers"), protected the identity of their fellow CPD officer, Sanchez, by falsifying police reports documenting the accident. In particular, the report recorded the identity of the driver of the car that collided with plaintiff's car as "unknown." According to plaintiff, Smith knew that Sanchez had consumed substantial quantities of alcohol but did not include this information in the reports. The Responding Officers issued two traffic violations to plaintiff for traveling the wrong way on a one-way street and disobeying a red light, which were later dismissed.

  Plaintiff alleges that Sanchez knew that he could drive with "deliberate indifference" because it is a custom or practice of CPD officers to conspire to falsify documents, including reports and tickets, and to withhold information when a fellow officer is involved in an accident or traffic violation so that fellow officers do not "get into trouble." Sanchez and the Responding Officers also withheld information from the State's Attorney and/or Corporation Counsel for the City regarding the December 12, 2004, incident because a "code of silence exists" between officers of the CPD to "obstruct the legal process."

  DISCUSSION

  In ruling on a motion to dismiss for failure to state a claim, the court accepts the allegations of the complaint as true and views the facts in the light most favorable to the plaintiff. Travel All Over the World, 73 F.3d at 1428. A complaint should not be dismissed for failure to state a claim unless there is no doubt that the plaintiff cannot prove a set of facts that would entitled her to relief based on her claim. Pressalite Corp. v. Matsushita Electric Corp. of America, 2003 WL 1811530, at *2 (N.D.Ill. Apr. 4, 2003).

  I. Constitutional deprivations (Counts I and X)

  Plaintiff asserts multiple federal claims under 42 U.S.C. § 1983, as well as violations of her constitutionally protected rights to equal protection of the law and access to court. Defendants argue that plaintiff has failed to allege the deprivation of a constitutional right as required to state each of these claims, and that all of her federal claims should therefore be dismissed. For the reasons discussed below, the court disagrees. Plaintiff has sufficiently alleged constitutional violations, although some of her claims suffer from other deficiencies.

  Defendants rely heavily on the Seventh Circuit's opinion in Hill v. Shobe, 93 F.3d 418 (7th Cir. 1996), which is factually similar to the instant case, in support of their argument that she fails to allege a constitutional violation. According to defendants, the Seventh Circuit "unequivocally stated" in Hill that a "traffic accident does not give rise to a constitutional claim." Defendants, however, overstate the preclusive effect of the holding in Hill, and understate the differences between the allegations in Hill and plaintiff's allegations in the instant case. The plaintiffs in Hill brought a § 1983 claim against police officers and the City of Indianapolis for violation of due process rights, alleging that after Robert Hill was struck and killed by an on-duty police officer driving recklessly, the responding offices conspired to cover up the officer's negligent role in the accident. Id. at 420. The plaintiffs alleged that Indianapolis and its Chief of Police inadequately trained and disciplined their officers, effectively establishing a custom of encouraging them to drive aggressively and at high speeds in non-emergency situations. Id. The Seventh Circuit held that the plaintiffs failed to allege a constitutional violation because they alleged that the officer was driving negligently, rather than with criminal reckless or deliberate indifference, which is a lesser degree of intent that does not violate the due process clause. Hill, 93 F.3d at 421 ("The fact that a public official committed a common law tort with tragic results fails to rise to the level of a violation of substantive due process."). The Hill court also held that because the plaintiffs failed to allege that the accident violated Robert Hill's due process rights, they failed to state a § 1983 conspiracy claim based on the cover-up of the driver's actions. Hill, 93 F.3d at 422 ("For liability under § 1983 to attach to a conspiracy claim, defendants must conspire to deny plaintiffs their constitutional rights."). The plaintiffs' claim that the cover-up denied their right of access to court, which the district court dismissed, was not before the Seventh Circuit.

  In the instant case, defendants are correct that Hill defeats some of plaintiff's claims, although not for the reasons asserted by defendants, and incorrect that Hill bars all of plaintiff's federal claims. Defendants characterize Hill as creating an absolute bar against any constitutional claims related to a car collision. This is neither the intent nor the effect of Hill, which merely holds that the plaintiffs in that case had failed to alleged the requisite intent by the driver. 93 F.3d at 421, n. 2 ("The key word is `accident.' A plaintiff who asserts that he is the deliberate object of state action which caused injury may state a claim under § 1983."). Deliberate indifference, like criminal recklessness, is "a proxy for intent." Hill, 93 F.3d at 421; Wilson v. Williams, 83 F.3d 870, 875 (7th Cir. 1996). Unlike the plaintiffs in Hill, plaintiff here alleges that Sanchez drove with "deliberate indifference," and has therefore alleged the requisite intent to state a constitutional violation.

  Plaintiff fails, however, to allege state action by Sanchez, which is the second required element of a § 1983 claim. It is not clear from the amended complaint whether plaintiff alleges that Sanchez was on-duty at the time of the incident. Plaintiff initially defines the "Defendant Officers" as Sanchez, Smith and an unknown sergeant, and alleges that "the Defendant Officers were acting under color of state law" at all times material to the amended complaint. Elsewhere in the amended complaint, however, plaintiff refers to Sanchez as distinct from the Defendant Officers, and plaintiff fails to challenge defendants' statement in the motion to dismiss that she does not allege Sanchez was on duty. Plaintiff has thus failed to allege that Sanchez was acting under color of law at the time of the collision.*fn1

  Count I alleges a violation of plaintiff's Fourth Amendment rights, and she clarifies in her response that she alleges that her injury in the accident "amounts to seizure." As noted above, however, plaintiff fails to allege that Sanchez, who caused her physical injuries, was acting under color of law. According, the court grants defendants' motion to dismiss Count I.*fn2 Count X alleges a violation of plaintiff's Fourteenth Amendment rights, but does not identify which actions by which defendants caused the alleged constitutional violation. To the extent that plaintiff is attempting to allege a Fourteenth Amendment violation by Sanchez, she fails to state a claim for the same reasons as apply to Count I. To the extent that plaintiff is attempting to state a Fourteenth Amendment claim based on the conspiracy and cover-up, Count X is redundant of her other counts. Accordingly, the court grants defendants' motion to dismiss Count X.

  Hill and defendants' argument that plaintiff fails to allege a constitutional violation does not, however, defeat the remaining federal claims. Plaintiff's claims are not limited to the collision itself but include the subsequent cover-up, which she alleges violated her right to equal protection of the laws (Count XII) and her right of access to court (Count XII). As discussed below, she has sufficiently stated a claim for constitutional violations and therefor she has ...


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