United States District Court, N.D. Illinois, Eastern Division
August 31, 2005.
MANUEL CHICO, Plaintiff,
OFFICER DAN MILLER, Oak Lawn Police Department; OFFICER J. RILEY, Alsip Police Department; OFFICER E. CASEY, Alsip Police Department; and VILLAGE OF ALSIP, a Municipal Corporation, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Alsip
Police Officers Riley and Casey and the Village of Alsip (the
"Village") (collectively referred to as the "Defendants"), to
dismiss Count III of the Plaintiff's complaint, pursuant to
Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the
Defendants' motion is granted.
According to the allegations of the complaint, which we must
accept as true when evaluating a motion to dismiss, on the
evening of May 27, 2003, Plaintiff Manuel Chico ("Chico") stopped
at a White Hen Pantry convenience store located at 7035 West 115th Street in Alsip, Illinois. After using an Automated Teller
Machine ("ATM") inside the store, Chico returned to his car and
found that a man, later identified as Oak Lawn Officer Dan Miller
("Officer Miller"), had positioned his vehicle in such a way as
to prevent Chico from leaving. When Chico exited his car to
investigate, Officer Miller displayed his badge and identified
himself as a police officer. Officer Miller refused to move his
vehicle in order to allow Chico to leave. Chico alleges that
Officer Miller then struck him in the face with an unknown
object, knocking him to the ground and rendering him unconscious.
At some point following the alleged incident, Alsip Police
Officers Riley and Casey (collectively referred to as the
"Officers") arrived at the scene. Chico, who maintains that he
was disoriented following the attack, states that he informed the
Officers that he had been struck by another individual, but that
the Officers took no action. Officer Riley ultimately drove Chico
home in his squad car.
On the morning of May 28, 2003, Chico checked himself into Oak
Forest Hospital, complaining of pain to his jaw. X-rays showed
that Chico's jaw had been broken. When Oak Forest Hospital
refused treatment on insurance grounds, Chico checked himself
into John Stroger Hospital, where he remained until June 6, 2003.
Following his release from the hospital, Chico went to the Alsip
Police Department to file charges against the unknown man who
struck him. Chico asserts in his complaint that, at the time, he believed that his attacker was an Alsip
Police Officer. Chico alleges that agents of the Alsip Police
Department did not assist him in determining the unknown
officer's identity and actively withheld the information from
Thereafter, Chico filed a claim with the Illinois Attorney
General for damages under the Crime Victim's Compensation Act.
During an Illinois Court of Claims hearing on June 9, 2004, Chico
learned that Officer Miller was the alleged assailant. On April
6, 2005, Chico filed a multi-count civil rights complaint in the
Circuit Court of Cook County against Officer Miller and the
Defendants. Citing federal question jurisdiction, the Defendants
removed the case to this court on May 24, 2005. On June 30, the
Defendants filed their collective motion to dismiss.
A court may dismiss a case on a Rule 12(b)(6) motion "for
failure to state a claim upon which relief may be granted."
Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss is to
test the legal sufficiency of a complaint, not to decide the
underlying merits. Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court
must accept as true all well-pleaded facts and allegations in the
complaint, construe allegations in the light most favorable to
the plaintiff, and draw all reasonable inferences in favor of the
plaintiff. Bontowski v. First Nat'l Bank of Cicero,
998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint
should not be dismissed for failure to state a claim "unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in
order to survive a motion to dismiss, a complaint must allege the
"operative facts" upon which each claim is based, conveying
enough information so that the defendant is able to understand
the gravamen of the complaint. Kyle v. Morton High Sch.,
144 F.3d 448, 454-55 (7th Cir. 1998); Payton v.
Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th
Cir. 1999). A plaintiff cannot satisfy federal pleading
requirements merely "by attaching bare legal conclusions to
narrated facts which fail to outline the basis" of the claim.
Perkins, 939 F.2d at 466-67. With these principles in mind, we
turn to the present motion.
I. Count III: State Law Conspiracy Claim
Defendants first seek dismissal of Chico's conspiracy claim set
forth in Count III. An initial reading of Chico's complaint
results in some confusion as it is not immediately clear whether
Chico intended to allege a state law conspiracy, or a federal
conspiracy under 42 U.S.C. § 1983. Although Chico clarifies the
matter by stating in his opposition brief that he alleged a state
law conspiracy, Defendants argue that the obfuscated wording of
Chico's complaint deprived them of the fair notice required by Federal Rule of Civil Procedure 8. However, a liberal reading of
Chico's complaint compels us to disagree.
It appears that Chico grouped his state law claims together
when drafting his complaint. Count III is nestled between other
state law claims whereas the counts pertaining to Section 1983
are found at the end of Chico's complaint. Further, Chico makes
no reference to Section 1983 in Count III, but does so in other
counts of his complaint. This allows for the inference that Chico
intended to allege a conspiracy rooted in Illinois law.
Consequently, Count III provides adequate notice of an alleged
state law conspiracy to the Defendants to preclude dismissal on
Fed.R.Civ.P. 8 grounds.
Turning to the substance of Count III, Chico alleges that the
Officers conspired to conceal from him the identity of his
alleged assailant, Officer Miller, by withholding police reports
and failing to investigate Chico's complaint. This alleged
conspiracy, according to Chico, deprived him of his due process
right to access the courts and pursue litigation against Officer
In Illinois, a civil conspiracy is defined as "a combination of
two or more persons for the purpose of accomplishing by concerted
action either an unlawful purpose or a lawful purpose by unlawful
means." McClure v. Owens Corning Fiberglass Corp.,
720 N.E.2d 242, 258 (Ill. 1999) (citing Buckner v. Atlantic Plant Maint., Inc., 694 N.E.2d 565 (Ill. 1998)). To state a claim for
civil conspiracy, a plaintiff must allege an agreement and a
tortious act in furtherance of that agreement. McClure,
720 N.E.2d at 258.
In Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995), the
victim of an accidental shooting sued several police officers who
investigated the incident, alleging that the officers conspired
to conceal the fact that fellow officers participated in the
shooting. Vasquez, 60 F.3d at 327-28. Specifically, the
plaintiff alleged that the defendants' concealment deprived her
of her due process right of access to the courts by creating an
unnecessary delay of six months before the actual circumstances
of the shooting emerged. Id. at 329. On appeal of the district
court's granting of summary judgment in the defendants' favor,
the Seventh Circuit held that the officers did not deprive the
plaintiff of her right to access the courts, reasoning that the
six-month delay experienced by the plaintiff, while inconvenient,
did not rise to the level of a constitutional violation because
the eventual release of the concealed information preserved
plaintiff's right to recover in a state tort action. Id.
In the instant case, the fact that Chico did not know Officer
Miller's identity at the time of the attack did not foreclose
Chico's access to the courts. Chico could have filed a civil suit
against the Village or the Alsip Police Department. This would
have led to the discovery of the police report and the identity
of Officer Miller, just as they were revealed when Chico filed his action with the Illinois Court
of Claims. Consequently, Chico does not sufficiently state a
claim for which relief may be granted.
Chico attempts to distinguish Vasquez on the basis that
Vasquez involved a Section 1983 conspiracy claim, unlike the
state law conspiracy claim advanced here. However, Chico
overlooks the fact that his state law conspiracy claim is
premised upon an alleged violation of the same constitutional
right as argued in Vasquez; the due process right of access to
the courts. Thus, to the extent the Seventh Circuit analyzed
whether Vasquez sufficiently presented a violation of the due
process right to access the courts, the Vasquez decision
applies to the factual situation here.
Chico further asserts that the alleged delay in discovering the
identity of Officer Miller deprived him of access to the courts
by potentially providing Officer Miller with a statute of
limitations defense. This argument lacks merit.
While Officer Miller has not yet appeared or answered before
this court, a statute of limitations defense would arise from
Chico's failure to file his complaint at an earlier time and not
as a result of the alleged conduct of Officers Riley and Casey.
Even if the Officers withheld Officer Miller's identity from
Chico, they did not preclude Chico from discovering this
information on his own through the filing of a civil suit. The
fact that Chico waited nearly a year after discovering Miller's
identity in the Court of Claims before filing suit in Cook County has no
relation to the purported conduct of Officers Riley and Casey.
In sum, because Chico's conspiracy claim is not grounded in an
unlawful act, he has failed to state a civil conspiracy under
Illinois law, and accordingly, Count III must be dismissed.
II. Claim Against the Village of Alsip
Defendants next assert that the Village must be dismissed from
the present action because Chico failed to allege a specific
unconstitutional policy or custom under Section 1983. In
addition, the Defendants argue that the Village is not named in
any of the remaining individual counts and should accordingly be
dismissed from the present action. Chico counters that claims
against the Village are sufficiently pled in Count III of his
complaint. Specifically, Chico claims that the allegations in
Count III are state law claims and thus he need not plead a
specific unconstitutional policy or custom under Section 1983.
Instead, Chico claims that the common law theory of respondeat
superior applies, and that the allegations against Officers
Riley and Casey as employees of the Village are sufficient to
place the Village on notice of the claim against it. Assuming
that the allegations in Count III are state law claims and common
law agency rules apply, Chico's allegations against the Village
are insufficient. Under Illinois law, a municipality may be liable for the
actions of subordinates when they commit tortious or illegal acts
within the scope of their agency or employment. Wright v. City
of Danville, 675 N.E.2d 110, 118 (Ill. 1996). Here, Chico names
Officers Riley and Casey as officers of the Village, but fails to
allege that the Officers committed tortious or illegal acts
within the scope of their agency or employment. Consequently,
Chico fails to place the Village on notice and does not properly
allege common law respondeat superior in Count III.
Accordingly, as Chico has not named the Village in any of the
other counts of the complaint, the Village is dismissed from the
Based on the foregoing analysis, Defendants' motion to dismiss
is granted without prejudice.
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