The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court is defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendant's motion is granted in part and denied in part.
The following relevant facts, drawn from the First Amended Complaint, are taken as true for purposes of this motion. Plaintiff Bobbi Johnson ("Johnson") is the owner of real property located in Joliet, Illinois. Defendant David R. Mackley ("Mackley") is an Inspector for the Building Inspections & Permit Department of Defendant City of Joliet ("City"). Defendant Richard Thompson ("Thompson") is the Property Maintenance Inspector for the Neighborhood Services Division of the City. Defendant Mary J. Kucharz ("Kucharz") is the Assistant Corporation Counsel for the Legal Department of the City.
During the early morning hours of October 6, 2002, Johnson discovered that her recently renovated garage situated on the rear portion of her property had been partially damaged. Thereafter, one of the City's police officers knocked on Johnson's door and informed her that a car had run into her garage. Johnson then visually inspected the damage. That afternoon Mackley, without informing Johnson, contacted one of the City's hired demolition contractors, who subsequently demolished Johnson's garage. As a result, Johnson did not have the opportunity to have a private contractor assess the damage prior to demolition. The contractor left the garage debris in Johnson's backyard. Johnson, an African American, alleges that at no time had the City ever caused demolition of any similarly situated "white property owner's" building that had sustained structural damage from being hit by an automobile without first affording the "white property owner" with an opportunity to have a contractor provide an estimate of damages for making repairs.
In November, 2002, Johnson sent written correspondence to the City pertaining to the demolition of her garage and the leaving of the debris from the demolition on her property. Johnson never received a response from the City. Later that month Johnson appeared at the City's regularly scheduled televised General Council Assembly session. During this session Johnson publicly criticized Mackley for the demolition of her garage and the leaving of the debris in her backyard. She also indicated that she was holding the City responsible for the deprivation of property she suffered. After this the City's mayor, Arthur Schultz, directed the City's Corporation Counsel, Jeffrey Plyman, to meet with Johnson in order to work out a solution to the dispute.
On December 11, 2002, Thompson and Kucharz commenced proceedings against Johnson for failure to abate a violation of City ordinance in connection with the garage debris in her backyard. Johnson alleges that the proceedings were initiated maliciously in retaliation for Johnson's public criticism of Mackley. She further alleges that Thompson and Kucharz conspired to withhold exculpatory evidence and other material necessary for a fair and impartial hearing. Nonetheless, at a hearing on January 28, 2003, the ordinance violation was dismissed. On February 25, 2003, the Circuit Court of the Twelfth Judicial District issued an order clarifying that the dismissal of the ordinance violation was with prejudice.
On October 5, 2004, Johnson filed the present suit. Defendants subsequently moved to dismiss the complaint. In response, Johnson sought leave to file an amended complaint, which was granted.
Johnson's First Amended Complaint sets forth six causes of action. Count I is a § 1983 claim against the City for failure to properly train, supervise and control Mackley, Thompson and Kucharz. In particular, Johnson alleges: (1) failure by the City to take any steps to train, supervise and control Mackley, Thompson and Kucharz, thus maintaining an atmosphere and climate where constitutional violations are not prosecuted or punished, encouraging the defendants to violate rather than respect the constitutional rights of citizens; (2) failure by the City to track, notice, act upon, or correct patterns of abuse by its Building Inspections & Permit Department, and its Neighborhood Services Division, thus encouraging a climate of constitutional abuses; and (3) failure to instruct or train the individual defendants as to what constitutes deprivation of property, racial discrimination, and malicious prosecution, which is tantamount to a violation of 42 U.S.C. § 1983.
In the alternative, Johnson claims that the conduct of the City was consistent with and in accordance with the directives of a person or persons employed by the City with final policymaking authority. Johnson further alleges that the conduct of the individual defendants was pursuant to the decisions and conduct of the heads of their respective departments, who had actual or constructive knowledge that the City's own constitutional injuries upon citizens such as Johnson created the atmosphere for the individual defendants to engage in conduct that posed pervasive and unreasonable risk of constitutional injury to citizens like Johnson. She contends that the City's response to that knowledge was so inadequate as to show a deliberate indifference to or a tacit authorization of the alleged offensive practices and, as such, is tantamount to a violation of 42 U.S.C. § 1983.
Count II is a claim of deprivation of equal protection of the laws under the Fourteenth Amendment in violation of 42 U.S.C. § 1983, and is brought against defendants Mackley, Thompson, and Kucharz. Johnson claims that the actions of these defendants were excessive, unreasonable, and were executed without probable cause or other lawful justification.
Count III is a claim of violation of property rights under 42 U.S.C. § 1982, and is brought against the City and Mackley. Johnson claims that Mackley intentionally discriminated against her and deprived her of her right to hold "the real and structural garage on her Property as enjoyed by 'white citizens'" because of her status as an African American. She further alleges that the City is liable because Mackley was acting within the scope of his administrative duties as an inspector for the Building Inspections & Permit Department of the City.
Count IV is a claim of deprivation of full and equal benefit of the City's pre-deprivation administrative hearings and post-deprivation judicial hearings under 42 U.S.C. § 1981(a), and is brought against the City and Mackley. Johnson claims that the alleged conduct of these defendants raises a plausible inference that they acted in accordance with, and were motivated by, a racial animus towards her. She contends that these defendants, by their conduct, intentionally discriminated against her and deprived her of the full and equal benefits of the City's pre-deprivation administrative hearings and post-deprivation judicial proceedings because of her status as an African American, and that such conduct is tantamount to a violation of 42 U.S.C. § 1981(a).
Count V is a § 1983 claim of malicious prosecution in violation of the Fourth Amendment, and is brought against defendants City, Thompson and Kucharz. Johnson claims that Thompson and Kucharz conspired to knowingly and maliciously prosecute her on false ordinance violation charges, and that they committed various overt acts in furtherance of the scheme in order to obtain a monetary judgment against her.
Count VI is a § 1983 claim of violation of Johnson's First Amendment rights, and is brought against the City, Thompson and Kucharz.
The defendants assert a number of arguments in support of their motion to dismiss Johnson's First Amended Complaint. First, the defendants argue that Count I should be dismissed for failure to state a claim upon which relief can be granted. Second, Kucharz argues that Counts II, V and VI against her should be dismissed because she is entitled to prosecutorial immunity. Third, all defendants also argue that Count II fails to state a claim.
Fourth, the defendants argue that Count III must be dismissed because Mackley did not interfere with Johnson's right to hold and convey property. Fifth, the defendants argue that Count IV fails to state a claim under 42 U.S.C. § 1981(a). Sixth, defendants argue that Count V must be dismissed because a malicious prosecution claim may not be brought under 42 U.S.C. § 1983. Finally, the defendants argue that Count VI must be dismissed because it is time barred and it fails to state a claim. We will discuss these arguments in turn.
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). Dismissal is appropriate only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); Jones v. General Elec. Co., 87 F.3d 209, 211 (7th Cir.), cert. denied, 519 U.S. 1008 (1996).
To survive a motion to dismiss, a pleading must only contain enough to allow the court and the defendant to understand the gravamen of the plaintiff's complaint. McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). "All that need be specified is the ...