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Southern v. City of Harvey

November 13, 2006


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Mark Southern initially filed a seven-count complaint in the Circuit Court of Cook County, Illinois, against defendants City of Harvey and Harvey police detectives Debois, Keyes and Williams in their individual capacities, alleging false arrest and false imprisonment, conspiracy to deny due process, violations of civil rights, malicious prosecution and intentional infliction of emotional distress in Counts I through VII respectively, arising out of two arrests occurring on May 22, 2003, and November 20, 2005. Defendants removed the action to this court pursuant to 28 U.S.C. §§ 1331, 1441 based on plaintiff's claims under 42 U.S.C. § 1983 ("§ 1983"). Defendants then moved to dismiss Counts I, IV, V, VI and VII pursuant to FED. R. CIV. P. 12(b)(6). For the reasons set forth below, defendants' motion to dismiss is granted with respect to Counts I and V and is denied with respect to Counts IV, VI and VII.


Plaintiff is a resident of Richton Park, Illinois. On May 22, 2003, plaintiff was visiting his girlfriend, Tombie King, who lived at 15117 Page Street in Harvey, Illinois, and was watching several young children in King's apartment. Defendants were conducting a raid of the housing complex plaintiff was visiting. They were looking for an unidentified black male suspected of selling narcotics. Plaintiff chased after one of the young children who ran outside the apartment. Defendants then detained plaintiff and allegedly arrested him for being in possession of a black handgun. Defendants then entered Ms. King's home without a warrant and proceeded to search the apartment. According to the complaint, defendants "recovered a handgun, a controlled substance and cannabis." Plaintiff was charged with possession of the handgun, a controlled substance and cannabis, knowing that the arrest was false.

Plaintiff alleges that defendants prepared false police reports and knowingly supplied false and misleading information to the prosecutors. Plaintiff also alleges that certain defendants falsely testified before the Grand Jury. As a result, plaintiff spent six days in the Cook County Department of Corrections before being released on bail. While the case was pending, Ms. King moved to 14800 Robey Ave. in Harvey. Defendants subsequently began looking for him at Ms. King's new address. On November 19, 2004, defendants obtained a search warrant for Ms. King's home. According to plaintiff, the warrant was illegally obtained through the false testimony of the defendants. The warrant was executed on November 20, 2004, while plaintiff was present at Ms. King's address. Plaintiff was arrested and allegedly detained for several days without being taken to court.

On May 17, 2005, plaintiff was tried for the charges arising from the first arrest and found not guilty. In the second case, a trial was scheduled to occur on June 30, 2005. On that date, the court dismissed the charges against him. Plaintiff alleges that as a result of the defendants' actions, he suffered anxiety, humiliation, embarrassment and emotional trauma and suffering.


In ruling on a 12(b)(6) motion to dismiss, the court should accept all allegations in the complaint as true and view the facts in a light most favorable to the plaintiff. McDorman v. Smith, 437 F. Supp. 2d 768, 773 (N.D. Ill. 2006). A complaint should not be dismissed for failure to state a claim unless there is no doubt that the plaintiff cannot prove any set of fact entitling him to relief. Pressalite Corp. v. Matsushita Electric Corp. of America, 2003 WL 1811530, at *2 (N.D. Ill. April 4, 2003). There is no requirement to plead specific facts but merely a need to plead a claim for relief and plaintiffs "need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of." Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005).


Defendants have moved to dismiss Counts I (false arrest and imprisonment May 2003) and V (malicious prosecution May 2003 arrest) of plaintiff's complaint on the ground that they are time-barred, and Counts IV (§ 1983 against City of Harvey), VI (malicious prosecution November 2004 arrest) and VII (intentional infliction of emotional distress) for failure to state a claim.

Counts I and V -- False Arrest and Malicious Prosecution (May 22, 2003 arrest)

In Count I brought under § 1983, plaintiff alleges false arrest and false imprisonment arising out of the May 2003 arrest. The alleged incident occurred on May 22, 2003. Plaintiff filed his complaint on May 16, 2006. The statute of limitations for claims brought pursuant to § 1983 is two years from the date plaintiff can plead all elements of the claim. Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir. 1998). For a false arrest claim, plaintiff can plead all the elements of the claim on the date of his arrest regardless of subsequent proceedings. Id. Because plaintiff filed his claim for false arrest more than two years after May 22, 2003, Count I is time barred.*fn2 In Count V, plaintiff alleges a state law malicious prosecution claim arising from his May 2003 arrest. Section 8-101 of the Illinois Tort Immunity Act, 745 ILCS 10/8-101, provides that a claim for tort liability against "a local entity or any of its employees must be commenced within one year from the date that the injury was received or the cause of action accrued." Ferguson v. City of Chicago, 213 Ill.2d 94, 99 (2004). A claim for malicious prosecution "does not accrue until the criminal proceeding on which it is based has been terminated in the plaintiff's favor." Id. In the instant case, plaintiff alleges that the termination of his May 2003 arrest occurred on May 17, 2005, after trial and a not guilty verdict. Plaintiff filed his complaint on May 16, 2006. Thus, it would seem he is within the statute of limitations. The actual disposition of the case, however, occurred on March 22, 2005. The Certified Statement of Conviction/Disposition attached to defendants' motion to dismiss indicates that a finding of not guilty was entered on March 22, 2005, by Judge Thomas O'Hara. As defendants correctly point out, the court may take judicial notice of the Certified Statement because it is part of the public record. See Craig v. City of Chicago, 2005 WL 1564982, at *5 (N.D. Ill. June 9, 2005). Thus, the correct expiration date of the statute of limitations is March 22, 2006, two months prior to plaintiff's filing. Therefore, defendants' motion to dismiss Count V is granted.*fn3

Count IV -- Monell claim against City of Harvey

In Count IV, plaintiff alleges various violations of his civil rights against defendant City of Harvey. A plaintiff's complaint in a § 1983 action against a municipality "need not meet any heightened pleading standard, but rather must simply set forth sufficient allegations to place the court and defendants on notice of the gravamen of the complaint." Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001). In the instant case, plaintiff alleges that the City of Harvey developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of its citizens. Plaintiff additionally alleges that the City of ...

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