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Dean v. Behrend

December 19, 2007

TERRY DEAN, IVORY WADDELL, JESSICA WADDELL, BY HER PARENTS TERRY DEAN AND IVORY WADDELL, YARELLY WADDELL, BY HER PARENTS TERRY DEAN AND IVORY WADDELL, BREANNA WADDELL, BY HER PARENTS TERRY DEAN AND IVORY WADDELL, LOUIS WADDELL, BY HER PARENTS TERRY DEAN AND IVORY WADDELL, PLAINTIFFS,
v.
CHAD M. BEHREND, ANGELO J. MONACO, SALVATORE REINA, VINCENT FICO, JOHN J. MURPHY, ANTONIO P. ONTIVEROS, SCOTT M. SLECHTER, PAUL L. TASCH, JR., AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Plaintiffs Terry Dean and Ivory Waddell ("adult Plaintiffs"), along with their children Jessica Waddell, Yarelly Waddell, Breanna Waddell, and Louis Waddell ("minor Plaintiffs") (collectively "Plaintiffs"), brought this action against Defendants Chad M. Behrend, Angelo J. Monaco, Salvatore Reina, Vincent Fico, John J. Murphy, Antonio P. Ontiveros, Scott M. Slechter, Paul L. Tasch, Jr. (collectively "officer Defendants"), and the City of Chicago, for civil rights violations pursuant to 42 U.S.C. § 1983. Now before this Court is Defendants' motion to dismiss (Docket No. 9). For the reasons stated below, the motion is GRANTED in part and DENIED in part.

1. FACTS*fn1

On or about January 22, 2005, at approximately 11:25 AM, defendant police officers entered Plaintiffs' home at 3219 W. Warren, Chicago, Illinois. Defendants Behrend, Monaco, Reina, Fico, Murphy, Ontiveros, Slechter, and Tasch did not have a warrant to search the home and they declared that they did not need one. They stated that they were looking for any guns or drugs the family might have. Defendant police officers did not have Plaintiffs' consent to search the home. All Plaintiffs were home at the time of the police raid. The officer Defendants searched through the Plaintiffs' personal effects and left the home in disarray.

Plaintiffs were detained during the search, with the minor Plaintiffs separated from their parents and kept in a separate room. Officer Defendants threatened Plaintiffs with arrest and said that they would take the children away. The police officers seized guns from Plaintiffs' home during their search.

Defendant Dean would eventually be brought up on criminal charges for failure to have an identification card for the firearm and several counts of failure to register a firearm. Dean was arrested, processed, and charged with said crimes, and was ultimately incarcerated. During the arrest and detention, statements were obtained from Dean which were later used against him in criminal proceedings. Defendant police officers did not read Plaintiff Dean his Miranda rights. Plaintiff Ivory Waddell had a valid Firearms Owner's Identification card. All gun charges against Plaintiff Dean were stricken with leave to reinstate.

Plaintiffs filed the complaint in this matter on August 3, 2007. They are seeking compensation for violations of their civil rights, and payment for attorneys' fees. Specifically, as is relevant to the motion now being considered, Count I alleges an illegal search without warrant or probable cause, Count II illegal seizure, Count III false arrest, and Count IV violation of the right against self-incrimination.

2. STANDARD OF REVIEW FOR MOTION TO DISMISS

On a motion to dismiss, the Court accepts all well-pleaded allegations in the plaintiff's complaint as true. Fed. R. Civ. Plaintiff. 12(b)(6). The purpose of a 12(b)(6) motion is to decide the adequacy of the complaint, not to determine the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). A complaint should not be dismissed unless it either fails to provide adequate notice -- as has been consistently required under Fed. R. Civ. P. 8 -- or doesn't contain "enough facts to state a claim to relief that is plausible on its face," that is, "nudged...across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). In other words, the 12(b)(6) standard establishes two "easy-to-clear hurdles" for a valid complaint; (1) whether it contains enough detail to provide the defendant with "fair notice of what the...claim is and the grounds upon which it rests"; and (2) whether its allegations "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974).

As an initial matter, Defendants' statute of limitations argument is an affirmative defense. Hatch v. Briley, 230 Fed.Appx. 598, 599 (7th Cir. 2007). Although "complaints do not have to anticipate affirmative defenses to survive a motion to dismiss, an exception occurs where ... the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations." United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005) (internal citation omitted). It is therefore "irregular" to dismiss a claim as untimely under Rule 12(b)(6). See Hollander v. Brown, 457 F.3d 688, 691 n.l (7th Cir. 2006) (citing United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004)). However, dismissal is nonetheless proper where the complaint plainly reveals that an action is untimely under the governing statute of limitations. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). In such cases, the validity of the defense must be "apparent from the complaint itself" and "unmistakable." Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002).

3. ANALYSIS

Defendants seek to dismiss Counts I, II, III and IV with respect to all adult Plaintiffs. They argue that the action was brought after the relevant two-year statute of limitations had already expired. See 735 ILCS §5/13-202; Owens v. Okure, 485 U.S. 235, 249-50 (1989) (state law determines applicable statute of limitations). Therefore, for each of the four contested counts, this Court must determine whether or not Plaintiffs knew or should have known of their legal claim more than two years before the case was filed on August 3, 2007. Determining this requires a two-party inquiry: "First, a court must identify the injury. Next, it must determine the date on which the plaintiff could have sued for that injury." Hileman v. Maze, 367 F.3d 694, 696 (7th Cir.2004) (citations omitted); Kelly v. City of Chicago, 4 F.3d 509, 510 (7th Cir. 1993) (applying federal law to section 1983 claim accrual).

There is little doubt that the primary events in question took place on the night of January 22, 2005, more than two years prior to the case's filing. Therefore, Plaintiffs must either show that the arrest itself could not have triggered this suit, or provide ...


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