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Choyce v. Friar

June 24, 2008


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Mark Friar's, Defendant Darrel Johnson's, Defendants Unknown Officers' (collectively referred to as "Defendant Officers"), and Defendant City of Chicago's ("City") motion to dismiss. For the reasons stated below, we grant Defendants' motion to dismiss.


On or about September 9, 2006, Plaintiff Lillie Choyce ("Choyce") alleges she was present at the scene of an altercation in which she was not involved. During the altercation, Choyce was allegedly thrown to the ground by one or more of Defendant Officers and sustained injuries. Choyce contends that the act of throwing her to the ground constituted an unreasonable seizure in violation of her rights under the Fourth Amendment to the United States Constitution. Choyce alleges that while one or more of Defendant Officers used actual force against her, other Defendant Officers failed to intervene to prevent the use of force against her. Choyce alleges that some or all of Defendant Officers engaged in a conspiracy to injure her and that the actions of Defendant Officers were a result of a custom, practice, or policy of the City.

Choyce first brought an action for her claims on March 30, 2007, in case number 07 C 1790 ("2007 Case"). This court dismissed that action without prejudice on December 17, 2007. Choyce then re-filed the instant action on January 9, 2008. In Choyce's amended complaint, she brings (1) a claim for excessive force brought under 28 U.S.C. § 1983, ("Section 1983"), (2) a conspiracy claim brought under Section 1983, (3) a Monell claim brought against the City, and (4) a state law claim for indemnification brought against the City. Defendants filed the instant motion to dismiss.


In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


In support of their motion to dismiss, Defendants raise two arguments: (1) that the instant action is barred by the doctrine of res judicata, and (2) that, as with the 2007 Case, Choyce has not stated a claim under the federal notice pleading standards.

I. Res Judicata Issue

Defendants argue that since this case represents the refiling of the 2007 Case, which they claim was adjudicated on the merits, this case is barred by the doctrine of res judicata. The doctrine of res judicata,also known as "claim preclusion," bars parties from re-litigating issues that should have been raised in a prior action when there has been a final judgment on the merits in that action. Highway J Citizens Group v. United States Dept. Of Transp., 456 F.3d 734, 741 (7th Cir. 2006); Allen v. McCurry, 449 U.S. 90, 94 (1980). Choyce does not dispute the fact that this case represents the re-filing of the 2007 Case and, thus, the only dispute is whether the 2007 Case is considered to have been adjudicated on the merits.

In dismissing the 2007 Case, this court specifically indicated that the action was dismissed without prejudice and that Choyce could "file a new and timely action and properly name individual officers allegedly involved in the alleged constitutional deprivation." (OR 12/17/07 - O7 C 1790). It is well established in the federal courts that an action dismissed "without prejudice" is an action that may be re-filed again in the same court, subject to other substantive and procedural bars such as the statute of limitations. Semtek Int'l., Inc. v. Lockheed Martin Corp., 531 U.S. 497, 498 (2001)(stating that "'an adjudication upon the merits' in Rule 41(b) is the opposite of a dismissal without prejudice--that is, it is a dismissal upon the merits"). In this court's order dismissing the 2007 Case, we specifically stated that the action was dismissed "without prejudice" and, therefore, the action was not adjudicated on the merits. Rule 41(b) provides that a dismissal is on the merits "unless the court in its order for dismissal otherwise specifies." Fed. R. Civ. P. 41(b). This court did specify as such and, therefore, the 2007 Case was not adjudicated on the merits. Since the 2007 case was never adjudicated on the merits, the doctrine of res judicata does not apply.

II. Notice Pleading Issue

Defendants also move to dismiss the action based on the argument that, despite the court's specific order requiring any new action by Choyce to provide sufficient allegations with respect to the constitutional deprivations alleged, Choyce has still failed to satisfy the federal notice pleading standard. In the 2007 Case, Choyce initially named only the City and "Unknown Officers" as defendants. (07 C 1790 Compl. 1). As in the instant action, Choyce alleged in the 2007 Case that she was thrown to the ground by "one or more" of the unknown officers and that the other unknown officers engaged in a conspiracy to batter and assault her. (07 C 1790 Compl. Par. 5-6). On May ...

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