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Reyes v. City of Chicago

October 28, 2008

JOSE REYES AND SONIA OLAZABA, ON BEHALF OF THEMSELVES INDIVIDUALLY AND AS THE PARENTS AND GUARDIANS OF DENISE FERNANDEZ AND KIMBERLY FERNANDEZ, MINORS, PLAINTIFFS,
v.
CITY OF CHICAGO, CHICAGO POLICE OFFICERS JEROME FINNEGAN, STAR #5167, CARL SUCHOCKI, STAR #18391, JAMES ELDERIDGE, STAR #2081, JOHN BLAKE, STAR #454, ERIC OLSEN, STAR #19456, GREGORY INSLEY, STAR #14260, FRANK VILLAREAL, STAR #10438, B. CORCORAN, STAR #17069, J. HURLEY, G. SALINAS, STAR #10293, B. RICE, STAR #16059, OFFICER HANDZEL, STAR #8116, OFFICER MARKIEWICZ, STAR #17092, OFFICER FERGUSON, STAR #14213, OFFICER NELLIGAN, STAR #8953, OFFICER HARVEY, STAR #9165, OFFICER MCGOVERN, STAR #18856, OFFICER CASE, STAR #1753, OFFICER CONNELLY, STAR #16869, OFFICER FOLEY, STAR #10613, SUPERINTENDANT PHILIP CLINE, DEBRA KIRBY, MAYOR RICHARD DALEY, AND UNKNOWN CHICAGO POLICE OFFICERS, STAR #17516, B. MAKA, STAR #12206, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Jose Reyes and Sonia Olazaba filed a complaint on behalf of themselves individually and as the parents and guardians of Denise and Kimberly Fernandez (minors), against defendants the City of Chicago (the "City"), Mayor Daley, Philip Cline, Debra Kirby ("City Officials"), Chicago police officers John Blake, David Case, Michael Connelly, Brendan Cocoran, James Eldridge, Brian Ferguson, James Foley, Lance Handzel, Michael Harvey, Gregory Insley, Bartosz Maka, Donovan Markiewicz, John McGovern, Christopher Nelligan, Eric Olsen, Bret Rice, Guadalupe Salinas, and Cheryl Hurley as administrator of the estate of John Hurley, (the "unindicted officers"), Jerome Finnegan, Carl Suchocki, Frank Villareal*fn1 , and other unknown Chicago police officers (collectively, "defendant police officers"). Plaintiffs assert violations of 18 U.S.C. § 1961, et. seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO") (Count I); 42 U.S.C. § 1983 for illegal search and seizure (Count II), due process (Count III), failure to intervene (Count IV), Monell*fn2 (Count V - only against the City), equal protection (Counts VI-VII), and excessive force (Count IX); and 42 U.S.C. § 1985 for conspiracy to deny equal protection (Count VIII); and state law claims for violation of 745 ILCS 10/9-102 (Count X - only against the City), trespass (Count XI), malicious prosecution (Count XII - only with respect to Plaintiff Reyes), intentional infliction of emotional distress (Count XIII), assault (Count XIV) and battery (XV).

The unindicted officers filed a motion to dismiss the complaint, alleging that the claims against them are time-barred and insufficiently pled. The City and City Officials filed a separate motion to dismiss, incorporating the unindicted officers' motion, including additional arguments. For the following reasons, defendants' motions are granted in part and denied in part.

I.

Plaintiffs allege that on March 27, 2004, the defendant police officers, members of the Special Operations Section ("SOS") of the Chicago Police Department, entered a bar and committed various offensive and criminal acts upon the patrons, one of whom was plaintiff Reyes. Defendant police officers then took plaintiff Reyes home (where plaintiff Olazaba and plaintiff minor Fernandez children were present), unlawfully entered the premises, threatened plaintiffs, displayed weapons, and stole or destroyed plaintiffs' property, all in violation of plaintiffs' rights. Plaintiffs also contend that defendants committed additional acts in furtherance of a criminal conspiracy, including perjury and obstruction by police officers and officials, and a failure by prosecutors, the police department and the City to properly investigate and prosecute the described criminal acts, among other things. Plaintiffs contend that the alleged criminal conspiracy started in 2002 and continues to date, and that they did not feel safe coming forward with their claims until the "facade surrounding the SOS section began to crumble." Their complaint was filed on December 6, 2007.

II.

In assessing defendants' motions to dismiss under Fed. R. Civ. P. 12(b)(6), I must accept all well-pleaded facts in the complaint as true and view all allegations in the light most favorable to plaintiff. McMillan v. Collection Prof'ls, 455 F.3d 754, 758 (7th Cir. 2006). Under Rule 12(b)(6), "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ---- U.S. ----, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

III.

A. All Counts Against Defendant City Officials

Defendant City Officials argue that suits against city employees and officials, when sued in their official capacities, are redundant and unnecessary where the municipal entity itself is also a named defendant. Schmidling v. City of Chicago, 1 F.3d 494, 495 n. 1 (7th Cir. 1993); McCullough v. City of Chicago, 971 F.Supp. 1247, 1249 n. 1 (N.D.Ill. 1997). Plaintiffs do not address this issue and do not oppose dismissal of the City Officials from the suit. Because the City Officials are only sued in their official capacities and the City is a named defendant in this case, defendants Daley, Cline, and Kirby are dismissed from this action.

B. Count I (RICO) Against the City and the Unindicted Officers

The unindicted police officers and the City move to dismiss plaintiffs' RICO count arguing that (1) the City cannot be liable under RICO because it is a municipality, (2) plaintiffs will not be able to establish the elements of RICO and have not alleged evidence to support a RICO claim, and (3) plaintiffs have no standing to bring a RICO claim because they cannot show injury to "business or property." Cannon v. Burge, No. 05 C 2192, 2007 WL 2278265 at *2 (N.D. Ill. Aug. 8, 2007). Defendants are correct in that municipalities are not liable for civil RICO claims. Genty v. Resolution Trust Corp., 937 F.2d 899, 914 (3rd Cir. 1991)(noting "Congress, in keeping with the common law, did not intend to subject municipal corporations to RICO liability"); Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir.1991)(citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 261, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981))(stating "RICO claims against [government entities] fail because [they] are incapable of forming a malicious intent"); Pelfresne v. Village of Rosemont, 22 F.Supp.2d 756, 761 (N.D.Ill. 1998) (village not liable, but action allowed against other defendants in their individual capacities). Therefore, the motion to dismiss plaintiffs' RICO claim against the City is granted.

The other arguments made by defendants are not persuasive. Contending that plaintiffs have not properly pled evidence to support or "establish" a RICO claim, defendants rely on Evans v. City of Chicago, 434 F.3d 916, 924-26 (7th Cir. 2006). However, the Evans court was considering a motion for summary judgment, so it properly considered evidence in that light. Here, contrary to defendants' arguments, plaintiffs need not plead evidence to survive a motion to dismiss.

The complaint alleges that all defendant police officers and various entities participated in a pattern of misconduct, involving a number of victims with distinct injuries, including, robbery, kidnaping, criminal conspiracy, intimidation, retaliation, damage to property, among other things. (See Compl. ¶¶ 23-50.) Specific to plaintiffs, the following allegations are made: Reyes was illegally searched, beaten, and kidnaped, money was stolen from him, he witnessed another "raid" where similarly offensive acts were committed, plaintiffs' home was illegally entered, and plaintiffs' property was stolen and damaged. (Compl. ¶¶9-22.) Defendants do not explain why these allegations, including those of damage to plaintiffs' home ...


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