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Carter v. Dolan

June 25, 2009

LA'TANYA TIERRA CARTER, PLAINTIFF,
v.
JOHN P. DOLAN, CRAIG A. DUNDERDALE, KEITH E. KARCZEWSKI, VERNON MITCHELL, JR., SCOTT M. WOLFF, MATTHEW P. CLINE, DANIEL J. DE LOPEZ, EDDIE M. YOSHIMURA, AND JOSEPH F. GORMAN, DEFENDANTS.



The opinion of the court was delivered by: James B. Zagel United States District Judge

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. Background

Plaintiff La'Tanya Tierra Carter has filed a Section 1983 lawsuit against nine Defendant Chicago Police Officers, alleging Defendants deprived her of her rights under the Fourth and Fourteenth Amendments to the United States Constitution. This case arises out of the execution of the same search warrant that is the subject of the case Graham, et al. v. Dolan, et al., 08 C 889, currently pending before another Judge of this court. In this case, Defendants previously filed a motion to dismiss, arguing that Plaintiff's initial pleading failed to provide them with notice of the allegations asserted against them. At a subsequent hearing, I instructed the parties to work together to determine a procedure which would allow Plaintiff to make some kind of identification to fill the gaping hole in her complaint. I further noted that "the source of her damages is not something for which it is at all likely that nine officers are responsible, even if it was wrong."

On March 5, 2009 counsel for Defendants wrote a letter to counsel for Plaintiff offering to arrange for a photo array of the Defendant officers at 3511 South Michigan Avenue so that Plaintiff could "point out the officers that she claims wronged her and specify how they interacted with her." The letter further listed several dates and times at which an agent would be available to conduct the array. Plaintiff made no effort to participate in a photo array or other comparable procedure. Instead, Plaintiff filed a First Amended Complaint on April 7, 2009. Defendants filed another motion to dismiss, arguing that despite my instruction for Plaintiff to provide sufficient allegations with regard to the constitutional violations alleged, Plaintiff has still failed to satisfy the federal notice pleading standard. For the following reasons, Defendants' motion is denied in part and granted in part.

II. Standard of Review

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. In ruling on such a motion, I accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To state a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). That said, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what . . . the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation and citation omitted). The "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

III. Factual Allegations

Plaintiff's amended complaint sets forth the following facts underlying her allegations:

6. According to police reports and sworn defendant testimony in a related civil rights case, on February 9, 2007, defendants, JOHN P. DOLAN, CRAIG A. DUNDERDALE, KEITH E. KARCZEWSKI, VERNON MITCHELL, JR., SCOTT M. WOLFF, MATTHEW P. CLINE, DANIEL J. DE LOPEZ, EDDIE M. YOSHIMURA, and JOSEPH F. GORMAN, were all part of a police intelligence team that was assigned to execute a search warrant for the first floor and basement of 1136 N. Monticello in Chicago, Illinois.

7. Defendant JOSEPH F. GORMAN was the supervising lieutenant. Defendant MATTHEW P. CLINE was the sergeant who was the search team supervisor. Defendant EDDIE M. YOSHIMURA was a sergeant who assisted MATTHEW P. CLINE in the supervision of the search. Defendant JOHN P. DOLAN was the affiant on the search warrant and, as such, had most of the contact with a confidential informant, petitioned the court for issuance of the warrant, and organized and directed the search team. Defendant KEITH E. KARCZEWSKI was the breech officer in charge of breaking down the doors. CRAIG A. DUNDERDALE, VERNON MITCHELL, JR., SCOTT M. WOLFF, and DANIEL J. DE LOPEZ were police intelligence team members whose assignment it was to assist in entering and searching the premises.

8. On February 9, 2007, at approximately 10:00 PM, all defendant police officers, that is, JOHN P. DOLAN, CRAIG A. DUNDERDALE, KEITH E. KARCZEWSKI, VERNON MITCHELL, JR., SCOTT M. WOLFF, MATTHEW P. CLINE, DANIEL J. DE LOPEZ, EDDIE M. YOSHIMURA, and JOSEPH

F. GORMAN, entered and raided the apartments at 1136 N. Monticello, in Chicago, Illinois.

9. On that date and at that time, plaintiff, LA'TANYA TIERRA CARTER, was a guest in the second floor apartment of 1136 N. Monticello, Chicago, Illinois, ...


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