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Davenport v. City of Chicago

August 31, 2009

LOUISE DAVENPORT, PLAINTIFF,
v.
CITY OF CHICAGO - MAYOR DALEY, THE CHICAGO POLICE DEPARTMENT, JODY WEIS, SUPERINTENDENT, OFFICER DOVGIN, OFFICER RICE, SGT. ENGSTROM, SGT. GILIBERTO AND OTHER UNKNOWN OFFICERS, ALL OF THE CENTRAL DISTRICT AND EACH IN HIS/HER OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM OPINION AND ORDER

Presently before us is Plaintiff Louise Davenport's application to proceed in forma pauperis with her complaint against the City of Chicago, Mayor Daley, the Chicago Police Department and its Superintendent, Jody Weis, and various known and unknown police officers. On July 27, 2009, Davenport brought this action under 42 U.S.C. § 1983, alleging that Defendants violated her constitutional rights and the Americans with Disabilities Act ("ADA") and engaged in tortious conduct related to her arrest and detention in 2007. As set forth below, we grant Davenport's application but dismiss several claims asserted in her complaint.

STANDARD OF REVIEW

Before granting leave to file in forma pauperis, we must first determine whether or not the plaintiff is indigent. 28 U.S.C. § 1915(a)(1). We must also conduct an initial review of the plaintiff's complaint and dismiss the action if we find that (1) it is frivolous or malicious; (2) it fails to state a claim on which relief may be granted; or (3) it seeks damages from a defendant who is immune from such relief. Id. § 1915(e)(2)(B)(i)-(iii). As to the second factor, failure to state a claim, we apply the test for dismissal under Rule 12(b)(6), which requires that a complaint contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 1974 (2007); see also George v. Smith, 507 F.3d 605, 608 (7th Cir. 2007). Because Davenport is proceeding pro se, we have a responsibility to construe her complaint liberally. Donald v. Cook Cty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996). It is the "well established duty of the trial court to ensure that the claims of a pro se litigant are given a fair and meaningful consideration." Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir. 1987).

ANALYSIS

A. Indigence

In support of her allegation of poverty, Davenport submitted the required financial affidavit. She states that she is not employed and does not have any source of income, but for food stamps. (IFP App. ¶¶ 2, 4.) She further declares that she has no assets or bank accounts containing more than $200. (Id. ¶¶ 4-9.) Moreover, Davenport is currently homeless. (Compl. ¶ 3.) Accordingly, we find Davenport's allegation of poverty to be true and thus consider whether she has stated any valid claims for relief against Defendants.

B. Sufficiency of Allegations under Rule 12(b)(6)

1. Factual Allegations

a. First Arrest and Loss of Bags

According to the complaint, on July 26, 2007, Officer Dovgin arrested Davenport, along with other homeless individuals, for trespassing under an overpass. (Id. ¶¶ 8-17.) At that time, Office Dovgin instructed Davenport to take everything out of her pockets, and she slipped her identification and money into one of her bags. (Id. ¶¶ 18-20.) Upon arrival at the police station, Davenport turned over her Medical Alert ID necklace and some other items, which were inventoried and sealed in plastic bags. (Id. ¶ 23.) Davenport became concerned about her other bags, which she did not initially see at the station and which contained a glucose meter, medication, important documents and other items. (Id. ¶¶ 21-24.) That evening, upon return from a trip to Mercy hospital, Davenport saw her bags at the station and noticed that they had been opened. (Id. ¶¶ 38-39.) Some items had been removed, inventoried and sealed in plastic property bags. (Id.) Davenport asked Officer Bradfield if she could remove her money and identification before the bags were taken, but he denied her request. (Id. ¶¶ 40-41.) An unknown white, male officer then arrived with two janitorial employees, who wheeled her bags away in a trash container. (Id. ¶¶ 42-43.) After Davenport protested, the unknown officer pointed to the receipt for her bags, which said they had been disposed of because they contained rotting food. (Id. ¶¶ 44-46.) Davenport complained to Sgt. Engstrom, who did nothing to assist Davenport. (Id. ¶¶ 47-49.)

Davenport was released from county jail on August 3, 2007, whereupon she inquired about her bags.*fn1 (Id. ¶ 63.) Officer Pickett informed her that her bags were not at county jail. (Id. ¶¶ 62-64.) Davenport went to the police station at 17th and State Street and asked about her bags, but was told that they were not there. (Id. ¶ 65.) After filing a complaint with the Office of Professional Standards ("OPS"), Davenport met with Ms. Tolliver, who instructed her to try the Property Secton at the facility at 11th and Homan. (Id. ¶¶ 67-69.) She did so but struck out. (Id. ¶¶ 70.) She then checked the facility at Harrison and Kedzie, though her bags were not there, and was told to try the warehouse at 21st and Michigan. (Id. ¶ 70.) A friend, who happens to be a police officer, contacted that location but informed Davenport that her bags were not at 21st and Michigan. (Id. ¶¶ 71-72.)

On October 4, 2007, Davenport met with an investigator, Sgt. Giliberto, about her OPS complaint and missing bags. (Id. ¶ 85.) She informed him that the officers intentionally took her bags so that she would be unable to use the documents in them in a pending court case.*fn2 (Id. ¶ 86.) He said that he would investigate, although he said he did not believe the officers took her bags. (Id. ¶ 91.) Davenport attempted to follow-up on the investigation several times and finally heard in November 2008 that it had been closed. (Id. at 13.*fn3 ) To date, she has not heard anything about ...


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