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Brown v. City of Mounds

September 22, 2009

EDWARD R. BROWN, PLAINTIFF,
v.
THE CITY OF MOUNDS, ILLINOIS, MOUNDS CITY, ILLINOIS, WAYMON A. BUTLER, JR., WILLIAM J. WOOD, MARC STOUT, CHARLES J. MULLINS, DONALD JONES, JR., AND ROBERT E. RIDDLE, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

I. Introduction

On December 8, 2008, Plaintiff Edward R. Brown filed a eight count complaint against the City of Mounds, Illinois, Mounds City, Illinois, Waymon A. Butler, Jr., William J. Wood, Marc Stout, Charles J. Mullins, Donald Jones, Jr., and Robert E. Riddle in connection with an incident that occurred in Mounds City on December 21, 2007 which resulted in the Plaintiff being allegedly shot at by several police officers (Doc. 2). Counts I and II allege excessive force against the officers as well as Mounds City, Illinois. Count III is brought pursuant to 42 U.S.C. § 1983 and alleges a charge of conspiracy. Counts IV and V allege claims of assault and battery against both the officers and the city. Counts VI and VII alleges claims of intentional infliction of emotional distress against all Defendants. Count VIII alleges a claim of illegal conspiracy by the City of Mounds and Mounds City Police Departments.

In his complaint, Plaintiff alleges that on December 21, 2007 he fired a .22 caliber pistol into the air in self defense after allegedly being surrounded by a mob outside Ardie's Touch of Class Tavern. Plaintiff alleges that Chief Wood, Captain Mullins, Sergeant Jones, and Officer Riddle fired their service weapons repeatedly at the Plaintiff and Plaintiff then fled. Plaintiff further alleges that the Defendant pursued Plaintiff, continuing to fire at him until he fell to the ground, at which point, one of the Defendants shot Plaintiff behind his right ear which exited out of and destroyed his right eye (Doc. 2 ¶ 31-32).

On February 26, 2009 Defendants City of Mounds, Waymon A Butler, Jr., Marc Stout, Charles J. Mullins, Donald Jones, Jr., and Robert E. Riddle filed a motion to strike and dismiss portions of Plaintiff's Complaint (Docs. 20 & 21). Also on February 26, 2009, Defendants Mounds City, Illinois and William J. Wood filed a similar motion to strike and dismiss portions of Plaintiff's Complaint (Doc. 23). Specifically, Defendants move to dismiss Counts III and VIII of Plaintiff's Complaint because they fail to state a cause of action for conspiracy under 42 U.S.C. § 1983 and state law. Defendants further move to dismiss claims against Defendants in their official capacities as redundant to the claims brought against the City of Mounds. Defendants also move to strike Plaintiff's prayer for pre-judgment interest on both the federal and state claims, as well as Plaintiff's prayer for attorney's fees on Plaintiff's state law claims. Plaintiff has filed a response to Defendants' motions (Docs. 35 & 36). Defendants City of Mounds, Waymon A. Butler, Jr., Marc Stout, Charles J. Mullins, Donald Jones, Jr., and Robert E. Riddle have filed a reply (Doc. 37). The Court rules as follows.

II. Discussion

A. Motion to Dismiss 12(b)(6)

Defendants bring their motions to dismiss pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) for failure to state a claim. When ruling on a motion to dismiss for failure to state a claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), the Court must look to the complaint to determine whether it satisfies the threshold pleading requirements under FEDERAL RULE OF CIVIL PROCEDURE 8. Rule 8 states that a 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). In a recent opinion issued on May 21, 2007, the Supreme Court held that Rule 8 requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face" to survive a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 555, 127 S.Ct. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). The Seventh Circuit has read the Bell Atlantic decision to impose "two easy-to-clear hurdles":

First, 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.' Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; 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) (citations omitted).

1. 42 U.S.C. § 1983 Conspiracy Claim

Defendants argue that Plaintiff has failed to state a claim of conspiracy pursuant to 42 U.S.C. § 1983. Specifically, Defendants argue that Plaintiff's claim fails to allege that Plaintiff was denied access to the courts because of the alleged cover-up. Plaintiff's complaint alleges that the Defendants conspired to cover up the excessive use of force against plaintiff and to punish the plaintiff when he complained about the excessive use of force*fn1 (Doc. 2 ¶ 42). Plaintiff alleges that in furtherance of the conspiracy, Captain Mullin, Chief Wood, Sergeant Jones, and Officer Riddle lied to the Illinois State Police during its investigation, Mayor Butler, Jr. and Chief Stout refused to investigate the shooting, and Mayor Butler, Jr. and Chief Stout refused to discipline the officers involved (Id. at ¶¶ 36-38).

In order to allege a conspiracy under § 1983, a plaintiff must allege that there was "1) an express[ed] or implied agreement among defendants to deprive him of his constitutional rights, and 2) [an] actual deprivation of those rights in the form of overt acts in furtherance of the agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Plaintiff's Complaint alleges that Defendants conspired to cover-up their use of excessive force against the Plaintiff. When a plaintiff alleges such a cover-up as the basis for his conspiracy claim pursuant to § 1983, the basis of such a claim is the denial of plaintiff's right of access to the Courts.See Vasquez v. Hernandez, 60 F.3d 325, 329 (7th Cir. 1995). "[C]oncealment of constitutional violations, such as false arrest, excessive force, and malicious prosecution, are insufficient to raise a separate constitutional violation unless the victim is deprived his or her right to access to the courts." Keis v. City of Aurora, 149 F.Supp.2d 421, 424 (N.D. Ill June 5, 2001). See also Vasquez, 60 F.2d at 329. Here Plaintiff has not alleged that he was deprived of his right to access to the courts. While Plaintiff has alleged that Defendants refused to investigate and lied to the Illinois State Police, Plaintiff has not alleged that their conduct denied him access to the courts in any way. See Gibson v. City of Chicago, 910 F.2d 1510, 1523 (7th Cir. 1990) (dismissing a claim that defendants covered-up their constitutional violations because plaintiff had failed to allege a concrete injury, namely that he was denied access to the courts or that the cover-up contributed to the failure of his litigation).

Plaintiff, however, argues that his claim should not be dismissed because he has alleged that his Constitutional rights were violated. Plaintiff argues that a plaintiff alleging conspiracy must also allege a constitutional violation and he has done so by alleging violations of his Constitutional rights under the Fourth Amendment for excessive use of force. However, as Defendants point out, Plaintiff has not alleged that Defendants conspired to use excessive force, but rather conspired to cover-up the use of excessive force. A conspiracy claim alleging a cover-up involves a plaintiff's right to access of the courts. Vasquez, 60 F.3d at 329. See also Cefalu v. Village of Elk Grove, 211 F.3d 416, 422 (7th Cir. 2000)("when police officers conceal or obscure important facts about a crime from its victims rendering hollow the right to seek redress, constitutional rights are undoubtably abridged") (quoting Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984)). Here, plaintiff has not alleged that he has been denied access to the courts. See Vasquez, 60 F.3d at 329 ("there are no allegations...that [the plaintiffs] have been prevented from pursuing a... [claim]...or that the value of such an action has been reduced by the cover-up"). Plaintiff also argues that he can prove that defendants' actions have impeded his access to the courts, specifically alleging that by providing false information ...


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