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Smith v. O'Hare

October 27, 2009

KOLAWOLE SMITH, PLAINTIFF,
v.
HILTON CHICAGO O'HARE, CHICAGO POLICE DEPARTMENT, RAY AVERY, CHRISTIAN SMITH, ERALD NIKOLLA, ARISTO AGUILAR, JAVIER CASTREVON, LEONARD RAGO, DARRIN VESTOSKY, AND JOVEN BERGANTINOS, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Frequent litigator Kowalowe Smith ("Smith") has filed about a dozen complaints in this district since the beginning of 2008. He brings this case against defendants Hilton Chicago O'Hare Airport ("Hilton"), the Chicago Police Department, Ray Avery ("Avery"), Christian Smith, Erald Nikolla ("Nikolla"), Aristo Aguilar ("Aguilar"), Javier Castrevon ("Castrevon"), Leonard Rago ("Rago"), Darrin Vestosky ("Vestosky") and Joven Bergantinos ("Bergantinos"). Defendants Hilton, Christian Smith, Nikolla, Castrevon, Rago and Vestosky filed a motion to dismiss plaintiff's third amended complaint for failure to state a claim. Because the plaintiff has been granted leave to proceed in forma pauperis, the Court also considers whether the third amended complaint states a claim as to the other defendants and whether the amended complaint is frivolous. See 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth below, the Court dismisses without prejudice Smith's third amended complaint.

I. Background

For purposes of this motion to dismiss, the Court takes as true the allegations in plaintiff's third amended complaint.

Smith's complaint arises out of his seven visits to the business center at the Hilton Chicago O'Hare Airport. Smith went to the business center, which according to Smith's complaint is open to the public, in order to use the computers. On multiple occasions, Smith was forced to leave while white individuals were not forced to leave.

It appears from Smith's complaint (which is not a model of clarity but is more clear than his previously-filed complaints) that his first visit to the Hilton's business center was on January 28, 2007. For "no reason but [Smith's] race", defendant Avery, a Hilton employee, called the Chicago Police. The police officers who answered the call told Smith to leave lest he be arrested. A white person who was also using the business center was not asked to leave.

Smith used the business center at the Hilton again on February 19, 2007. Hilton employees Avery and Christian Smith told plaintiff Smith to leave. When he refused, they called the police.

Smith returned to the Hilton business center two days later, on February 21, 2007. The only other person at the Hilton business center on that day was white. Hilton employee Nikolla called the police. When the police arrived, Smith informed them that the Hilton business center was open to the public, which Nikolla acknowledged. The five police officers stepped outside to discuss the situation. When Smith refused to leave the business center, the five Chicago police officers dragged him out and arrested him. The white individual was not forced to leave.

Despite the arrest, Smith waited less than two weeks before he returned to the Hilton business center on March 4, 2007. This time, Smith brought a camera. While he was minding his own business in the business center, Avery arrived with a Chicago police officer. Once again, Smith was arrested. Smith saw Hilton employees Rago and Bergantinos laughing in the background. Smith alleges that Rago, Bergantinos or Avery called the police.

The March 4, 2007 arrest required a court appearance, which Smith missed. (Smith had been at the hearing, but he had to leave early, presumably before his case was called.) When Smith missed the court appearance, the court issued a warrant for his arrest. Smith spent twelve days in the Cook County Jail. When Smith demanded a trial on the charges against him, the charges were dropped.

Smith returned to the Hilton's business center on October 8, 2007. That day, Hilton employee Aguilar told Smith he needed to leave because he had filed a charge of discrimination with the Chicago Commission on Human Relations. Smith left.

On December 29, 2007, Smith returned. Bergantinos told Smith to leave before Bergantinos called the police. Smith returned on January 5, 2008. Hilton employee Castrevon entered the business center, asked Smith his name and left. It is unclear from the complaint whether Smith was asked to leave, left on his own or was arrested on January 5, 2008.

II. Standard on a Motion to Dismiss

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Bell Atlantic, 127 S.Ct. at 1964-1965. A complaint must include enough factual allegations to "raise a right to relief above a speculative level." Bell Atlantic, 127 S.Ct. at 1965. "After Bell Atlantic, it is no longer sufficient for a complaint 'to avoid foreclosing possible bases for relief; it must actually suggest ...


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