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Gardunio v. Town of Cicero

November 30, 2009

HENRY GARDUNIO, PLAINTIFF,
v.
TOWN OF CICERO, LARRY DOMINICK, THOMAS BOYLE, ROLANDO HERNANDEZ, HERMAN DAVILLA, AND JAMES KLOSAK DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff, Henry Gardunio ("Gardunio"), filed a six-count complaint [1] on February 23, 2009 alleging various violations of state and federal law by Defendants the Town of Cicero, Cicero president Larry Dominick, and four Cicero police officers -- Thomas Boyle, Rolando Hernandez, Herman Davilla and James Klosak (collectively the "Defendant Officers"). Plaintiff's claims arise out of his June 7, 2007 arrest for false personation of a peace officer, and his subsequent prosecution for that offense. Before the Court is Defendants motion to dismiss and for other related relief [23]. Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for a more definite statement as to Counts I through IV, pursuant to Fed. R. Civ. P. 12(e). For the reasons stated below, Defendants' motion is granted in part and denied in part.

I. Background*fn1

Plaintiff is a long-time political supporter of Ramiro Gonzalez ("Gonzalez"), Defendant Larry Dominick's predecessor as president of the Town of Cicero. While Gonzalez was town president, Gardunio was a volunteer sworn Special Officer for Cicero, and personally served Gonzalez in that capacity until approximately April 30, 2004. Defendant Larry Dominick ("Dominick") defeated Gonzalez in the February 2005 Cicero presidential election, and is the current president of Cicero. Plaintiff has continued to support Gonzalez politically, including in Gonzalez's race against Dominick in the 2009 election.

On June 7, 2007, Plaintiff was arrested for false personation of a peace officer by the Defendant Officers. Following his arrest, Gardunio was charged and prosecuted for the offense of false personation of a peace officer. Plaintiff alleges that the charges against him were terminated in his favor under circumstances establishing his actual innocence on March 4, 2008. According to Plaintiff, he was arrested at Dominick' s direction as a result of his political affiliation with Gonzalez.

Plaintiff filed the instant suit against Dominick, the Defendant Officers, and the Town of Cicero alleging false arrest and conspiracy to falsely arrest under 42 U.S.C. § 1983 ("Section 1983") (Count I); malicious prosecution and conspiracy to maliciously prosecute under Illinois law (Count II); a Section 1983 class of one equal protection claim (Count III); a First Amendment retaliation claim (Count IV); and Monell (Count V) and indemnity (Count VI) claims against the Town of Cicero.

II. Legal Standard on a Rule 12(b)(6) Motion

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

A. Section 1983 False Arrest and Conspiracy Claims (Count I)

Count I alleges false arrest and conspiracy to falsely arrest claims under Section 1983 against Dominick and the Defendant Officers. The Court will address each of these claims in turn. However, as a preliminary matter, the Court notes that, contrary to Defendants'assertion, Plaintiff is not required by the Federal Rules of Civil Procedure to plead each claim in a separate count. Rule 10(b) provides that "each claim founded on a separate transaction or occurrence * * * must be stated in a separate count or defense * * * [i]f doing so would promote clarity." Fed. R. Civ. P. 10(b). Thus, separate counts are required only when necessary to clarify the claims. Patrick Patterson Custom Homes, Inc. v. Bach, 586 F.Supp.2d 1026, 1038 (N.D. Ill. 2008). Here, the complaint is sufficiently clear to apprise Defendants of the claims against them, as evidenced by the fact that Defendants in fact responded to each of the claims in their motion to dismiss. See Plohocki v. Chicago School Reform Bd. of Trustees, 2000 WL 150748, *6 (N.D. Ill. Feb. 4, 2000) ("courts in this district do not dismiss a claim for failure to comply with Rule 10(b) unless the complaint is not understandable and does not provide the defendant with fair notice of the claims against him") (citing cases).

1. False Arrest Claim Against Defendant Officers

Section 1983 "creates a federal cause of action for ' the deprivation, under color of [state] law, of a citizen' s rights, privileges, or immunities secured by the Constitution and laws of the United States.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Livadas v. Bradshaw, 512 U.S. 107, 132 (1994)). "Section 1983 is not itself a source of substantive rights; instead it is a means for vindicating federal rights conferred elsewhere." Id. To state a claim under Section 1983, a plaintiff must show (1) that he was deprived of a right secured by the Constitution or federal law, (2) by a person acting under color of law. See Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th Cir. 2006).

In Count I, Plaintiff asserts a claim against the Defendant Officers for false arrest in violation of the Fourth Amendment. The Fourth Amendment of the United States Constitution protects the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. Amend. IV. "An arrest is a seizure" under the Fourth Amendment, Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir. 2006), and an arrest without probable cause is an unreasonable seizure prohibited by the Fourth Amendment, Bentz v. City of Kendallville, 577 F.3d 776, 779 (7th Cir. 2009).

To state a claim for false arrest under Section 1983, a plaintiff must plead that the defendant lacked probable cause for the arrest. Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009) (lack of probable cause probable cause essential to unlawful arrest claim). Put differently, the existence of probable cause is an absolute defense to a Section 1983 false arrest claim. Id. Here, the parties dispute whether or not the Defendant Officers had probable cause to arrest Plaintiff.

"The police have probable cause to arrest an individual when ' the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.'" Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir. 1994) (quoting Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993)). Both the Supreme Court and the Seventh Circuit consistently have advised that the rule of probable cause is a "' practical, non-technical conception'that affords the best compromise between the interests of individual liberty and effective law enforcement." U.S. v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)); see also Brinegar v. U.S., 338 U.S. 160, 175 (1949) (noting that the probable cause determination involves "probabilities," which "are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act"). Therefore, probable cause "does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime." U.S. v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000). As long as "the totality of the circumstances" demonstrates "a probability or substantial chance of criminal activity on the suspect' s part, probable cause exists." Id.; see also Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000) (explaining that probable cause "requires more than bare suspicion" but "less than ' probability,'" and does not require "a showing that the officer' s belief is more likely true than false") (citations omitted).

In determining whether probable cause existed at the time of an arrest, "the court steps into the shoes of a reasonable person in the position of the officer" and considers the facts, not "' as an omniscient observer would perceive them,'but rather ' as they would have appeared to a reasonable person in the position of the arresting officer.'" Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008) (internal citations omitted). The proper inquiry is objective; thus, "an arresting officer' s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause." Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

In support of their position that the Defendant Officers had probable cause to arrest Plaintiff, Defendants attach to their motion to dismiss various court and police records related to the incident.*fn2 On a Rule 12(b)(6) motion to dismiss, the Court generally must confine its inquiry to the factual allegations set forth within the four corners of the operative complaint. See Rosenblum v. Travelbyus.com, 299 F.3d 657, 661 (7th Cir. 2002). In the usual case, therefore, if a party moving for a 12(b)(6) dismissal submits documents with its motion to dismiss, the Court either must ignore the documents or convert the motion to one for summary judgment. See Fed. R. Civ. Pro. 12(b); Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). Only documents that "are referred to in the plaintiff's complaint[,] are central to her claim," Venture, 987 F.2d at 431, and are "concededly authentic," fall within this "narrow" exception, Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). Where a defendant submits "a document in support of ...


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