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Talmon Hegwood, Jr v. City of Berwyn

December 16, 2010

TALMON HEGWOOD, JR., PLAINTIFF,
v.
CITY OF BERWYN, JOSEPH PETERSEN, K-MART DEPARTMENT STORE, ROBERT HARTZ, AND PAOLA RAIMONDI, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Talmon Hegwood, Jr. ("Hegwood") filed suit against the City of Berwyn and two Berwyn police officers, Joseph Petersen ("Petersen") and Paola Raimondi ("Raimondi"), as well as K-Mart Department Store ("K-Mart")*fn1 and K-Mart manager Robert Hartz ("Hartz") (collectively "Defendants"), alleging various civil rights violations. In the First Amended Complaint Count I alleges that Petersen illegally searched and seized Hegwood, in violation of Section 1983; Count II alleges that Petersen and Hartz conspired to deprive him of his constitutional rights, in violation of Section 1983 and 1985; Count III alleges false imprisonment against Petersen; Count IV alleges state law intentional infliction of emotional distress against Raimondi; Count V alleges indemnification against the City of Berwyn; Count VI alleges respondeat superior against K-Mart; Count VII alleges state law false arrest against Petersen and Hartz; Count VIII alleges state law malicious prosecution against Petersen and Hartz; Count IX alleges state law intentional infliction of emotional distress against Petersen and Hartz; and Count X alleges state law battery against Raimondi. K-Mart and Hartz (collectively "K-Mart Defendants") move to dismiss Counts II, VI, VII, VIII, and IX. For the following reasons, the K-Mart Defendants' Motion to Dismiss is granted.

BACKGROUND

On October 19, 2008, Hegwood alleges that he called the Berwyn Police Department to report a child abduction. (First Am. Compl. ¶ 9.) Upon arrival at the scene, police questioned Hegwood and another person, who said Hegwood approached him in the bathroom and made him feel uncomfortable so he asked Hegwood to leave. (R. 89, Hegwood's Amended Resp. to Mot. to Dismiss 90.) The responding officers did not allow Hegwood to leave the restaurant while they conducted a warrant check by radio, and the check revealed that there was an outstanding warrant to arrest Hegwood. (Id. at 88, 90.) The officers therefore took Hegwood into custody. (First Am. Compl. ¶ 10.)

At the police station the officers conducted an inventory of Hegwood's possessions, which consisted of a rolling duffel bag and contents within the bag. (R. 89, Hegwood's Amended Resp. to Mot. to Dismiss 90.) The duffel bag had a K-Mart price tag on it. (Id. at 90.) Inside the bag were a variety of K-Mart items, including hats, shirts, and jackets; these items still had prices tags and theft detection devices attached and some were still on hangars. (Id.) Hartz, a K-Mart manager, identified these items as stolen merchandise based on a surveillance video of Hegwood while he was in the store. (Id. at 65, 78, 90-93.) A grand jury indicted Hegwood for possession of stolen property and theft on November 13, 2008. (Id. at 89.) The State dismissed the theft charge nollo prosequi because Hegwood was already found guilty of violating his conditional discharge and a finding of guilty for the theft charge would have been served concurrently and would not have increased his overall time in prison. (Id. at 33.)

Hegwood claims that Officer Petersen, who responded to Hegwood's call, arrested him without probable cause upon arriving at the scene. (First Am. Compl. ¶ 10.) Hegwood further contends that Officer Petersen falsely filled out police reports regarding his arrest for theft and violating probation. (First Am. Compl. ¶ 14.) He also claims that in the course of preparing for the related criminal prosecution Hartz conspired with Petersen to "provide false and misleading information" to the state prosecutors. (First Am. Compl. ¶ 13.)

STANDARD OF REVIEW

The K-Mart Defendants seek dismissal of Hegwood's claims under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. To state a proper claim, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id.

DISCUSSION

I. Count II Against Hartz: Conspiracy Under 42 U.S.C. §§ 1983 and 1985 Hegwood claims that Petersen and Hartz conspired to deprive him of his constitutional rights, in violation of 42 U.S.C. §§ 1983 and 1985. To successfully plead conspiracy, the plaintiff must "indicate the parties, general purpose, and approximate date [of the conspiracy] so that the defendant has notice what he is charged with." Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002).

Count II specifically alleges that Petersen and Hartz "reached an agreement amongst themselves to unlawfully search and seize Plaintiff, and to thereby deprive Plaintiff of his Constitutional rights." (First Am. Compl. ¶ 19.) The Court interprets this allegation to refer to an alleged agreement between Petersen and Hartz to seize, arrest and search Hegwood on October 19, 2008. Hegwood fails to allege the reason for this alleged agreement, when it was entered into, the specific role of each conspirator or even the end goal of the agreement. See Ryan v. Mary Immaculate Queen Center, 188 F.3d 857, 859-60 (7th Cir. 1999) (no conspiracy because "form and scope of conspiracy" were "entirely unknown" based on allegations); Walker, 288 F.3d at 1007-08. Without these facts alleged, Hegwood fails to allege a conspiracy. These are insufficient allegations to allow Hartz to "prepare his defense" or for the court to "determine whether the claim [is] within the ballpark of possibly valid conspiracy claims." Walker, 288 F.3d at 1008. The alleged conspiracy based on the arrest therefore fails to state a claim.

Although Hegwood adds a location for his allegation of conspiracy against the Cook County State's Attorney, specifically that it occurred at the courthouse in October and November 2009, this allegation suffers from the same defect as the previous allegation. Hegwood's conclusory allegation again fails to provide the purpose of this alleged agreement, the false information provided, and the role of each conspirator. These facts are similarly insufficient to put Hartz properly on notice and narrow the focus of discovery for the parties. Hegwood's alleged conspiracy claims are therefore dismissed.

II. Count VI Against K-Mart: Respondeat Superior

Hegwood's First Amended Complaint asserts that K-Mart is liable under the theory of respondeat superior because Hartz "committed the acts alleged above [conspiracy and false arrest] in the scope of their [sic] employment as ...


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