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Gloria Salcedo, et al v. City of Chicago

January 31, 2011


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


Before the Court is Defendants' motion [44] to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Defendants' motion is granted.


On August 28, 2009, Plaintiffs, Gloria Salcedo, Claudia Salcedo and Teresa Salcedo, filed a §1983 suit against Defendants, City of Chicago and Officers Jerome Finnigan, John Burzinski, James McGovern, Carl Suchocki, James Ryle, and Timothy McDermott, alleging due process violations. Specifically, Plaintiffs allege that on August 21, 2002, the individual Defendants arrested Plaintiffs without probable cause, charged them with obstructing a police officer, and made false statements about their conduct, in violation of their due process rights. FAC ¶¶ 6-7, 9.*fn2 Plaintiffs also seek recovery from the City of Chicago for the violations alleged in Count I, based on the Supreme Court's holding in Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658 (1978). Plaintiffs contend that the alleged violations arose from the City's practices, policies, or customs.

On December 04, 2009, the City of Chicago and four individual defendants moved to stay this case until the resolution of related state and federal criminal proceedings involving two of the individual Defendants.*fn3 They also filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs did not submit a response to Defendants' motions, despite the Court giving Plaintiffs an extension of time to respond. On July 08, 2010, the Court granted Defendants' motion to stay and denied Defendants' motion to dismiss without prejudice. The action was stayed for an initial period of six months. On June 29, 2011, Defendants filed a second motion [44] to dismiss pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure. Again, despite Plaintiffs asking for [48]-and the Court granting [50]-an extension, Plaintiffs failed to file a response to Defendants motion.

II.Legal Standard

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 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 the way the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed 2d 80 (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). "[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).


A. Plaintiffs' Due Process Claim Pursuant to 42 U.S.C. § 1983

Plaintiffs allege that Defendant Officers arrested them without probable cause, made false statements causing "plaintiffs to be charged, prosecuted, incarcerated and convicted" and withheld "exculpatory impeachment evidence from the plaintiffs and prosecutors," in violation of their due process rights. FAC ¶¶ 6-8. Defendants move to dismiss Count I, claiming that Plaintiffs' allegation cannot support a due process claim. The Court agrees.

To survive a motion to dismiss on a Section 1983 violation, Plaintiff must do more than make a general allegation that her rights were violated; she must allege a deprivation of a specific right. See Trautvetter v. Quick, 916 F.2d 1140, 1148 (7th Cir. 1990) (citing Wilson v. Civil Town of Clayton, 839 F.2d 375, 379 (7th Cir. 1988)). While the Court accepts all well-pled facts in the complaint as true, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). Here, Plaintiffs have alleged nothing beyond the conclusory assertions that their arrests were without probable cause and that Defendants made false statements and withheld exculpatory evidence. No facts are included to suggest what statements were made or what evidence was withheld. These bare allegations cannot support a due process claim.

Furthermore, as Defendants point out, to the extent that any facts can be gleaned from Plaintiffs' complaint, they allege false arrest, which is a violation of the Fourth Amendment, not due process. And while "at some point after a person is arrested, the question whether his continued confinement or prosecution is unconstitutional passes over from the Fourth Amendment to the [Fourteenth Amendment's] due process clause," Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (internal citations omitted), if the claim passes into the realm of the Fourteenth Amendment, rather than the Fourth Amendment, then the claim essentially becomes one of malicious prosecution. See McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003) (finding that "to the extent [plaintiff] maintains that [defendant] denied him due process by causing him to suffer a deprivation of liberty from prosecution and a contrived conviction * * * deliberately obtained from the use of false evidence, his claim is, in essence, one for malicious prosecution, rather than a due process violation") (internal citations omitted). But malicious prosecution is a tort action in Illinois*fn4 and "the existence of a tort claim under state law knocks out any constitutional theory of malicious prosecution." Newsome v. MaCabe, 256 F. 3d 747, 750 (7th Cir. 2001). Thus, any claim that Plaintiffs have for malicious prosecution arises under Illinois law and cannot act as the underlying constitutional violation necessary for a Section 1983 claim. Newsome, 256 F.3d at 750. Moreover, Plaintiff "cannot do an end run around . . . precedent by combining what are essentially claims for false arrest under the Forth Amendment and state law malicious prosecution into a sort of hybrid substantive due process claim under the Fourteenth Amendment." McCann, 337 F.3d at 786. Accordingly, Plaintiffs claim that Defendants violated their due process rights fails.

B.Plaintiffs' Monell Claim Against the City of Chicago

Plaintiffs also allege a Monell claim against Defendant City of Chicago. Defendants argue that this claim should be dismissed because (1) Plaintiffs' underlying Constitutional claim fails and (2) Plaintiffs failed to allege that any violation of their constitutional rights was the ...

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