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Damon Hurbert v. City of Galesburg

February 3, 2011


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


Thursday, 03 February, 2011 03:12:35 PM Clerk, U.S. District Court, ILCD


Now before the Court is Defendants City of Galesburg's, Philip Pieper's, Timothy Losey's, Jason Shaw's*fn1 , and Christopher Hootman's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Motion [#15] is GRANTED.


On April 30, 2010, Plaintiff Damon Hurbert ("Hurbert") filed a Complaint pursuant to 42 U.S.C. § 1983 against the Defendants the City of Galesburg and five of its police officers. Magistrate Judge John A. Gorman entered a written order directing Hurbert to file an amended complaint because his original was deficient as a matter of law. On May 20, 2010, Hurbert filed his first Amended Complaint which Magistrate Judge Gorman again found insufficient under federal notice pleading standards. Hurbert was given another chance to amend his complaint to make it more specific. Hurbert filed his Second Amended Complaint on June 24, 2010. Magistrate Judge Gorman again noted the deficiencies in Hurbert's latest Complaint and directed that Hurbert either file a third amended complaint within fourteen days, and if no such complaint was filed within that time, the City and Shaw would be dismissed from the lawsuit and so would the retaliation claim against Hootman. Hurbert timely filed his Third Amended Complaint on July 8, 2010, without naming Shaw as a defendant. As a result, Shaw was terminated as a party from the case. Magistrate Judge Gorman entered an order finding that Hurbert's Third Amended Complaint was sufficient for service on Defendants Pieper, Losey, Hootman, and the City of Galesburg. Defendants filed the instant Motion to Dismiss Hurbert's Third Amended Complaint in its entirety. Hurbert filed his Response and this Order follows.


A complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). That statement must be sufficient to provide the defendant with "fair notice" of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). This means that (1) 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" and (2) its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a "speculative level." EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). Conclusory allegations are "not entitled to be assumed true." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009) (citing Twombly, 550 U.S. 544 (2007)). When it comes to construing pro se complaints, pleading requirements are less stringent than when construing complaints drafted by lawyers. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000) (well settled Seventh Circuit law provides that pro se complaints are to be liberally construed); Haines v. Kerner, 404 U.S. 519, 596 (1972).

Plaintiff's Claims

The directive to liberally construe a pro se plaintiff's complaint is especially important here. As the record makes clear, Hurbert has struggled to articulate the facts upon which he bases his claims. Indeed, his previous attempts have included varying degrees of specificity, and have included explicit reference to false arrest and substantive due process. Hurbert's allegations could indeed be construed as claims for false arrest and false imprisonment against Defendants Pieper, Losey, and Hootman, and malicious prosecution against Defendant Losey. To succeed on a claim of false arrest or false imprisonment, a plaintiff must prove that he was arrested without probable cause. Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007); Hernandez v. Dart, 635 F. Supp. 2d 798, 806 (N.D. Ill. 2009) (citing Illinois case law which provided that the defendants must have had reasonable grounds to believe the plaintiff committed an offense); see also Jones by Jones v. Webb, 45 F.3d 178, 181 (7th Cir. 1995) (explaining that "a necessary predicate to any unlawful arrest claim under Section 1983 is the absence of probable cause"). Under Illinois law, to state a claim for malicious prosecution, a plaintiff must show: 1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant, 2) the termination of the proceeding in favor of the plaintiff, 3) absence of probable cause for such proceedings, 4) presence of malice, and 5) damages resulting to the plaintiff. Ferguson v. City of Chicago, 795 N.E. 2d 984, 986 (Ill. 2003).

Here, Hurbert states that Defendants Pieper, Losey, Hootman, and a fourth police officer came to a club in Galesburg, Illinois where Hurbert was waiting outside for a cab, and they told Hurbert to leave. He states he was not otherwise acting inappropriately, and the officers later testified that Hurbert was yelling and cussing the whole time the officers were telling him to leave. As to Defendant Losey, Hurbert alleges that Losey perjured himself during the city ordinance case against him, and that Hurbert was incarcerated for 15 months. Hurbert further states that he was kept away from his family and loved ones, he lost wages, and he suffered mental anguish. Read liberally, such facts state plausible claims for false arrest and false imprisonment against Defendants Pieper, Losey, and Hootman, and for malicious prosecution against Defendant Losey.

Hurbert additionally alleges that Defendant Hootman has deliberately gone out of his way and job to harass Hurbert by arresting Hurbert three times since his conviction for violating the "refusing to leave" ordinance was overturned. The most recent arrest occurred on October 25, 2009, and the resulting charges were allegedly dismissed due to insufficient evidence. While he states the circumstances of his March 18, 2006, arrest, he does not state the circumstances of his alleged subsequent arrests by Defendant Hootman. His allegations against Hootman fall short of stating a claim for false arrest where they are limited to what happened following the arrest, his allegations of harassment do not state a claim under Section 1983, and he has otherwise failed to state a cognizable claim under Section 1983. See 42 U.S.C. § 1983 (a civil action for deprivation of any rights, privileges, or immunities secured by the Constitution and laws may be commenced against persons acting under color of state law).

In regard to Hurbert's allegations against the City of Galesburg, he has failed to allege any plausible claim against that Defendant. Monell v. New York City Department of Social Services provides that a municipality cannot be held liable under Section 1983 solely because it employs tortfeasors, but can be liable to the extent there is an official policy that has caused a constitutional tort. 436 U.S. 658, 691 (1978). Here, Hurbert alleges that Galesburg established a "refusing to leave" ordinance which was determined by the Illinois courts to be unconstitutional in June of 2008. Because he does not allege that the City continues to enforce the ordinance in some way or otherwise alleges unconstitutional ...

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