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Josephine Regalado v. Chicago Police Officers Timothy J. Hayes

November 3, 2011

JOSEPHINE REGALADO PLAINTIFF,
v.
CHICAGO POLICE OFFICERS TIMOTHY J. HAYES, #7308, JACK J. MESECK, #16664, MICHAEL G. PUTROW, #9758,
AND THE CITY OF CHICAGO, A MUNICIPAL CORPORATION DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Josephine Regalado ("Regalado") filed a Complaint against City of Chicago Police Officers Timothy J. Hayes, Jack J. Meseck, and Michael G. Putrow ("Defendants"), as well as against the City of Chicago. Regalado alleges that the individual Defendants violated her constitutional right against unlawful search and seizure and brings a claim against them under 42 U.S.C. § 1983 for false arrest and imprisonment. (Complaint at ¶¶ 37-39). Regalado also brings supplemental state-law claims against the individual Defendants for malicious prosecution and intentional infliction of emotional distress. (Id. at ¶¶ 40-44). In addition, Regalado brings a claim for damages against the City of Chicago under Illinois law 745 ILCS 10/9-102, The Local Government and Government Employees Tort Immunity Act. (Id. at ¶¶ 45-47). These state-law claims are before the Court pursuant to its grant of supplemental jurisdiction under 28 U.S.C. § 1367(a). Defendants move this Court to dismiss Regalado's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

For the reasons stated below, Defendants motion is granted in part and denied in part. Regalado's claim for intentional infliction of emotional distress is dismissed with prejudice; her remaining claims are not dismissed.

I. The Facts

On January 25, 2010, Officers Hayes, Meseck and Putrow ("Defendants"), in their official capacities as City of Chicago Police officers, executed a search warrant at a third floor apartment at 3502 S. Halsted Street. (Complaint at ¶ 13). The apartment belonged to Joseph Ramirez, who was, at the time, in a romantic relationship with Regalado. (Id. at ¶ 12). As part of their relationship Regalado occasionally slept overnight at the apartment, including on the night of January 24th and into the following morning when the events that give rise to this suit occurred. (Id. at ¶ 12).

Once inside the apartment, Defendants discovered Regalado, alone, sleeping unclothed in the bed. (Id. at ¶ 13a). Upon execution of the search warrant, Defendants allegedly recovered from the bedroom a paper bag containing four clear plastic bags of cocaine. (Id. at ¶ 13b). The Defendants also allegedly discovered a gun loaded with a live round of ammunition on top of the dining room shelf and a clear plastic bag containing live rounds from the top of the dining room closet shelf. (Id. at ¶ 13c-d). Defendants allegedly discovered one plastic bag of cannabis and cocaine on the top of the fire place mantel and four bags of cannabis in the refrigerator. (Id. at ¶ 13de).After allegedly recovering all of the aforementioned contraband from the apartment, Defendants placed Regalado under arrest. (Id. at ¶ 13g).

Regalado was then transported to the Area 1 Chicago Police Station for processing. (Id. at ¶ 13h). Defendant Putrow generated an arrest report and Defendant Hayes signed a criminal complaint against Regalado. (Id. at ¶¶ 15-16). According to Regalado, Messeck and Putrow both attested to and reported false and incomplete information regarding her in the official Chicago Police Department reports. (Id. at ¶ 28). This includes false information that Regalado lived at the third floor apartment of 3502 S. Halsted Street and that she retrieved clothing from inside the bedroom closet. (Id.). Bond was set at $25,000, and on January 26, 2010, Regalado was released from custody after posting a $2,500 bond. (Id. at ¶¶ 17-18).

A grand jury was convened and returned a six count indictment against Regalado. (Id. at ¶¶ 19-20). She was indicted for: (1) possession of a controlled substance with intent to deliver 100 to 400 grams of cocaine in violation of 720 ILCS 570/401(a)(2)(b); (2) possession of a controlled substance with intent to deliver 1 to 15 grams of cocaine in violation of 720 ILCS 570/401(c)(2); (3) possession of 30 to 500 grams of cannabis with intent to deliver in violation of 720 ILCS 550/5(d); and (4), three counts of unlawful use of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a). (Id. at ¶ 20). A trial court for the Circuit Court of Cook County entered a verdict in favor of Regalado on all charges. (Id at ¶ 20-2)*fn1 . According to Regalado, Defendants gave false testimony during both the grand jury proceedings as well as at her trial. (Id. at ¶ 30).

Regalado alleges that the Defendants falsely arrested and detained her without probable cause in violation of her Fourth Amendment right against unreasonable search and seizure. (Id. at ¶¶ 23-24, 37-39). She further alleges that the Defendants allowed for, and participated in, a malicious prosecution of her. (Id. at ¶¶ 25-31, 40-41). Finally, Regalado claims that the acts of the Defendants amount to extreme and outrageous conduct which caused her severe emotional distress. (Id. at ¶¶ 32-35). Regalado also seeks indemnification from the City in the event that Defendants are held liable to, or settle with, Regalado. (Id. at ¶¶ 45-47). The Defendants moved to dismiss Regalado's Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. The Standard of Review

When considering a Rule 12(b)(6) motion, the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the non-moving party. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To properly state a valid claim, the 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)). To determine whether a complaint meets this standard the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. If the factual allegations are well-pleaded, the Court assumes their veracity and then turns to determine whether they plausibly give rise to an entitlement to relief. See Id. A claim has facial plausibility when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See Id. at 1949.

III. Discussion

A. False Arrest and Imprisonment Claim Under 42 U.S.C. § 1983 Under 42 U.S.C. § 1983, a plaintiff may recover against municipal employees acting under color of state law if the employees deprived the plaintiff of a constitutional right. Regalado claims that the Defendants, operating under color of law, violated her Fourth Amendment right against unreasonable search and seizure by arresting her without probable cause. U.S. Const. amend. IV. The existence of probable cause is an absolute bar against a § 1983 false arrest claim. See Jackson v. Parker, 627 F.3d 634, 638 (7th Cir. 2010). Probable cause to arrest exists when a police officer has knowledge of the facts and circumstances such that he would reasonably believe that an individual was committing, or had committed, a crime. See United States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006). Probable cause to arrest under the Fourth Amendment exists if an objectively reasonable officer would believe that an individual was committing, or had committed, any criminal offense in his presence, no matter how minor that offense may be. See Fox v. Hayes,600 F.3d 819, 837 (7th Cir. 2010) (citing Devenpeck v. Alford, 543 U.S. 146, 153-156 (2004)).

Police officers operating under color of law may be entitled to assert the defense of qualified immunity, and when they are it is another bar to liability in an action brought under § 1983. Pearson v. Callahan, 555 U.S. 223, 231 (2009). As the Seventh Circuit has noted "police officers performing discretionary functions-such as determining whether they have probable cause to arrest-enjoy qualified immunity from suit unless it would have been clear to a reasonable police officer that, given the situation she confronted, her conduct violated a constitutional right." Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir. 2006) (citing Saucier v. Katz, 533 U.S. 194 at 201 (2001)). Defendants are entitled to assert the defense of qualified immunity only ...


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