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Steven Rusinowski and Joseph Rusinowski v. Village of Hillside

December 29, 2011


The opinion of the court was delivered by: Hon. Harry D. Leinenweber



Before the Court are Motions to Dismiss Plaintiffs' Second Amended Complaint. (The Court denies Defendants' Motions to Dismiss the first Complaint, Dkt.#s 12 and 14, as moot.) For the reasons stated herein, the Court grants in part and denies in part the Hillside Defendants' Motions to Dismiss; grants in part and denies in part Defendant Andreski's Motion to Dismiss Count IV and grants his request for a clearer statement of Count V; grants Elmhurst Memorial's Motion to Dismiss Count IV without prejudice; and denies Defendant DiDomenico's Motions to Dismiss.


At this stage in litigation, the Court accepts Plaintiffs' well-pleaded allegations as true. Plaintiffs Steven Rusinowski ("Steven" or "Rusinowski") and his father Joseph ("Joseph") bring this nine-count suit based on the events of March 4-10, 2011. Steven is 28, lives with his father in the Village of Hillside, and is a student at Elmhurst College. He is also a user of, a web site in which users role-play with one another in threatening, intimidating, or combative scenarios.

In late 2010 or early 2011, Steven met Defendant Robert DiDomenico ("DiDomenico") on, and DiDomenico began a campaign of harassment against Steven. DiDomenico began by encouraging people to send pizzas and taxis to Steven's home, and endeavored to send men to Steven's home to have sex with him.

On November 10, 2010, the Hillside Police received an anonymous call from "Michael," who reported that Joseph had two guns and had threatened to kill himself. Police visited the Rusinowskis' home, spoke to both men, and confirmed the report as false. Several similar incidents occurred in early 2011; each time the police concluded that the call was a false alarm. Similar calls were also made to Steven's school. On January 20, 2011, Steven filed a police report regarding DiDomenico's harassment.

On March 4, 2011, DiDomenico called the Hillside Police claiming that Steven was on his WebCam, threatening to kill himself or others or rape someone, while drinking and waving guns around. He may also have said that Steven threatened to rape someone in South Carolina (it is unclear whether the police received this information by tip or claim to have witnessed it themselves on Steven's video feed). Steven maintains that he never threatened anyone.

The Hillside Police, led by Chief Lukaszek ("Lukaszek"), responded to the call, warned neighbors, and banged on the Rusinowskis' door. Steven claims that he showed his hands when asked; the Hillside Defendants claim that Steven refused to come outside when ordered. Lukaszek pulled Steven to the ground outside, cutting his hand on the cement and hurting his back. Steven was then handcuffed and placed in a squad car. Steven claims that he was arrested, but the Hillside Defendants disagree. Once Steven was secured, the police searched his home without a warrant and seized two unloaded guns, ammunition, and two beer bottles (one empty, one half full) from Steven's desk. Steven had a permit for the guns.

The Hillside Police transported Steven to the station and held him there for one to two hours. From there, an ambulance took him to Elmhurst Memorial Healthcare ("Elmhurst"), where he was placed in seclusion. No doctors examined Steven at Elmhurst, but a "crisis center worker" told Steven that he was being committed and could not leave. Steven protested, but the worker was unreceptive to his explanation about the false alarms and harassment.

Lukaszek completed a petition to involuntarily commit Steven. The supervising physician at Elmhurst, Dr. David Andreski ("Andreski"), completed the accompanying physician's certificate, but without examining Steven as required by statute. Andreski also filled out a form transferring Steven to the J.J. Madden Mental Health Center ("Madden"). Andreski indicated on the form that he communicated the risks and benefits of the transfer (it is unclear to whom); however, he wrote down no benefits and indicated that Steven was "unstable." Steven claims that he signed a transfer form, but did not understand it as he was under duress and heavily sedated on Xanax.

Steven was held at Elmhurst for up to 12 hours and was guarded so that he could not leave. At approximately 2:00 a.m. on March 5, he was transported to Madden.

Steven remained at Madden until March 10, 2011. During that time, Steven was given the wrong medication for his anxiety disorder, and so could not sit still or calm down for five days. He reports being medicated against his will, but did not protest in order to keep the situation from getting worse. The mental health workers who worked with Steven noted no suicidal or homicidal tendencies. His hand injury went untreated and became infected.

Upon his release, Steven found that campus security at his school had received an anonymous tip that he kept a loaded gun in his car and was dealing drugs. Upon investigation, the claim was not substantiated. Campus security had also already been informed of Steven's hospitalization. Stephen's permit to carry firearms was also reviewed as a consequence of this incident.

On March 17, 2011, DiDomenico posted a video on entitled "[DiDomenico] Thinks It's Funny Calling the Cops on Beer Guy & [Steven] Part 2." In that and other videos, he taunts Steven and laughs about calling the police as a "concerned citizen." DiDomenico also implied in another video that he intended to see that Steven was expelled from his college.

Steven claims that due to this incident he suffers sleepless nights and a decreased appetite, and had to withdraw from one of his classes when he failed a midterm after his hospitalization. Joseph alleges that due to the stress of the incident he has had to have his blood pressure medication adjusted.

Plaintiffs bring the following claims: Count I (under 42 U.S.C.§ 1983 for illegal search and seizure) against Lukaszek; Count II (under 42 U.S.C.§ 1983 for excessive force) against Lukaszek; Count III for battery against Lukaszek; Count IV (for violation of the Illinois Mental Health and Developmental Disabilities Code) against Andreski and Elmhurst; Count V (for violation of the Emergency Medical Treatment and Active Labor Act) against Andreski and Elmhurst; Count VI (for false imprisonment) against Lukaszek and Elmhurst; Count VII (under 42 U.S.C.§ 1983 for unlawful detention) against Lukaszek; Count VIII (a Monell municipal liability claim) against the Village of Hillside; and Count IX (for intentional infliction of emotional distress) against DiDomenico.


On a motion to dismiss under Rule 12(b)(6), this Court accepts as true all well-pleaded facts in Plaintiffs' Complaint and draws all inferences in their favor. Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011). 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). Plaintiffs need not allege "detailed factual allegations," but must offer more than conclusions or "a formulaic recitation of the elements of the cause of action[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Naked assertion[s] devoid of further factual enhancement" will not suffice -- a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).

A civil commitment is a seizure implicating the Fourth Amendment, and may only be made upon probable cause. Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992). That is, the police may only seize an individual for commitment if they have reasonable grounds to believe that the person is subject to seizure under the governing legal standard. Id. In Illinois, that standard is when an individual "is subject to involuntary admission on an inpatient basis and in need of immediate hospitalization to protect such person or others from physical harm." 405 Ill. Comp. Stat. 5/3-606. See Baltz v. Shelley, 661 F.Supp. 169, 178 (N.D. Ill. 1987).


A. Hillside Defendants' Motion to Dismiss

Lukaszek and the Village move to dismiss the Second Amended Complaint under Rule 12(b)(6). As discussed below, the Court denies the motion as to the claims against Lukaszek, and grants it in part and denies it in part as to the Monell claim against the Village.

1. Attorneys' Fees for Battery and False Imprisonment

Lukaszek seeks to strike Plaintiffs' request for attorney's fees in the state law false imprisonment and battery claims. He points to the rule in Illinois that attorney's fees are generally not recoverable absent statutory authority or contractual agreement. Michaels v. Michaels, 767 F.2d 1185, 1205 (7th Cir. 1985). Plaintiffs do not address this motion to strike or articulate authority for obtaining legal fees in their response. Accordingly, the Court grants the Motion to Strike. See Automated Concepts Inc. v. Weaver, No. 99 C 7599, 2000 WL 1134541, at *7 (N.D. Ill. August 09, 2000).

2. Search and Seizure

The Hillside Defendants claim that Plaintiffs cannot state a claim for illegal search and seizure because the Complaint demonstrates that the police had probable cause. To support this assertion, they cite to the police report attached as an exhibit the Complaint. However, attaching the police report to the Complaint does not mean that Plaintiffs are bound by its contents. Guzell v. Tiller, 223 F.3d 518, 519 (7th Cir. 2000). Plaintiffs repeatedly dispute the contents of the police reports throughout their Complaint, for example, by asserting that Steven never threatened anyone. Indeed, Plaintiffs challenge almost every fact on which the Hillside Defendants rely to show "abundant justification" for their search. It is true that all of Plaintiffs' objections may not be sustainable - for example, it is not clear that Plaintiffs may use the collective knowledge doctrine to impute awareness of the false alarms to the searching officers. Cf. United States v. Blauvelt, 638 F.3d 281, 289 (4th Cir. 2011) (information undermining the credibility of a complainant is not subject to the collective knowledge doctrine). Even so, to the extent that the Hillside Defendants ask this Court to credit the police report and reject Plaintiffs' contrary allegations, this Court cannot do so at this stage of litigation.

Instead, this Court must determine whether, accepting Plaintiffs' well-pleaded allegations as true, probable cause existed as a matter of law. See United States v. Ellis, 499 F.3d 686, 688 (7th Cir. 2007) (where the underlying facts are not in dispute, the existence of probable cause is a question of law). On the current factual record, however, the Court cannot find that the Hillside Defendants had probable cause as a matter of law. If Plaintiffs eventually concede that Steven waved guns around on his WebCam, it may corroborate DiDomenico's tip enough to give police probable cause, even if he was not making threats. Cf. United States v. Clark, 657 F.3d 578, 582 (7th Cir. 2011). At this stage, however, Plaintiffs have made no such concession; they have merely asserted that DiDomenico fabricated the entire incident. Rule 8 simply does not require Plaintiffs to identify and confirm or deny every potentially relevant fact.

This Court thus cannot conclude that the face of the Complaint establishes probable cause. Because a warrantless search of the home is per se unreasonable absent both probable cause and exigent circumstances, the Court need not consider whether the Complaint sets forth facts establishing exigent circumstances to deny the motion.

3. Excessive Force and Battery

The primary issue underlying both the excessive force and battery claims is whether the force used by police was objectively reasonable under the circumstances. See Wells v. Coker, No. 08-3302, 2011 WL 4381488, at *7 (C.D. Ill. September 20, 2011). If it was, both claims are barred. The Hillside Defendants claim that Lukaszek's "minimal use of force" was justified when Steven refused to exit the home and show that he was not armed. To support that assertion, they point to the police report attached to the Complaint. They contend that where an exhibit contradicts allegations in a complaint, the exhibit trumps. However, the Seventh Circuit has specifically rejected the argument that by attaching police report to complaint, a plaintiff vouches for the accuracy of its contents. Guzell v. Hiller, 223 F.3d 518, 519 (7th Cir. 2000). Steven specifically alleges that he followed police orders; Plaintiffs clearly did not intend to vouch for the accuracy of any contrary statements in the police reports.

Evaluating the objective reasonableness of police action under the Fourth Amendment requires consideration of the totality of the circumstances and "careful attention to the facts and circumstances of each particular case." Graham v. Connor, 490 U.S. 386, 395-96 (1989). Because the facts alleged in the Complaint, as opposed to the contrary statements the police report, do not indisputably ...

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