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Fematt v. City of Chicago

March 1, 2012


Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge



This matter is before the Court on a motion to dismiss [14] filed by Defendant Jerome Finnigan, a motion to stay discovery [25] filed by the City of Chicago, and a motion to dismiss Plaintiff's Monell claim [53] filed by the City. For the reasons set forth below, the Court denies all three motions [14, 25, & 53]. This matter remains set for further status in the district court on 5/10/2012 at 9:00 a.m.

O[ For further details see text below.] Docketing to mail notices. Notices mailed by Judicial staff.


I. Background

For purposes of Defendants' motions to dismiss, the Court assumes as true all well-pleaded allegations set forth in the complaint. See, e.g., Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). At the time that the complaint was filed, Plaintiff Jose Fematt was a nineteen-year-old resident of Chicago, Illinois. At the time of the incident alleged in his complaint, Plaintiff was thirteen years old and living in the first floor apartment at 2032 North Keeler in Chicago, Illinois with his mother and younger sister. Defendant Officers are former members of the Special Operations Section ("SOS") of the Chicago Police Department, a unit that was ultimately disbanded after investigations by the Cook County State's Attorney and criminal indictments of several SOS members.

On the night of August 12, 2005, Plaintiff was baby-sitting his four-year-old sister while his mother was at work. While watching television in their pajamas, Defendant Officers broke into Plaintiff's home, pointed guns and him and his sister, handcuffed Plaintiff, interrogated him, and drove him around the neighborhood threatening and terrorizing him in an attempt to gain information about Plaintiff's upstairs neighbor. While one of Defendant Officers drove Plaintiff around, the others ransacked his home, damaging his family's belongings and leaving behind an apartment in total disarray. Defendant Officers finally left Plaintiff with a threat that if he told anyone what he had seen, they would come back and put him in jail. When Plaintiff's mother came home from work and found her frightened son in the ransacked apartment, the family gathered their belongings, left the apartment that night, and never returned. Plaintiff took Defendant Officers' threats seriously, and kept quiet about that night until he received a subpoena from the City of Chicago in the case of Chagolla v. City of Chicago, 07 CV 4557, another civil rights lawsuit brought by Plaintiff's then-upstairs neighbor.

Plaintiff filed this lawsuit on March 4, 2011 seeking redress for the wrongs that he allegedly suffered in his encounter with members of the now-disbanded SOS. Plaintiff alleges § 1983 claims against former Special Operations Section ("SOS") Officers Jerome Finnigan, Donovan Markiewicz, Margaret Hopkins, Keith Herrera, William Morales, Timothy Parker, and Paul Zogg for unlawful search, unlawful seizure/false arrest, excessive force, and conspiracy to deprive constitutional rights based upon the alleged events on August 12, 2005. Plaintiff also filed a Monell claim against the City, asserting a number of allegations relating specifically to the SOS and the criminal investigation of that unit. Defendant Finnigan has moved to dismiss Plaintiff's complaint as time-barred and vague. Defendant City of Chicago also has moved to dismiss Plaintiff's Monell claim, the only claim alleged against the City, because Plaintiff's allegations are so broad and generalized that he impermissibly attempts to hold the City liable under a theory of respondeat superior, rather than on account of a precise policy and practice.

A. Defendants' Motion to Stay

The City moves to stay this case and has been joined in the motion by several Defendant Officers. By way of background on the motion to stay, Defendant Officers Finnigan, Hopkins, Markiewicz, and Herrera, along with other former members of the SOS, were indicted by the State of Illinois. The state indictments contained accusations of armed violence, armed robbery, home invasion, residential burglary, theft, unlawful restraint, obstruction of justice, and official misconduct. In the fall of 2009, Hopkins and Markiewicz pled guilty to certain charges. On April 7, 2011, federal charges were brought against Defendants Finnigan and Herrera, along with two other SOS officers, stemming from the joint federal and state investigation into the SOS. In late April 2011, Defendant Finnigan pled guilty to the federal charges relating to robbery, tax evasion, and a murder for hire scheme and Defendant Herrera pled guilty to federal robbery charges. According to the federal criminal complaint that was filed in Finnigan's criminal case, "there is a federal investigation into the activities of the Special Operations Section."

None of the Defendants who have filed or joined this motion have any pending criminal charges. The motion to stay filed by Defendant City in this case is essentially the same motion it filed in multiple other S.O.S. cases in 2006 and 2007, including the Chagolla case. However, Defendants are not in the same positions in 2012 as they were in 2006 and 2007. Neither the state nor the federal government has filed any criminal charges against Defendants Zogg, Parker, or Morales, and there is no evidence of any continuing investigation into their conduct as police officers. All three are still working as Chicago police officers and are represented by the Corporation Counsel's office in this matter. The only two Defendants with pending criminal matters, Herrera and Finnigan, have not filed a motion to stay, nor joined in the City's. On April 19th and 26th, 2011, respectively, both pled guilty to federal charges, concluding all pending federal charges against them. Defendant Finnigan was sentenced in September 2011, and Herrera awaits sentencing following several delays.

Multiple civil lawsuits have been filed against these Defendants. Many of the cases have been resolved; however, as of 2011, there were still several cases pending in federal court against one or more of the Defendants in this case. In every case, Defendants have moved to stay the proceedings. In each case of which the Court is aware, the district court either declined to issue a stay or has lifted any stay that was in place. See, e.g., Adams v. City of Chicago, Hopkins, Herrera, et. al., 06 CV 0856 (Judge Norgle); Chagolla v. City of Chicago, Herrera, Finnigan, Hopkins, Zogg, Markiewicz, Parker and Morales, 07 CV 4557 (Judge Kennelly); Cook v. City of Chicago and Finnigan, 06 CV 5930 (Judge Gettleman); Estes v. Herrera, Finnigan, Hopkins, Parker, Morales and Markiewicz, 07 CV 5386 (Judge Zagel); Morales-Palencia v. City of Chicago, Finnigan, et. al., 08 CV 5365 (Judge Kocoras); Padilla, et. al., v. City of Chicago, Herrera, Hopkins, Zogg, Markiewicz, Parker, Morales, et. al., 06 CV 5462 (Judge Shadur); Castro v. City of Chicago, Finnigan, Herrera, et. al., 07 CV 931 (Judge Dow); Gutierrez, et. al., v. City of Chicago, Finnigan, et. al., 06 CV 4338(Judge Norgle); and Wisniewski, et. al. v. City of Chicago, et. al., 07 CV 6775 (Judge Norgle). The Court follows the reasoning advanced in these cases, including this Court's reasoning in ...

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