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Ruba Othman, et al v. City of Chicago

October 23, 2012

RUBA OTHMAN, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This matter is before the Court on motions to dismiss [47 and 56] filed by Defendants City of Chicago and Aaron Carranza (collectively "City Defendants") and by Defendant Thomas Behan and on Defendants' objections [64] to Magistrate Judge Nolan's Order of September 13, 2012 [63]. For the reasons set forth below, the Court grants in part and denies in part both Defendants' motions to dismiss [47 and 56] and denies Defendants' objections [64] to Magistrate Judge Nolan's Order. To the extent that Defendants have moved to dismiss Plaintiff Susan Anderson in her individual capacity, Defendants' motions are granted. Defendants' motions are denied in all other respects.

I. Background*fn1

The Court previously granted the City Defendants' motion to dismiss as to the two federal claims (Counts I and II) over which it had original jurisdiction, but gave Plaintiffs leave to file an amended complaint if Plaintiffs believed they could cure the deficiencies noted in the Court's opinion. Specifically, the Court previously concluded that Plaintiffs had failed to allege that Defendant Officer Aaron Carranza was acting under color of law at the time that Ramiz Othman was shot.

The allegations in Plaintiffs' amended complaint are largely consistent with the allegations in Plaintiff's first complaint, with one major difference.*fn2 Plaintiffs' original complaint was silent on Othman's reasons for being at Defendants' house at the time that he was shot. Defendants maintain that Plaintiff was attempting to burglarize 5515 S. Normandy Avenue at the time that he was shot and that his presence was unauthorized. Plaintiffs did not address or deny Defendants' allegation that Othman's presence was unauthorized during briefing on the first motions to dismiss. Plaintiffs now maintain that Ramiz Othman was at Defendants' residence-in fact, was "invited" to Defendants' residence-specifically to meet with a City of Chicago police officer to resolve or assist with a previous arrest in Cook County. Plaintiffs further allege that Officer Carranza identified himself as a police officer and that Officer Carranza attempted to arrest Ramiz Othman during this encounter.*fn3 These allegations go directly to the Court's previous conclusion that Defendant Carranza was not acting under color of law at the time that Ramiz Othman was shot.

In their amended complaint, Plaintiffs bring three claims under 42 U.S.C. § 1983. Counts I and II of Plaintiffs' complaint offer alternative theories on how Officer Carranza "deliberately and recklessly disregarded and violated Ramiz Othman's Fourth and Fourteenth Amendment rights" by causing Ramiz Othman "serious bodily harm, injuries, and death." Count III alleges a Monell claim against the City. Plaintiffs also allege five claims against the City Defendants under Illinois law: Wrongful Death (Count IV), Survival Action (Count V), Excessive Force (Count VI), Battery (Count VII), and Respondeat Superior (Count VII). Plaintiffs' remaining three state law claims are alleged against civilian Defendant Beehan (Counts IX, X, and XI). Both the City Defendants and Behan have moved to dismiss Plaintiffs' amended complaint.

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).

III. Analysis

A. City Defendants' Motion to Dismiss

Defendants have moved to dismiss Plaintiffs' federal claims and also argue Plaintiff Susan Anderson lacks standing to sue the City Defendants in her individual capacity. The Court will consider each argument in turn.

1. Counts I and II against Defendant Carranza 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. The Court previously concluded that Plaintiffs had not alleged sufficient facts to demonstrate that Defendant Carranza was acting under color of law. See, e.g., Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515-16 (7th Cir. 2007) ("An action is taken 'under color of state law' if it involves a misuse of power, possessed by virtue of state law and made possibly only because the wrongdoer is clothed with the authority of state law.") (internal citations omitted). Previously, Plaintiffs alleged that Defendant Carranza was in his own home early on a Friday morning and Ramiz Othman entered Defendant's home. The Court concluded that nothing in the pleadings plausibly suggested that "the nature of the specific acts" committed by Carranza were under "color of law"; that he used "any police power"; or that he was "engaged in police activity" during his alleged unnecessary and unreasonable use of force. Rather, Plaintiffs pled only the conclusory allegation that Defendant was acting under color of law and employed as a police officer at the time. In other words, Plaintiffs' original complaint gave no indication that Defendant Carranza's actions were in some way related to his performance of police duties, a prerequisite to finding that Defendant Carranza was acting under color of law. See Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th Cir. 1990).

In their amended complaint, Plaintiffs paint a much different picture. Specifically, Plaintiffs allege that Carranza was holding himself out as an officer (by actually identifying himself as an officer) at the time he shot Ramiz Othman. They also allege, in some detail, that Ramiz Othman went to Defendants' residence specifically on police business: "Ramiz Othman had told others he was privately meeting with a City of Chicago police officer to resolve or assist with a previous arrest in Cook County." Am. Compl. at ¶ 58. Defendants maintain that Plaintiffs' allegations "lack and are unlikely to have evidentiary support," but, simply put, that is not the standard. Defendants' unsubstantiated Rule 11 concerns are not entitled to the same weight as the factual allegations in Plaintiffs' amended complaint.*fn4 Although the Court too has some concern about these allegations being left out of the original complaint and raised only in response to the Court's detailed opinion on the issue of color of law, and also about Plaintiffs' sources for these allegations (for instance, Plaintiffs' source for their allegation that Officer Carranza identified himself as a police officer), these concerns are for another day. Based on the liberal pleading standard followed in federal court and the allegations contained in Plaintiffs' amended complaint, they have sufficiently alleged that Defendant Carranza was acting under color of state law at the time he shot Ramiz Othman. Cf. Latuszkin v. City of Chicago, 250 F.3d 502, 506 (7th Cir. 2001) (holding that the district court's dismissal of the plaintiff's ยง 1983 claims was proper because the complaint failed to allege that the defendant officer-who was driving drunk and struck and killed a civilian-engaged in police activity, displayed any police power, or held himself out to be a police officer); United States v. Christian, 342 F.3d 744, 751 (7th Cir. 2003) (noting that an off-duty officer ...


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