United States District Court, N.D. Illinois, Eastern Division
JOHN BAMBERG, as Independent Administrator of the Estate of JAVAR BAMBERG, deceased, Plaintiff,
CITY OF EVANSTON, Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Plaintiff John Bamberg's first amended complaint alleges an equal protection violation, wrongful death, and intentional infliction of emotional distress by Defendant City of Evanston. Defendant has moved to dismiss  Bamberg's first amended complaint. For the reasons set forth below, the Court grants in part Defendant's motion to dismiss  and dismisses Plaintiff's § 1983 claim for an alleged constitutional violation. The Court dismisses without prejudice Plaintiff's state law claims.
On December 12, 2012, around 2:00 a.m., Plaintiff John Bamberg's son, Javar Bamberg, was walking in an alley located at the 1700 block of Grey Avenue and was shot by an adult male whose identity remains unknown to date. Immediately after the incident, a 911 call was placed from within the vicinity of 1700 Grey Avenue by a witness to the shooting, who demanded emergency attention for Javar. The City of Evanston allegedly responded to the 911 call by dispatching police officers to the location. After arriving at the scene, officers secured and cordoned off the area. Plaintiff alleges that when the officers arrived on the scene, Javar was still breathing and able to speak, albeit feebly, and to move his extremities. According to Plaintiff, the officers impeded Javar's recovery by failing to timely notify the proper medical personnel of the need for immediate attention and transfer to the nearest hospital or trauma center. Due to this alleged failure to timely notify the proper medical personnel, Javar died on the scene.
On September 23, 2013, Plaintiff filed this action against the City of Evantson, the Evanston Fire Department, and Evanston Police Department, alleging a violation of Javar's equal protection rights, as well as state law claims of intentional infliction of emotional distress ("IIED") and wrongful death. On November 26, 2013, Defendants filed a motion to dismiss Plaintiff's complaint for failure to state a claim. Plaintiff sought leave from the Court to amend his complaint, which the Court granted, and then filed a first amended complaint, asserting essentially the same claims but naming only the City of Evanston. The City of Evanston contends that Plaintiff has failed to cure the deficiencies in his complaint and moves to dismiss Plaintiff's first amended complaint.
II. Legal Standard for Rule 12(b)(6) Motion to Dismiss
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 suit. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citations omitted). To survive a Rule 12(b)(6) motion to dismiss, a complaint must satisfy the requirements of Rule 8. Fed.R.Civ.P. 8. First, the 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), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (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 Bell Atlantic, 550 U.S. at 555, 569 n.14). "[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." Bell Atlantic, 550 U.S. at 579-80. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations, quotation marks, and brackets omitted).
In Count I, Plaintiff asserts a § 1983 claim for violation of Javar Bamberg's right to equal protection of law. Plaintiff alleges that Evanston is divided by socio-economic status and that the more affluent portions of Evanston are inhabited by those of Caucasian descent, while the less affluent are home primarily to individuals of African-American descent. Plaintiff alleges that Evanston expends more of its resources on the affluent Caucasian portions of the City. Plaintiff further alleges that Evanston personnel recognized Javar from prior encounters and that due to his racial background, "Evanston Police Officers did not immediately notify emergency medical personnel" of Javar's condition. Finally, Plaintiff alleges that because of Javar's alleged association, Evanston "arbitrarily and irrationally allowed Javar to bleed to death before notifying emergency medical personnel." Plaintiff claims that these actions violated Javar's equal protection rights.
A. Matters of Public Record
When exhibits are matters of public record, a court may take judicial notice of them for the purpose of deciding a motion to dismiss without converting the 12(b)(6) motion into a motion for summary judgment. See Palay v. United States, 349 F.3d 418, 425 n.5 (7th Cir. 2003) ("in resolving a motion to dismiss, the district court is entitled to take judicial notice of matters in the public record"); Anderson v. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000) (same). The Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., provides that police and fire department records and 911 and dispatch audio are all public record (with certain exceptions and redaction of sensitive information not pertinent to this case). The police and fire department records referenced below are a matter of public record and can be recognized by this Court for the purpose of Defendant's Rule 12(b)(6) motion to dismiss.
At 1:59 a.m., Evanston Police responded to a "shots fired" call in the area of 1800 block of Hovland in Evanston, Illinois. At 2:01 a.m., the victim, later identified as Javar, was located in the alley behind 1731 Grey. Javar appeared to be breathing, but was unresponsive. Javar did not speak or move. Upon seeing Javar, Evanston Police notified dispatch. At 2:02:59, the alarm sounded at the Fire Department. The Evanston Fire Department Emergency Medical Services ("EMS") engine was dispatched at 2:03:33 a.m and the "rescue unit" or ambulance was dispatched at 2:03:34 a.m. The EMS engine was en route by 2:04:53 a.m., and the ambulance was en route at 2:05:52. The EMS engine was the first dispatch vehicle to arrive at 2:06:53 a.m. Upon arrival, one of the paramedics assigned to the engine observed a gunshot to Javar's chin leaving massive trauma to his head. Based on matters of public record, within five minutes of the time that the police first located Javar, the EMS engine was on the scene verifying that Javar had no vital signs.
B. Equal Protection (Count I)
Plaintiff's claim based on equal protection must establish that the City of Evanston treated Javar differently from others who were similarly situated, that the City intentionally treated him differently because of his membership in a class, and that the discriminatory intent was not rationally related to a legitimate governmental interest. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 953-54 (7th Cir. 2002). In other words, Plaintiff must show that the City discriminated against Javar based on his membership in a definable class. See Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ("In order to establish liability under § 1983, [a plaintiff] must show that the defendants acted with a nefarious discriminatory purposes and discriminated against him based on his membership in a definable class.") (internal citations omitted). Plaintiff must establish purposeful or intentional discrimination implying "[m]ore than intent as volition or intent as awareness of consequences * * * [but that a] decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part ...