United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court is a motion to dismiss  Plaintiff's first amended complaint , filed by Defendant Michael Newsome and later joined and adopted by Defendant Leon Rockingham, Jr. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
Plaintiff Charles Smith alleges that Defendants violated his constitutional rights when North Chicago police officer Raymond Hartmann slammed Plaintiff's face into the floor, fracturing his orbital socket and causing brain injuries and permanent vision loss, during the course of his arrest on December 12, 2011. According to Plaintiff, officers Hartmann and William Bogdala entered his third-floor hotel room at the Sleep Inn in Lake Bluff, Illinois and arrested him in connection with a burglary investigation. With his hands cuffed behind his back, Plaintiff attempted to escape down the hotel stairwell. Officer Hartmann managed to subdue the fleeing suspect. But after doing so, Plaintiff alleges, Officer Hartmann "without justification, slammed Plaintiff's face and head into the flooring of the landing in the stairwell" while Officer Bogdala "failed to intervene and in fact encouraged [Hartmann's] use of excessive force." Plaintiff now sues Hartmann for excessive force in violation of 42 U.S.C. § 1983, assault and battery, and negligence; sues Bogdala for allegedly violating Plaintiff's constitutional rights by failing to protect Plaintiff from Hartmann; and sues the City of North Chicago under Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). But, relevant here, Plaintiff's First Amended Complaint ("FAC") also alleges that Police Chief Michael Newsome and Mayor Leon Rockingham, Jr. violated Plaintiff's constitutional rights in their role as supervisors of and final policy makers for (as defined by the City of North Chicago Code of Ordinances) the North Chicago police department.
More specifically, Count V states that Newsome's and Rockingham's awareness of the city's recent history of police brutality, coupled with their failure to take steps to curb what Plaintiff describes as a "crisis of police officers using excessive force, " is tantamount to Newsome's and Rockingham's approval of their subordinates' unconstitutional behavior. FAC ¶ 83. Plaintiff alleges that police brutality in North Chicago was so rampant under Newsome's watch (during his five-year tenure as chief, officers filed 88 "use of force forms" to report incidents where a suspect was injured by an officer during the course of arrest) that the NAACP successfully lobbied the police department to issue a "Memorandum of Understanding Between the City of North Chicago and Minority Coalition, " which outlined a number of steps designed to increase the transparency of the department's complaint process and alleviate the epidemic. FAC ¶¶ 54-56. In spite of the written reforms, Plaintiff alleges, Newsome and Rockingham actively concealed police misconduct and deterred officers from reporting the misconduct of their colleagues. FAC ¶ 83. Specifically, Plaintiff contends that Newsome rigged the department's reporting system so that citizen complaints bypassed internal affairs' administrative process and were presented directly to him. FAC ¶ 57. For example, Plaintiff alleges that on September 4, 2011, Officer Hartmann "viciously slammed the face of [a man named] Dennis Carcamo into the ground and into the side of his squad car." FAC ¶ 69. Although Carcamo filed a citizen's complaint the following week, the complaint circumvented internal affairs, enabling Newsome to ignore it; Newsome never responded to the complaint nor disciplined Hartmann. FAC ¶ 70. To deter complaints within the department, Plaintiff claims that Newsome and Rockingham instructed the department's human resources director to reveal the names of confidential complainants, thereby creating a fear among police officers that "their fellow officers and or [Newsome] would harm their physical safety or careers" if they reported a colleague's use of excessive force. FAC ¶¶ 77-78, 83. By doing so, Plaintiff contends, Newsome and Rockingham "fostered a climate which facilitated the physical abuse of arrested individuals" and caused the constitutional violation that he allegedly suffered at the hands of Officer Hartmann. FAC ¶¶ 88-89.
Plaintiff notes that Newsome resigned on February 27, 2012 "[i]n the face of public outcry over police brutality" and amidst accusations that he embezzled $140, 000 of assets that had been seized by the department during drug raids. FAC ¶¶ 78, 80. Plaintiff alleges that, prior to his resignation, Newsome was motivated to conceal incidents of police abuse out of fear that the abusing officers would expose his embezzlement, about which the officers in the department knew either "through second-hand knowledge or direct participation." FAC ¶ 78.
Defendants Newsome and Rockingham now move to dismiss for failure to state a claim.
II. Motion to Dismiss Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). As previously noted, reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiffs' complaint and draws all reasonable inferences in their favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6) motion to dismiss, the claim 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 what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim 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). "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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.").
A. Failure to State a Claim
Defendants seek dismissal of Plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"), arguing that Plaintiff's FAC fails to state a constitutional claim against them because it lacks an allegation that they were personally involved in Hartmann's alleged use of excessive force. "In order for a supervisor to be liable, they must be personally responsible for the deprivation of the constitutional right." Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012). "To show personal involvement, the supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see." Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988)). Defendants argue that Plaintiff merely claims that Defendants "had a custom of not disciplining [their] subordinates, " which amounts to "inaction" rather than personal involvement in (or even acquiescence of) Hartmann's alleged transgression. MTD at 5. "There is no evidence that Chief Newsome [or Mayor Rockingham] stood by while the individual officers were going to violate Plaintiff's rights, " Defendants say. Id.
Plaintiff counters that, even though Defendants may not have physically participated in Hartmann's alleged act of abuse, they should still be liable as a proximate cause of Plaintiff's injuries because "[t]hey established and maintained a practice of allowing the use of excessive force during the detention and/or arrest of accused individuals knowing it would directly cause constitutional harm." Pl. Opp. Br. at 2. Defendants argue that these policy-related accusations may state Monell claims against the city, but that they cannot support claims, like this one, premised on supervisory liability. Plaintiff argues that the Third Circuit's 25-year-old decision in Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989), instructs otherwise.
In Stoneking, a student sued her school district and its superintendent, as well the principal and assistant principal of her school, for violations of Section 1983, seeking to hold the defendants responsible for the alleged sexual abuse that the plaintiff suffered by the school's band director. 882 F.2d at 722. At summary judgment, evidence demonstrated that other female students had previously complained that the band director had tried to rape or sexually assault them, but in response, the principal merely forbade the band director from having one-on-one contact with female students. Id. The evidence in the record also showed that, in total, the principal and assistant principal had received at least five complaints about sexual assaults of female students by other teachers and staff members in the four years leading up to the plaintiff's abuse. Id. at 728-29. Yet the defendants recorded these complaints in secret files that they kept at home and discouraged and/or intimidated students and parents from pursuing complaints after lodging them. Id. at 729. The plaintiff's theory of liability, accepted by the Third Circuit, was that the defendants, "with deliberate indifference to the consequences, established and maintained a policy, practice, or custom" that caused her abuse. Id. at 725. Analyzing the plaintiff's claim as one based on a due process right to be free from unjustified intrusions on personal security, the Third Circuit rejected the defendants' claim to qualified immunity because "the constitutional right [the plaintiff] allege[d], to freedom from invasion of her personal security through sexual abuse, was well-established at the time the assault upon her occurred." Id. at 726-27. Further, the court determined that it was clearly established in the Third Circuit at the time of the plaintiff's abuse that, although "the mere failure of supervisory officials to act or investigate cannot be the basis of liability, " "such officials may not with impunity maintain a custom, practice or usage that communicated condonation or authorization of assaultive behavior." Id. at 730. For that reason, the Third Circuit held that the ...