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Miller v. City of Harvey

United States District Court, N.D. Illinois, Eastern Division

July 15, 2014

Karnischa Miller, on her own behalf and on behalf of her minor children, Ks. W. and Ky. W., Plaintiffs,
City of Harvey, et al., Defendants.


VIRGINIA M. KENDALL, District Judge.

Defendants City of Harvey, Officer Davres, Officer James Sinnot, and Unknown Harvey Police Officers move to dismiss Counts I, III, V, and VI of Plaintiff Karnischa Miller's Complaint, brought on her own behalf and on behalf of her minor children, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The Defendants concurrently move to strike the three exhibits attached to the Complaint as being overly prejudicial. The Complaint contains six claims that stem from a Defendant Officer's shooting of Miller's dog while in pursuit of a suspect: Excessive Force in violation of the Fourth Amendment brought pursuant to 42 U.S.C. § 1983 (Count I); Illegal Seizure of property in violation of the Fourth Amendment brought under § 1983 (Count II); Failure to Intervene in violation of the Fourth Amendment under § 1983 (Count III); and Illinois state law claims of Intentional Infliction of Emotional Distress (Count IV), Indemnification (Count V), and Respondeat Superior (Count VI). The Defendants move to dismiss Count I because the Complaint contains no allegations that any of the officers used force against a person; Count III because a single shot killed Miller's dog such that there was no opportunity for an officer to intervene; Count V because Miller did not plead a Monell claim against the City; and Count VI because there is no respondeat superior liability under § 1983. Miller voluntarily withdraws Count I and seeks leave to re-plead Counts V and VI as Monell claims. Count I is dismissed with prejudice because there are no allegations regarding force against any person. Count VI is dismissed with prejudice because respondeat superior liability cannot attach under § 1983; however, Miller is granted leave to amend her Complaint to include a Monell claim. The motion to dismiss with respect to Counts III and V is denied. Miller's Complaint plausibly states a claim for failure to intervene and her indemnification claim was pled properly. For these and the following reasons, the Defendants' motion to dismiss is granted in part and denied in part. The motion to strike the exhibits to the Complaint is granted.


The Court takes the following well-pleaded allegations from the Complaint and treats them as true for purposes of this motion. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

At all relevant times, Miller and her minor children were residents of Harvey, Illinois and Officers Davres and Sinnot were Harvey police officers. (Dkt. 1 at ¶¶ 5-6). On December 30, 2012, Miller heard gunshots and screams emanating from outside her home. ( Id. at ¶ 10). Miller and her boyfriend, LeShon Wright, went outside, where neighbors alerted them of activity toward the back of Miller's home. ( Id. at ¶ 11). Wright went toward the back of Miller's home, opened the back door, and saw an individual named Paul Manning lying on the ground after having been shot. ( Id. at ¶ 12). Harvey police officers surrounded Manning with their guns drawn while one officer stood on Manning's back. ( Id. at ¶¶ 13-14).

As Miller opened the door to her home, her fourteen-week-old puppy went outside. ( Id. at ¶ 15). Wright called the dog to return to the house and an officer told Wright, "Get your dog." ( Id. at ¶¶ 16-17). As Wright walked from the house toward the dog, an officer unholstered and raised his gun in the direction of the dog and Wright. ( Id. at ¶ 18). Wright stopped as the dog approached an officer and sniffed the officer's ankle. ( Id. at ¶¶ 19-20). The dog did not growl, bark, or act aggressively in any way. ( Id. at ¶ 21). One of the officers on scene then shot the dog. ( Id. at ¶ 22). Despite the fact that the dog was shot and bleeding, the officers would not allow anyone to assist or aid the dog. ( Id. at ¶ 26). The dog eventually bled to death. ( Id. at ¶ 27). The dog was shot at approximately 4:30 PM but officers did not allow anyone near the dog until approximately 11:15 PM. ( Id. at ¶¶ 28-29).


Rule 12 (b)(6) requires dismissal of complaints that fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pled allegations in the complaint and construe all reasonable inferences in favor of the plaintiff. See Killingsworth v. HSBC Bank, 507 F.3d 614, 619 (7th Cir. 2007). To state a claim upon which relief may be granted, 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). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true... state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). In analyzing whether a complaint meets this standard, the "reviewing court [must] draw on its judicial experience and common sense." Id. at 678. When the factual allegations are well-pled, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. See Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Yeftich v. Navistar, 722 F.3d 911, 915 (7th Cir. 2013).


The Defendants' motion to dismiss seeks dismissal of four of Miller's claims: Count I (excessive force in violation of the Fourth Amendment); Count III (failure to intervene in violation of the Fourth Amendment); Count V (indemnification pursuant to Illinois law); and Count VI (respondeat superior pursuant to Illinois law).

A. Excessive Force

Miller voluntarily withdrew her excessive force claim. Count I is therefore dismissed with prejudice based on this withdrawal and because the Complaint contains no allegations that force was used by any of the Defendants against Miller or her minor children.

B. Failure to Intervene

Omissions as well as actions may violate civil rights. Under certain circumstances, "a state actor's failure to intervene renders him or her culpable under § 1983." Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). An officer "who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005) (quoting Yang, 37 F.3d at 285 (7th Cir. 1994)). A "realistic opportunity to intervene" may exist whenever an officer could have "called for a backup, called for help, or at least cautioned" the violating officer to stop. See Yang, 37 F.3d at 285. The two prongs of this analysis almost always implicate questions of fact for the jury: "Whether an officer had sufficient time to intervene or was capable of preventing the harm caused ...

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