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Bamberg v. City of Evanston

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

August 13, 2014

JOHN A. BAMBERG, JR., Plaintiff,
CITY OF EVANSTON, et al., Defendants.


AMY J. ST. EVE, District Judge.

The Court denies Defendants' motion to dismiss [24]. Defendants shall answer by 9/3/14. Parties are to meet and confer and file a joint discovery plan by 9/4/14. Status hearing set for 10/9/14 is stricken and reset to 9/8/14 at 8:30 a.m.


On May 6, 2014, Plaintiff John A. Bamberg filed the present four-count Amended Complaint against Defendants City of Evanston, Evanston police officers Wright and Nieman, and unknown Evanston police officers pursuant to the Court's original and supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1367(a). Before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court denies Defendants' motion.


"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570).

"In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draw "reasonable inferences in favor of the plaintiffs." Teamsters Local Union No. 705 v. Burlington No. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014). "[A] plaintiff is not required to plead facts in the complaint to anticipate and defeat affirmative defenses, " but "when a plaintiff's complaint nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate." Independent Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir. 2012).


On September 30, 2010, at approximately 10:00 p.m., someone shot and killed Marcus T. Davis while he was parked in his white Lincoln Town Car in Evanston, Illinois. (R. 19, Am. Compl. ¶ 5.) Davis' fiance, Tawanda Smith, was seated in the passenger seat of the car during the incident. ( Id. ) At around 10:05 p.m. on that same day, an Evanston police officer, who is not a named Defendant in this lawsuit, arrived at the scene and observed Smith sitting over the top of Davis. ( Id. ¶ 6.) Another Evanston police officer at the scene observed Smith screaming for help. ( Id. ) According to Bamberg, these officers' reports do not indicate that Smith stated the name of the shooter. ( Id. )

Bamberg further alleges on information and belief the officers involved in the investigation of Davis' murder knew of a feud between two local Evanston families, namely, the Bamberg and Davis families. ( Id. ¶¶ 7, 8.) As such, Bamberg maintains that the investigating officers focused their investigation on these two families, including Plaintiff. ( Id. ¶¶ 8, 9.)

On October 1, 2010, at approximately 12:30 a.m., at Evanston Hospital, Defendant Officers Nieman and Wright showed Smith a photo line-up. ( Id. ¶ 11.) In the first photo line-up, Smith did not identify Bamberg as the shooter, but instead identified a different person. ( Id. ¶ 12.) Defendant Officers did not have Smith circle or initial the results of the first line-up nor did they conduct any follow-up on the individual Smith had identified. ( Id. ) Bamberg further alleges that after Defendant Officers discussed and coached Smith, she identified Bamberg from a second photo line-up. ( Id. ¶ 13.) Bamberg alleges that the filler photographs from this second photo line-up did not contain any of the individuals from the first line-up and that the Defendant Officers showed Bamberg's photo twice. ( Id. ¶ 14.) After the second photo line-up during which Smith identified Bamberg, she told friends that she did not know who shot Davis. ( Id. ¶ 15.) At the grand jury hearing, Smith testified that when the police arrived on the scene she was screaming and yelling "It was Bird. Bird did it." ( Id. ¶ 16.) Bamberg further alleges that Defendant Officers never followed up on this or any other leads and failed to investigate other possible suspects, and, on information and belief, only focused on Bamberg. ( Id. ¶ 17.)

Defendant Officers Wright and Nieman arrested Bamberg on October 7, 2010. ( Id. ¶ 25.) On October 10, 2010, he was charged with murder and attempted murder. ( Id. ¶ 26.) Bamberg alleges that despite contradicting testimony, conflicting facts and statements, and Smith's misidentification of the lineup, Defendants continued to subject him to judicial proceedings without probable cause. ( Id. ¶ 18.) Bamberg alleges that he was detained at the Cook County Department of Corrections for twenty-six months resulting from his false arrest based on manipulated identification evidence. ( Id. ¶¶ 28, 29.) On November 30, 2012, a Circuit Court of Cook County judge acquitted Plaintiff after a three-day bench trial. ( Id. ¶ 31.)

In his Amended Complaint, Plaintiff alleges the following claims: (1) a Fourteenth Amendment due process claim against Defendant Officers (Count I); (2) a claim pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against Evanston (Count II); (3) an indemnification claim against Evanston ...

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