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Bernal v. Johnson

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

September 25, 2014

JUDY BERNAL, Individually and on Behalf of Her Minor child, YVONN BERNAL, CAROLINA GUTIERREZ, and KAREN GUTIERREZ, Plaintiffs,


JAMES B. ZAGEL, District Judge.

Plaintiffs Judy Bernal, Yvonn Bernal, Carolina Gutierrez, and Karen Gutierrez ("Plaintiffs") filed this action against Defendant Correctional Officer Alex Johnson ("Defendant") pursuant to 42 U.S.C. § 1983. Defendant moves to dismiss Plaintiffs' claim pursuant to Fed.R.Civ.P. 12 (b)(6) for failure to state a claim on which relief can be granted. For the reasons explained below, Defendant's motion is denied.


On September 3, 2012, Plaintiffs, all residents of Cook County, Illinois, were visiting Samuel Quezada at Stateville Correctional Center, a maximum-security prison located in Crest Hill, Illinois. Plaintiffs allege that they were compliant and cooperative with all orders given by Stateville officers and employees during the entirety of their visit. Plaintiffs additionally allege that at some point during the visit, and without provocation, Defendant, a correctional officer employed at Stateville Correctional Center at all relevant times, sprayed them with pepper spray. After the pepper spray was deployed, Officer Roscoe, Major Tory, and Lieutenant Hall came to the aid of Plaintiffs. When Plaintiff Judy Bernal asked Major Tory for Defendant's name, Tory responded that he could not provide her with it. The deployment of pepper spray caused Plaintiffs to suffer injuries including eye irritation, rashes on various parts of the body, trouble breathing, nose irritation, and excessive mucus.

Plaintiffs brought this action under 42 U.S.C. § 1983 against Defendant in his individual capacity, alleging the use of pepper spray amounted to excessive force, and therefore violated their Fourth Amendment right to be free from unreasonable seizures.


A motion to dismiss under Fed.R.Civ.P. 12(b)(6) does not test the merits of a claim; rather it tests the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, "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, 173 L.Ed.2d 868 (2009). "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." Id.


"[Section] 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotations omitted). Accordingly, to state a claim under 42 U.S.C. § 1983, Plaintiffs' Complaint must allege facts that, taken as true, show that "(1) [Plaintiffs were] deprived of a right secured by the Constitution or laws of the United States, and (2) the deprivation was visited upon [them] by a person or persons acting under color of state law." Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007). Plaintiffs bring a single claim against Defendant Correctional officer Alex Johnson under 42 U.S.C. § 1983 alleging that Defendant's use of pepper spray against them constituted a violation of their Fourth Amendment rights.

1. Acting Under the Color of State Law

In order to state a § 1983 claim, Plaintiffs allege that they were deprived of a federally guaranteed right by a governmental official acting under the color of state law. Wilson v. Price, 624 F.3d 389, 392 (7th Cir. 2010). "Action is taken under color of state law when it involves a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001) (internal quotations omitted). This may be done through "employment or some other agency relationship." Case v. Milewski, 327 F.3d 564, 567 (7th Cir. 2003). "[A]cts by a state officer are not made under the color of state law unless they are related in some way to the performance of the duties of the state office." Honaker, 256 F.3d at 485. Plaintiffs allege that, at all times surrounding the incident, Defendant was a duly appointed correctional officer employed by Stateville Correctional Center. Plaintiffs allege that when Defendant deployed and released pepper spray directly at them, he was on duty and acting on behalf of Stateville Correctional Center. These facts are sufficient to give rise to the inference that Defendant was acting under the color of state law.

2. Excessive Force

Plaintiffs' claim against law enforcement for the alleged use of excessive force during an "arrest, investigatory stop, or other seizure' of a free citizen should be analyzed under the Fourth Amendment and its reasonableness' standard....'" Acevedo v Canterbury, 457 F.3d 721, 724 (7th Cir. 2006) (quoting Graham, 490 U.S. at 395, 109 S.Ct. 1865). Specifically, to state a claim for excessive force, Plaintiffs must allege both that (1) they were "seized" within the ...

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