United States District Court, N.D. Illinois, Eastern Division
For Omar Ali, Plaintiff: Richard J. Dvorak, LEAD ATTORNEY, Law Offices of Richard Dvorak, Oak Brook Terrace, IL; Iveliz Maria Orellano, Dvorak Law Offices, LLC, Chicago, IL; Theresa H. Kleinhaus, N/a, Chicago, IL.
For Village of Tinley Park, a municipal corporation, Kevyn Holdefer, Firefighter, John Duffy, Firefighter, Steve Griffin, Firefighter, Defendants: Michael Russell Hartigan, LEAD ATTORNEY, Patrick Halpin O'Connor, Hartigan & O'Connor P.C., Chicago, IL.
MEMORANDUM OPINION AND ORDER
Milton I. Shadur, Senior United States District Judge.
Omar Ali (" Ali" ) has brought this action against the Village of Tinley Park (" Village" ) and its firefighters Kevyn Holdefer (" Holdefer" ), John Duffy (" Duffy" ) and Steve Griffin (" Griffin" ), charging the firefighters with violations of 42 U.S.C. § § 1983 and 1981 and seeking indemnification from Village for any recovery on those claims. Ali also brings a number of state law claims under the auspices of 28 U.S.C. § 1367 (" Section 1367" ). All defendants move to dismiss the federal claims pursuant to Fed.R.Civ.P. (" Rule" ) 12(b)(6) and the state law claims under Rule 12(b)(1). For the reasons stated in this opinion, this Court grants the motion to dismiss the Section 1981 claims with prejudice, but it denies the remainder of the motion.
Standard of Review
Under Rule 12(b)(6) a party may move for dismissal of a complaint for the " failure to state a claim upon which relief can be granted." Familiar Rule 12(b)(6) principles require the district court to accept as true all of plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff (Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th
Cir. 2013)), while " legal conclusions or conclusory allegations that merely recite a claim's elements" are not entitled to such a presumption of truth (Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012)). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction are evaluated under the same standard (Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012)).
In recent years the Supreme Court has made an important change in the evaluation of Rule 12(b)(6) motions via what this Court regularly refers to as " the Twombly-Iqbal canon" (a usage drawn from (1) Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as more finely tuned in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), and (2) Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). That canon has introduced a notion of " plausibility" into the analysis, and in that respect our Court of Appeals has " interpreted Twombly and Iqbal to require the plaintiff to provid[e] some specific facts to support the legal claims asserted in the complaint" (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (internal quotation marks omitted but brackets in original)). As McCauley, id. went on to reconfirm, " the plaintiff must give enough details about the subject-matter of the case to present a story that holds together."
Statement of Facts
Ali is African American and of Muslim faith (FAC ¶ 4). One afternoon in May he was walking home along the sidewalk directly across the street from the Tinley Park Fire Department wearing a " clearly visible turbin [sic] on his head" (id. ¶ 6). At that time firefighters Holdefer, Duffy and Griffin were " on duty" and " operating the equipment of the Fire Department as part of their routine duties" (id. ¶ 8). " Suddenly" Holdefer sprayed Ali with a " powerful" fire hose (id. ¶ 9), an act that Ali claims was purposeful and on account of his race or Muslim faith or both (id. ¶ 11). At the same time the other two firefighters -- Duffy and Griffin -- " observed Firefighter Holdefer's actions, had a reasonable opportunity to intervene, and did nothing to stop him" (id. ¶ 10). Based on that incident, Ali asserts (1) several claimed violations of state law (which this opinion does not enumerate), (2) a claimed denial of equal protection in violation of Section 1981 and (3) several theories advanced under Section 1983: the denial of equal protection, the use of excessive force and the failure to intervene.
Ali's Section 1981 Claims
">Campbell v. Forest Pres. Dist. of Cook County, Ill.,
752 F.3d 665, 671 (7th Cir. 2014) has recently held that Section 1981 does not create a private right of action against state actors -- instead Section 1983 provides the exclusive remedy for such claims. Indeed, Ali's Mem. 1 n. 1 has expressly abandoned reliance on that ...