United States District Court, N.D. Illinois, Eastern Division
SAMANTHA MAGLAYA, individually and on behalf of S.R., her minor daughter, Plaintiffs,
MICHAEL KUMIGA, MICHAEL McGLADE, & THE CITY OF CHICAGO, Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court are partial motions to dismiss by Defendants City of Chicago , Officer Michael Kumiga , and Officer Michael McGlade . For the reasons set forth below, the City of Chicago's motion  is granted in part and denied in part, Officer Kumiga's motion  is granted in part and denied in part, and Officer McGlade's motion  is denied in full. Plaintiffs may proceed against Defendants on the following counts:
Against City of Chicago: Counts I-IV, VI-X, and XIII-XV (vicarious liability only); XVIII (in part, as explained herein); XIX; and XX.
Against Officer Kumiga: Counts I, II (in part, as explained herein), III-IV, and VII-XV.
Against Officer McGlade: Counts IV, VI, VIII-IX.
This suit arises from the May 17, 2013 shooting of Max: a 19-week-old, 45-pound dog belonging to Plaintiff Samantha Maglaya. At the time, Ms. Maglaya - who is Hispanic and a recipient of Section 8 Housing assistance - was living with her family in Chicago's Norwood Park neighborhood. Her neighbors included Defendant Michael McGlade, a Chicago Police Officer, and former Defendant Don Kumiga ("Mr. Kumiga"), a retired Chicago Police Officer. Mr. Kumiga's son, Defendant Michael Kumiga ("Officer Kumiga"), also a Chicago Police Officer, either lived with his father at the time or frequently visited him.
Ms. Maglaya alleges that Defendants, discontent with sharing a street with someone of her ethnicity and socioeconomic status, wanted her family out of the neighborhood. That animus allegedly extended to Ms. Maglaya's dog, who, on occasion, ventured outdoors unleashed. Several days before May 17, 2013, Officer Kumiga told Ms. Maglaya's husband, who is also Hispanic, that he would shoot Max if he saw him off his leash again.
On the day in question, Ms. Maglaya had just returned home after picking her children up from school. Ms. Maglaya's five-year-old daughter, S.R., let Max out into their backyard to use the bathroom. Max proceeded to run through an open gate into the front yard; S.R. gave chase. It was then that Officer Kumiga, standing approximately three feet away from Max (and five feet away from S.R.), shot Max eight times. Max died soon after. Plaintiffs contend, and Officer Kumiga does not contest, that he was acting "within the scope of his employment" at the time of the shooting. Officer Kumiga would later claim that he shot Max because the dog was "viciously chasing" his son down the street; Plaintiffs deny that any such child was near their home at the time.
Following the shooting, several unidentified members of the Chicago Police Department arrived on the scene. They ticketed Ms. Maglaya's husband for having Max off-leash and not having dog tags; this ticketing was apparently incorrect as Ms. Maglaya, and not her husband, was Max's owner. The officers proceeded to clean up the scene of the shooting. Ms. Maglaya contends that they did so without following proper police protocol; the officers allegedly did nothing to record the scene and did not file a report concerning Officer Kumiga's discharge of his weapon. When Ms. Maglaya later went to the police station to file a complaint, officers refused to take her statement.
As the other officers were working to clean the scene, Officer McGlade, who was in uniform, told Ms. Maglaya's neighbor - who was her landlord at the time - that he, Officer Kumiga, and Mr. Kumiga had agreed that Ms. Maglaya and her family should not have the dog and should not be in the neighborhood because of their race and Section 8 Housing status. He further claimed that they had all agreed that they would shoot any unleashed dog they saw in the neighborhood. During the conversation, Officer McGlade allegedly referred to Ms. Maglaya as a "spic" and called Max a "nigger dog."
Ms. Maglaya later brought suit individually and on behalf of S.R. against Officer Kumiga, Officer McGlade, Mr. Kumiga, and the City of Chicago. Plaintiffs alleged twenty wide-ranging counts, invoking both federal and Illinois state law. Specifically, against the three individual defendants, Plaintiffs brought a claim for conspiracy to interfere with their civil rights under 42 U.S.C. § 1985(3) (Count III) and two state law claims for damages resulting from hate crimes against Ms. Maglaya and S.R. (Count IX and Count X). Against Officer Kumiga individually, Plaintiffs brought a claim under 42 U.S.C. § 1983 for illegal seizure (Count I), a claim under 42 U.S.C. § 1983 for deprivation of substantive due process (Count II), a claim under 42 U.S.C. § 1986 for failure to prevent conspiracy (Count IV), a state law claim for aggravated cruelty to animals (Claim VII), a claim for intentional infliction of emotional distress upon S.R. (Count X), a claim for negligent infliction of emotional distress upon S.R. (Count XI), a claim for negligent infliction of emotional distress upon Ms. Maglaya (Count XII), a claim for willful and wanton misconduct (Count XIII), a claim for gross negligence (Count XIV), a claim for conversion of personal property (Count XV), and a claim for trespass to personal property (Count XVI). Plaintiffs also brought 42 U.S.C. § 1986 failure to prevent conspiracy claims against Mr. Kumiga and Officer McGlade individually (Counts V and VI, respectively). Against the City of Chicago, Plaintiffs brought two Monell claims (Counts XVII and XVIII), an indemnification claim (Count XIX), and a respondeat superior claim (Count XX). Plaintiffs also seek to hold the City of Chicago vicariously liable for the conduct alleged in Counts I-IV, VI-X, and XIII-XVI.
Mr. Kumiga has since been dismissed as a Defendant pursuant to settlement. The remaining three Defendants have filed partial motions to dismiss. The City has moved to dismiss the two Monell claims (Counts XVII and XVIII). Officer Kumiga has moved to dismiss the substantive due process claim (Count II), the four state-law tort claims (Counts XI-XIV), and either the conversion claim or the trespass to personal property claim (Counts XV and XVI, respectively). Officer McGlade has moved to dismiss all four claims against him, including the § 1985(3) conspiracy claim (Count III), the § 1986 failure to prevent conspiracy claim (Count VI), and the two hate crime claims (Counts VIII and IX).
II. Legal Standard
In reviewing the sufficiency of a complaint, a district court must accept all well-plead facts as true and draw all permissible inferences in favor of the plaintiff. Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012). The Federal Rules of Civil Procedure require only that a complaint provide the defendant with "fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Supreme Court has described this notice-pleading standard as requiring a complaint to "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 (2009) (quoting Twombly, 550 U.S. at 570). While factual allegations must be accepted as true, legal conclusions may not be considered. Id.
A. City of Chicago's Motion to Dismiss Monell Claims
In Counts XVII and XVIII, Plaintiffs seek to hold the City of Chicago - a municipality - liable under 42 U.S.C. § 1983 for violating their Fourteenth Amendment equal protection rights and their right to be free from illegal seizures under the Fourth Amendment. Defendant City of Chicago seeks to dismiss both claims.
Under 42 U.S.C. § 1983, a person may sue anyone who, while acting under color of law, causes him to be deprived of any of his constitutional rights. 42 U.S.C. § 1983; Connick v. Thompson, 131 S.Ct. 1350, 1358-59 (2011). A municipality can be held liable under § 1983 only "when execution of [its] policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly said to represent official policy, " causes the constitutional deprivation. Monell v. Dep't of Soc. Servs. of City of New York, 536 U.S. 658, 694 (1978). A municipality cannot be held liable solely on a respondeat superior basis. Id. at 691. The Seventh Circuit recognizes three paths to municipal liability: "(1) through an express policy that, when enforced, causes a constitutional deprivation; (2) through a wide-spread practice' that although not authorized by written law and express policy, is so permanent and well-settled as to constitute a custom or usage' with the force of law; or (3) through an allegation that the constitutional injury was caused by a person with final decision policymaking authority.'" Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (quoting McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995)). Here, Plaintiffs rely exclusively on the widespread-custom prong in making their two Monell claims.
Consistent with the post- Iqbal pleading standard,  the Seventh Circuit has held that to state a Monell claim a plaintiff must plead "factual content that allows the court to draw the reasonable inference" that the municipality maintained a policy or custom that caused the alleged constitutional deprivation. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 678). Mere "legal conclusions or elements of the cause of action" must be disregarded. Id. at 617. Thus, "boilerplate" statements that repeat the elements of a Monell claim without any further factual content have been dismissed for failure to state a claim. See, e.g., Falk v. Perez, 973 F.Supp.2d 850, 864 (N.D. Ill. 2013) ("[B]y alleging widespread practices, ' customs, ' and unofficial policies, ' Plaintiff merely states boilerplate legal conclusions that are the elements of her Monell claim."); Annan v. Vill. of Romeoville, 2013 WL 673484, at *6 (N.D. Ill. Feb. 25, 2013) (holding that an allegation that defendant "maintains a policy by which officers use excessive force to arrest individuals with no probable cause or reasonable suspicion warranting such" was insufficient to state a Monell claim); Sheppard v. Vill. of Glendale Heights, 2011 WL 6102012, at *4 (N.D. Ill.Dec. 5, 2011) (holding that an allegation that plaintiff was discriminated against on the basis of her sex and race "pursuant to wide-spread practice" of the defendant village was insufficient to state a Monell claim).
In order to prevail on a Monell claim, a plaintiff also must be able to show that the municipality's policy was the "moving force" behind the alleged injury; that is, a plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997); see also City of Canton v. Harris, 489 U.S. 378, 385 (1989); Teesdale v. City of Chi., 690 F.3d 829, 833 (7th Cir. 2012). The Court reviews each Monell claim under this standard.
1. Count XVII: Equal Protection Monell Claim
Under a heading titled "Equal Protection Monell Claim" (Count XVII), Plaintiffs first allege that the City maintains a widespread practice of concealing officer misconduct, as evidenced by the City's failure to investigate allegations of misconduct, its failure to maintain accurate and complete records of alleged officer misconduct, its failure to accept complaints from citizens against police officers, its failure to promptly record witness statements or preserve evidence, its failure to discipline officers, its fabrication of exculpatory evidence, its destruction of evidence, etc. Within this same Monell claim, Plaintiffs assert several additional widespread practices that allegedly caused the deprivation of their Fourteenth Amendment rights: a practice of failing to maintain accurate and complete records of complaints and investigations; a practice of hiring and firing unqualified officers and failing to properly train, monitor, or supervise its police officers (that's really two practices); and a practice of adhering to a "code of silence, " whereby police officers refuse to report instances of misconduct by other officers. Plaintiffs allege that these practices, individually and collectively, create a culture amongst Chicago police officers whereby they believe that they can engage in misconduct without fear of consequence.
To state a Monell claim against the City for a violation of Plaintiffs' equal protection rights, Plaintiffs must "plead factual content that allows the court to draw the reasonable inference' that the City maintained a policy, custom, or practice of intentional discrimination against a class of persons to which [Plaintiffs'] belong." McCauley, 671 F.3d 611, 616 (quoting Iqbal, 129 S.Ct. at 1949). In Count XVII, Plaintiffs make no mention of any municipal action targeted against any specific class of persons. In their response brief, Plaintiffs attempt to fill that gap by arguing that the City's practices at issue here are "aimed at certain racial and ethnic groups." [46, at 4.] More specifically, Plaintiffs claim that "Officer Kumiga and Officer McGlade acted according to racial prejudice and animus." [ Id. ] There are several problems here. First, these equal protection allegations are not part of Plaintiffs' equal protection claim ( i.e., Plaintiffs allege that the City fails to address police misconduct generally, not police misconduct as it relates to any particular class). Second, even if these facts were included in Plaintiffs' equal protection claim, they do not support a widespread-practice allegation; to the contrary, these facts align with the main thrust of Plaintiffs' complaint, which is that the moving force behind Plaintiffs' equal protection violation was the racial prejudice and animus of the Defendant officers.
Importantly, "[t]he required level of factual specificity [for pleading a Monell claim] rises with the complexity of the claim." McCauley, 671 F.3d at 616-17; Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) ("A more complex case * * * will require more detail, both to give the opposing party notice of what the case is all about and to show how, in the plaintiff's mind at least, the dots should be connected."). Here, Plaintiffs' Monell claim is far along on the complexity scale, composed of at least five separate widespread practices alleging wholesale corruption of the entire Chicago police force. But Plaintiffs fail to provide any factual support linking those practices to the wrongdoing here. The bulk of the "facts" are just conclusory statements - catch phrases exhumed from other successful Monell cases, strung together in a kitchen-sink pleading approach - that have become all too common in Monell claims raised in non- pro-se § 1983 cases. And the only two facts that actually relate to this incident ( i.e., that the officers gave Plaintiffs a citation as a means of intimidating them and that the officers refused to take Ms. Maglaya's statement after the incident) describe Plaintiffs' interactions with the Defendant officers after the alleged constitutional harms occurred, and thus are poor candidates establishing that the City's practices were the "moving force" behind Plaintiffs' alleged constitutional harm.
Plaintiffs' allegations qualify as boilerplate, and lack the necessary factual underpinning to justify further investigation. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985) (holding that allowing a plaintiff to proceed to discovery with a boilerplate Monell claim "would be tantamount to allowing suit to be filed on a respondeat superior basis" such that "[p]laintiffs could file claims whenever a police officer abused them, add Monell boilerplate allegations, and proceed to discovery in the hope of turning up some evidence to support the claims' made"). Plaintiffs' allegations also lack any causal link establishing that any of the five alleged widespread practices were the moving force behind their alleged constitutional harms - an allegation that is belied by Plaintiffs' complaint and their response brief, both of which identify ...