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Brown v. Zydek

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

August 16, 2016

DARNELL BROWN, Plaintiff,
v.
BRIAN ZYDEK, BRIAN BURG, ANDRES ZEPEDA, GARRY MCCARTHY, JODY P. WEIS, and the CITY OF CHICAGO, Defendants.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO United States District Judge.

         Before the Court are defendants’ motions to dismiss the amended complaint, which are granted for the reasons explained below.

         BACKGROUND

         Plaintiff, Darnell Brown, brought this civil rights suit against the City of Chicago and former Chicago police superintendents Garry McCarthy and Jody Weis (the “City Defendants”), as well as Chicago police officers Bryan Zydek, Brian Burg, and Andres Zepeda (the “Officer Defendants” or the “Officers”). Plaintiff alleges the following facts, which the Court takes as true for purposes of the instant motions. On May 17, 2011, around 12:30 a.m., plaintiff and a friend, Ebony Mason, stopped at a gas station/convenience store at 6657 South Halsted Street in Chicago. Mason was driving her car, and plaintiff was in the front passenger seat. Plaintiff entered the convenience store to make a purchase and then left. While plaintiff was inside, a security guard approached him but did not accuse him of any wrongdoing. A few minutes later, plaintiff went back into the store to get change for a ten-dollar bill. On his way out, plaintiff passed a second security guard, who, like the first guard, did not accuse plaintiff of wrongdoing. One of the security guards, however, then called police and reported that plaintiff had a gun.

         Plaintiff returned to the car, and Mason drove to plaintiff’s house. Once there, plaintiff discovered that some important papers he had had with him were missing, so he and Mason got back in the car to retrace their route. As they were driving back to the gas station, two Chicago police vehicles began following them. Plaintiff became afraid, and he removed the pistol he was carrying in his waistband and put it in his lap. Unbeknown to him, he inadvertently disengaged the safety.

         One of the police vehicles that was following Mason’s car was a Chevrolet Tahoe SUV driven by Officer Zepeda. Zepeda drove the SUV alongside the car and then rammed it so hard that the pistol in plaintiff’s lap discharged, wounding him in the right thigh. (Plaintiff’s pistol did not discharge at any other time during the incident.)

         As the vehicles were slowing down, plaintiff jumped from the car and ran away while concealing his pistol in front of him. As he ran, Officers Zydek and Burg fired as many as twenty shots at plaintiff. Seven shots hit plaintiff in the back and lower extremities, but plaintiff kept running. One more shot hit him behind his right knee and caused him to fall, rendering him permanently disabled. As plaintiff fell forward, his pistol fell to the ground, and Zepeda kicked it out of reach. Plaintiff spread his arms out to surrender and was handcuffed by Zydek or Burg.

         Plaintiff was subsequently charged with two counts of attempted murder, two counts of aggravated assault, and nine counts of aggravated unlawful use of a weapon. On August 18, 2013, plaintiff was acquitted of the attempted murder and aggravated assault charges. He was convicted, though, of two counts of aggravated unlawful use of a weapon under 720 ILCS 5/24-1.6, a statute that the Seventh Circuit had previously declared unconstitutional.

         Plaintiff alleges that as a result of the knee injury, he lost function and suffers from constant pain. He has suffered “continuous nightmares, and is compelled to talk about [the incident] at every opportunity.” (ECF No. 6, First Am. Compl. ¶ 22.) The amended complaint contains the following numbered counts: § 1983 claims against Zydek (Count I), Burg (Count II), and Zepeda (Count III); false imprisonment against Zydek or Burg, based on the handcuffing (Count IV); assault and battery against Zepeda based on the ramming of the vehicle (Count V); assault and battery against Zydek and Burg based on the shooting (Count VI); malicious prosecution against Zydek and Burg (Counts VII, VIII, and IX); § 1983 and respondeat superior claims against McCarthy and Weis “‘qua’[1] the City of Chicago Police Department” (Counts X-XIII); § 1983 and respondeat superior claims against the City (Counts XIV and XV); and a claim for civil conspiracy against the Officer Defendants (Count XVI). The City Defendants and the Officer Defendants have brought separate motions to dismiss the amended complaint.

         DISCUSSION

         A. Legal Standards

         When evaluating the sufficiency of a complaint, the Court construes it in the light most favorable to the plaintiff, accepts as true all well-pleaded facts therein, and draws all reasonable inferences in plaintiff’s favor. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations” but must contain “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         B. The Officers’ Motion

         1.Section ...


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