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Perez v. City of Chicago

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

August 26, 2016

ANGEL PEREZ,, Plaintiffs
v.
CITY OF CHICAGO,, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr.United States District Judge

         Angel Perez, Jose Martinez, Juanita Berry, Calvin Coffey, and Estephanie Martinez (“Named Plaintiffs”) filed a six-count class action pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2), (3) against six named Chicago Police officers, unnamed officers, and the City of Chicago (“Defendants”). In their second amended complaint, the named plaintiffs allege that they and members of the proposed class have been subject to unconstitutional police practices including at Homan Square, a facility that was not a normal police station, without any record of their arrest being made in the official booking databases and without access to counsel. Before the Court is Defendants' partial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) [145]. In their motion, Defendants argue that the Court should dismiss (1) Plaintiff Juanita Berry's claim for excessive force (Count II), (2) her claim for failure to intervene (Count IV), (3) any corresponding claims for indemnification against the City (Count VI), and (4) the claims asserted by Plaintiffs Estephanie and Jose Martinez on the grounds that the Martinez Plaintiffs' claims are time-barred. For the reasons stated below, the Court grants Defendant's motion [145] and dismisses each of the targeted claims without prejudice.

         I. Background

         The following facts are taken from Plaintiff's second amended complaint and are accepted as true for the purposes of this motion. This case arises from the alleged unlawful detainment, interrogation, and treatment of Plaintiffs Angel Perez, Juanita Berry, Estephanie Martinez, Jose Martinez, and Calvin Coffey at a police warehouse at the intersection of South Homan Street and West Filmore Avenue in Chicago (“Homan Square”). See [106-1], Sec. Am. Compl. (“SAC”) at 4. Plaintiff Perez alleges that on October 19, 2012, he was taken to the nearby Harris Street Police Station, handcuffed to a wall, and questioned about robberies and drug transactions in the Taylor Street area of Chicago. See id. at 5-6. Despite his repeated requests, Plaintiff was not permitted to contact a lawyer. Id. Approximately two hours later, Plaintiff was released; as he was leaving, police officers stated that they would continue to harass him until they got the information that they wanted. Id. at 6.

         The next day, Plaintiff Perez met Defendant Officers Lopez and Zablocki at an Al's Beef restaurant on Taylor Street at Lopez's request. The officers drove to the rear of the parking lot and Perez followed them. Zablocki got out of his car, threatened Perez, slammed his head onto the police vehicle, and handcuffed him. Perez then was taken to Homan Square. See [106-1], SAC at 7. Plaintiff Perez alleges that the Chicago Police Department uses Homan Square to hold citizens “incommunicado”-that is, without the formal processing procedures or acknowledgment of the detention-so that police may interrogate citizens and coerce them to cooperate with investigations. See id. at 4.

         According to Perez, at Homan Square he was handcuffed to a bar and placed in leg shackles. Officers then allegedly spent the next several hours torturing and threatening Perez to coerce him to contact an individual named Dwayne, apparently a local drug dealer, to set up a drug purchase. [132], SAC at 7-8. After Perez refused, Defendants Zablocki and Lopez allegedly sodomized Perez with what Perez believes to have been one of their service revolvers. Id. at 9. They threatened to continue unless Perez cooperated with them. Perez finally agreed to set up a meeting with Dwayne, and the officers provided him with money and a recording device. Id. at 9-10. After completing the purchase and giving the drugs to the officers, Perez was released.

         Plaintiff Perez filed his original complaint [1] against the City of Chicago and Officer Lopez, the only officer whose name he knew at the time, on July 20, 2013. Plaintiff brought claims under 42 U.S.C. § 1983 for excessive force and failure to intervene, a claim for intentional infliction of emotional distress (“IIED”), a Monell claim against the City for unconstitutional policies and practices that allowed the alleged excessive force and abuse, and respondeat superior and indemnification claims. See [1], Compl. Magistrate Judge Rowland bifurcated the Monell claim and stayed discovery on it. See [54]. Plaintiff Perez, then proceeding pro se, filed an amended complaint that added five Chicago police officers as defendants, as well as a new claim for tampering with a witness under 18 U.S.C. § 1512. See [74]. Defendant filed a motion to dismiss the witness tampering claim [76], which was stricken as moot, as Plaintiff Perez omitted that claim from his second amended complaint. See [124].

         On September 2, 2015, the Court granted Plaintiff Perez's motion for leave to file a second amended complaint. See [124]. In their second amended complaint, the named plaintiffs bring class claims. The plaintiffs allege that they were held at Homan Square, where they were interrogated and mistreated by Chicago police offices. Coffey and Berry were held in February 2015, Jose Martinez in September 2011, and Estephanie Martinez in August 2006. See [106-1], SAC at 11-14. Count I is styled as a § 1983 “secret arrests” class claim against the City of Chicago for alleged policies and practices-including secretly detaining citizens at places like Homan Square, interrogating citizens without advising them of their Miranda rights, attempting to coerce false confessions, denying contact with attorneys or family, and refusing access to food, water, and restrooms-that violate the First and Fourth Amendments. Count I includes two proposed classes: (1) all persons detained by Chicago police where no record of the detainment was created within a reasonable amount of time (Plaintiff suggests one hour from the initial detainment), and (2) all persons who may in the future be subject to the alleged secret arrests.

         Count II is brought by plaintiffs Estephanie Martinez and Coffey against the City of Chicago for deprivations of adequate accommodations in violation of the Fourth Amendment. Martinez and Coffey allege that the City has policies and practices of detaining citizens overnight without providing them minimally adequate accommodations for sleeping. Count II also includes two classes: (1) all persons who were detained without public record of the detainment between the hours of 10 p.m. and 6 a.m., and (2) all persons who may in the future be subject to unconstitutional overnight accommodations. Plaintiffs also seek to bring individual § 1983 claims against the named and unknown Defendant officers for excessive force (Count III) and failure to intervene in excessive force (Count IV), as well as state law claims (Count V) and an indemnification claim against the City pursuant to 745 ILCS 10/9-102 (Count VI).

         On December 18, 2015, Defendants filed a motion to dismiss Plaintiffs' Second Amended Complaint under Rule 12(b)(6). See [145]. In their motion [145], Defendants ask the Court to dismiss Plaintiff Juanita Berry's claim for excessive force (Count II), her claim for failure to intervene (Count IV), and any corresponding claims for indemnification against the City (Count VI) because Plaintiff Berry has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants also ask the Court to dismiss the claims brought by Plaintiffs Estephanie and Jose Martinez on the grounds that their claims are time-barred.

         II. Legal Standard

         To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

         III. Analysis

         In their motion [145], Defendants ask the Court to dismiss Plaintiff Juanita Berry's claim for excessive force (Count III), her claim for failure to intervene (Count IV), and any corresponding claims for indemnification against the City (Count VI) because Plaintiff Berry has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants also ask the Court to dismiss the ...


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