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Karney v. City of Naperville

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

October 18, 2016

PATRICK KARNEY, Plaintiff,
v.
CITY OF NAPERVILLE; T.J. BOOGERD; MATT FLETCHER; and JOHN DOE OFFICER #3, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE.

         Plaintiff Patrick Karney fell asleep in his car in the parking lot of a McDonald's restaurant in the City of Naperville sometime before midnight on May 25, 2013. He alleges that his constitutional rights were violated in connection with his arrest in the early morning hours of May 26, 2013, after he was awakened and questioned by Naperville police officers T.J. Boogerd and Matt Fletcher. Karney filed the Original Complaint, R. 1, on May 26, 2015, and the First Amended Complaint, R. 10-1, on August 6, 2015. By memorandum opinion and order dated October 22, 2015, the Court substituted the City of Naperville as the defendant in place of the Naperville Police Department, and then granted in part and denied in part with leave to replead the “Rule 12(b)(6) Motion to Dismiss, ” R. 13, filed by the City on September 4, 2015. See R. 23 (Karney v. City of Naperville, 2015 WL 6407759 (N.D. Ill. Oct. 22, 2015)) (the “October 22, 2015 Order”). Plaintiff filed the Second Amended Complaint on November 20, 2015. R. 46. On December 4, 2015, the City filed a “Rule 12(b)(6) Motion to Dismiss and Rule 12(f) Motion to Strike.” R. 29. On December 18, 2015, Officer Boogerd filed a “Rule 12(b)(5) and 12(b)(6) Motion to Dismiss, ” R. 32, and, on December 21, 2015, Officer Fletcher filed an “Amended Rule 12(b)(6) Motion to Dismiss, ” R. 33. By docket entry dated September 30, 2016, the Court denied Defendants' motions. R. 47. By docket entry dated the same day as this memorandum opinion and order, the Court has vacated the September 30 docket entry insofar as it denied Officer Boogerd's motion to dismiss Count Four of the Second Amended Complaint and in its place has granted dismissal as to Count Four instead. The Court now sets forth in this memorandum opinion and order the reasons for the September 30 order and the order entered today that partially vacates the September 30 order.

         BACKGROUND

         The facts as alleged in the Second Amended Complaint will not be repeated here as they are nearly identical to the facts alleged in the First Amended Complaint. Those facts are set forth in the Court's October 22, 2015 Order. The only exception are two additional factual allegations in support of Plaintiff's Monell claim against the City, which the Court will discuss when addressing the City's motion to dismiss.

         DISCUSSION

         A. Officer Boogerd's Motion to Dismiss

         Officer Boogerd raises a number of issues in his motion to dismiss. The Court will address each of these in turn.

         1.Service of Process

         Officer Boogerd first argues that Plaintiff's claims against him should be dismissed pursuant to Fed.R.Civ.P. 12(b)(5) for failure to serve process within 120 days after the complaint was filed. See Fed. R. Civ. P. 4(m).[1] Plaintiff filed this suit on May 26, 2015. Therefore, Officer Boogerd argues, Plaintiff should have served him on or before September 23, 2015, which he failed to do. Boogerd contends that Plaintiff cannot show good cause for his failure to effect timely service on him, and that Plaintiff's claims against him therefore should be dismissed.

         The Court rejects Officer Boogerd's service of process argument for two reasons. First, Officer Boogerd uses the date on which this action was filed, May 26, 2015, for the date on which the 120-day period was triggered. But Officer Boogerd was not named as a defendant in the Original Complaint. Instead, Officer Boogerd was first named as a defendant on August 6, 2015, when Plaintiff filed the First Amended Complaint.[2] Pursuant to Rule 4(m), Plaintiff had 120 days from August 6, 2015 to serve Officer Boogerd, which means he had until December 4, 2015. Plaintiff served Officer Boogerd with a waiver of service of summons, Fed.R.Civ.P. 4(d), on October 23, 2015. See R. 32-1 at 3. Boogerd's attorney executed the waiver of service on November 3, 2015, and Plaintiff filed it with the Court on November 4, 2015. See R. 25. Plaintiff thus obtained service of process over Officer Boogerd on November 4, 2015. See Fed. R. Civ. P. 4(d)(4) (“When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.”). As a result, Plaintiff obtained service over Officer Boogerd prior to the December 4, 2015 deadline.[3]

         Second, even if the time for service expired before Plaintiff served Officer Boogerd, the Court still would reject Boogerd's service of process argument. The pre-amendment version of Rule 4(m) states:

If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Boogerd argues that Plaintiff cannot establish “good cause” for an extension under Rule 4(m), and contends that the Seventh Circuit has “counseled against retroactive extensions of time where a plaintff's failure to serve a defendant is caused by his lack of diligence.” R. 32-1 at 4 (citing Dumas v. Decker, 556 Fed. App'x 514, 515 (7th Cir. 2014)). But the Court need not decide whether Plaintiff can show good cause for failing to effect service within the 120-day period because Rule 4(m) preserves the Court's discretion to extend the deadline for service of process even without a showing of good cause. See Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998) (“Even if a plaintiff does not establish good cause, the district court may in its discretion grant an extension of time for service.”). As the advisory notes explain, Rule 4(m) “authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown. Such relief . . . may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.” Fed.R.Civ.P. 4, advisory committee notes, 1993 amendment, Subdivision (m).[4]

         “[D]istrict courts are permitted to take factors like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service into account” in deciding whether to exercise discretion to allow relief from the 120-day rule. Troxell, 160 F.3d at 383l; see United States v. McLaughlin, 470 F.3d 698, 701 (7th Cir. 2006) (noting the “wisdom of Rule 4(m) in allowing a judge to excuse a delay in service even if the plaintiff has no excuse at all”). Officer Boogerd argues that the only factor the Court should consider is whether Plaintiff exercised due diligence in attempting to serve him. But even if the Court were to resolve in favor of Boogerd all factual disputes presented by the parties in their briefing concerning Plaintiff's counsel's diligence (or, in Boogerd's view, lack thereof), the Court still can exercise its discretion to grant an extension in Plaintiff's favor. Although a district court is not required to excuse untimely service, the Seventh Circuit expects most district courts to consider the balance of hardships when determining whether to dismiss a complaint for lack of timely service. As the Seventh Circuit has explained:

Where as in this case the defendant does not show any actual harm to its ability to defend the suit as a consequence of the delay in service, where indeed it is quite likely that the defendant received actual notice of the suit within a short time after the attempted service, and where moreover dismissal without prejudice has the effect of dismissal with prejudice because the statute of limitations has run since the filing of the suit * * * most district judges probably would exercise lenity and allow a late service, deeming the plaintiff's failure to make timely service excusable by virtue of the balance of hardships. amendments to the federal rules, “which resulted in current Rule 4(m), ” under which the district court “has the discretion to grant an extension, even in the absence of good cause”).

Coleman v. Milwaukee Bd. of Sch. Directors, 290 F.3d 932, 934 (7th Cir. 2002).

         The Court concludes that the balance of hardships in this case tips in favor of excusing late service, even if Plaintiff's counsel acted less than diligently (which the Court does not decide here). Plaintiff's delay in serving Boogerd was not so great that the Court can infer any actual harm to his ability to defend this suit, and in fact Boogerd has not argued that he suffered any prejudice. “When delay in service causes zero prejudice to the defendant or third parties (or the court itself), the granting of extensions of time for service, whether before or after the 120-day period has expired, cannot be an abuse of discretion.” McLaughlin, 470 F.3d at 701. Moreover, it is likely that Officer Boogerd received actual notice of the suit within a short time after the case was filed because Plaintiff served the Naperville Police Department[5] and the same attorney representing the City (originally named as the Naperville Police Department) also is representing Officer Boogerd. The service issue will not cause any further delay in the case because Plaintiff successfully obtained service over Boogerd a little over a month after the 120-day deadline. Finally, dismissal without prejudice pursuant to Rule 4(m) in this case would have the effect of dismissal with prejudice because the statute of limitations ran after Plaintiff filed suit and before Plaintiff served Boogerd. The consequences for Plaintiff if the Court does not allow an extension far outweigh the prejudice to Officer Boogerd if an extension is granted. Given the judicial preference for adjudication on the merits rather than a procedural default, the Court will exercise its discretion to allow the late service (as an alternative to finding that service was timely).

         2.False Arrest Claim

         Officer Boogerd next argues that Plaintiff's § 1983 claim predicated on a false arrest (Count One) should be dismissed because Plaintiff has failed to plausibly allege he was arrested without probable cause. “Probable cause to arrest is an absolute defense to any claim under Section 1983 against police officers for wrongful arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). Plaintiff alleges facts that would support a claim that Officer Boogerd lacked probable cause to arrest him for driving under the influence of alcohol, and Officer Boogerd appears to concede as much. See R. 32-1 at 6 (“Plaintiff's allegations might support a claim that an arrest for DUI-Alcohol was without probable cause”). But Boogerd also says that while it is “true” that “there was no probable cause to arrest Plaintiff for driving while impaired by alcohol, ” it “is also completely irrelevant, ” R. 41 at 6, because Plaintiff was not arrested for driving under the influence of alcohol. Instead, Boogerd claims, Plaintiff was arrested for driving while under the influence of drugs and for driving on a suspended driver's license. Id.

         The complaint alleges that the police officers told Plaintiff he was under arrest for suspicion of driving while under the influence of alcohol. R. 46 at 5 (¶ 34).[6] Boogerd asks the Court to make a factual finding contrary to this allegation, namely, that the reasons for Plaintiff's arrest was suspicion of driving while under the influence of drugs and driving with a suspended license. He attaches to his motion to dismiss certain documents to prove that Plaintiff was charged with these two offenses, which he asks the Court to judicially notice. The documents include state court documents showing that Plaintiff was charged with driving under the influence of drugs and driving without a valid license. In addition, Boogerd attaches a copy of Plaintiff's driving record generated by the Illinois Secretary of State, which Boogerd contends shows that Plaintiff did not have a valid license or permit at the time of his arrest.

         It may very well be, as Officer Boogerd contends, that the documents in question establish what Boogerd say they do and that the Court can in fact take judicial notice of them. But even so, the documents do not definitively establish the reasons for which Plaintiff was arrested, and, more to the point, they do not establish as a matter of law that Boogerd had probable cause to arrest Plaintiff.

         To begin with, Officer Boogerd does not explain why it makes any difference that Plaintiff might have been arrested for driving while under the influence of drugs rather than for driving while under the influence of alcohol. The complaint alleges that the only facts known to the arresting officers on which they based their belief that Plaintiff had operated a motor vehicle while under the influence were the facts that he was sleeping in his car and sweating. R. 35 at 4. If Boogerd concedes, as he does, that these facts are insufficient to establish probable cause for an arrest for driving under the influence of alcohol, then he also must concede that these facts are insufficient to establish probable cause for an arrest for driving under the influence of drugs. Plaintiff's allegations plausibly suggest that there was nothing about his demeanor, behavior, or conduct that would have given the officers probable cause to conclude that Plaintiff was under the influence of anything, whether alcohol or drugs, on the night of his arrest.

         Boogerd also ignores facts alleged in the complaint that support the conclusion that he lacked probable cause to arrest Plaintiff for driving without a valid drivers license, even if one assumes that Plaintiff in fact did not have a valid drivers license. The complaint alleges that the arresting officers asked Plaintiff for his drivers license, that Plaintiff heard one of the officers “run” his name over the radio to validate information, and that Plaintiff overheard a voice on the other end of the radio state “he's clear.” R. 46 at 4-5. Even if, as Boogerd contends, Plaintiff did not have a valid drivers license, that fact would not be relevant to the probable cause issue if Boogerd believed otherwise at the time. See Williams v. Rodriguez, 509 F.3d 392, 399 (7th Cir. 2007) (probable cause determination turns on the information known to the arresting officer at the time of the arrest). Indeed, the very case cited by Officer Boogerd (R. 32-1 at 7)-Dyson v. Village of Midlothian, 2014 WL 584900 (N.D. Ill. Feb. 14, 2014)-makes this point. In Dyson, the plaintiff alleged that the arresting officer pulled his car over though the officer had no reason to believe that the plaintiff had committed or was committing a crime, that the officer asked the plaintiff for his driver's license, which the plaintiff provided, and that the officer then handcuffed the plaintiff and took him to the police station where he was issued tickets for, among other things, driving without a license. Id. at *1. The plaintiff brought suit under § 1983 alleging false arrest. The officer argued on a motion to dismiss that the plaintiff could not allege that the officer lacked probable cause to arrest him “because records from the Illinois Secretary of State establish that [the] plaintiff's driver's license was suspended on the day he was arrested for driving without a license.” Id. The court rejected this argument because “[t]he records do not . . . establish that [the officer] knew [the] plaintiff's license was suspended, the touchstone of probable cause.” Id. (emphasis added). Moreover, the court said, “though [the] plaintiff alleges that he gave [the arresting officer] his driver's license, he does not allege that [the arresting officer] took the license back to his squad car or any other fact from which we can infer that [the arresting officer] checked whether [the] plaintiff's license was valid.” Id. (citation omitted).

         Here, like in Dyson, the documents attached to Officer Boogerd's motion to dismiss do not establish that Officer Boogerd knew that Plaintiff's license was invalid at the time he arrested Plaintiff in the McDonald's parking lot. Having cited Dyson in support of his argument for dismissal, Officer Boogerd then attempts to distinguish that case by arguing that, unlike the allegations there, this case includes the allegation that Plaintiff gave Officer Boogerd his license and that Officer Boogerd “‘r[a]n[ ] Plaintiff's name over the radio to validate [the] information.'” R. 32-1 at 7 (quoting paragraph 24 of Second Amended Complaint). While this is true, Officer Boogerd ignores the further allegation that Plaintiff “overhear[d] a lady on the other end of the radio state, ‘he's clear.'” R. 27-1 at 5 (¶ 25). This allegation raises a disputed issue of fact as to what Officer Boogerd knew about Plaintiff's license at the time the arrest took place in the McDonald's parking lot. The Court cannot resolve that factual issue on a motion to dismiss.

         3.Unlawful Terry Stop Claim

         Officer Boogerd next argues that Plaintiff's § 1983 claim predicated on an unconstitutional investigatory stop (Count Two) should be dismissed because Plaintiff has failed to plausibly allege he was detained without reasonable suspicion. An “investigatory, ” also known as a Terry, [7] stop

complies with the Fourth Amendment if the brief detention is based on reasonable suspicion that the detained individual has committed or is about to commit a crime. The officers initiating the investigatory stop must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, suggest criminal activity. [I]narticulate hunches will not suffice. However, [r]easonable suspicion is a lower threshold than probable cause and considerably less than preponderance of ...

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