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Lark v. City of Evanston

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

January 31, 2017



          Virginia M. Kendall United States District Court Judge

         Plaintiffs Trinette Lark ("Lark"), Bria Diaz, ("Diaz"), and Prince Ford ("Ford") filed an eight-count Complaint against the Defendants City of Evanston ("City"), Officer Daniel F. Rosenbaum #161 ("Rosenbaum"), Officer Bernhardt #217 ("Bernhardt"), Officer Jeremy Nieman #154 ("Nieman"), Det. Brian Hicks #251 ("Hicks"), Det. David Cherrey #127 ("Cherrey"), Officer I. Reza #144 ("Reza"), Officer Carrasco ("Carrasco"), Sgt. Jason Kohl ("Kohl"), Sgt. Mark Dobrowolski ("Dobrowolski"), and Unknown Evanston Police Officers. (Dkt. 1.) The Complaint alleges violations of their Fourth Amendment rights against unlawful search and seizure pursuant to 42 U.S.C. § 1983 (Count I), failure to intervene to prevent these constitutional violations (Count II), false imprisonment (Count III), intentional infliction of emotional distress ("IIED") (Count IV), [1] trespass and conversion (Count VI), indemnification (Count VII), and respondeat superior (Count VIII). (Id.)

         Defendants filed two separate Motions to Dismiss against all counts for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants Rosenbaum, Bernhardt, Nieman, Carrasco, Kohl, Dobrowolski, and the City filed one motion to dismiss. [6] Defendants Cherrey, Reza, Hicks, and the City filed separately. [8] Due to the extensive overlap in facts and legal issues, this Court consolidates the Motions to Dismiss and considers them together. For the following reasons, the Court grants in part and denies in part the Motions to Dismiss.


         On April 26, 2015, Plaintiffs Lark, Diaz, and Ford ("Plaintiffs") attended a family barbecue at Lark's home. (Dkt. 1, at 3.) Diaz and Ford are Lark's two adult children. (Id.) Diaz was living in the first floor apartment of Lark's home at the time. (Id.) Lark also rented out her basement as an apartment unit, which had a separate front and back door that locked and appeared to be a separate apartment. (Id.) Chance, the family's two-year-old German Shepard dog, also lived at the residence. (Id. at 3, 5.) No official complaints had been filed about Chance. (Id. at 6.) He had not bitten anyone, nor had he aggressed or endangered anyone. (Id.)

         On April 26, around 8:00 p.m., Chance was tied up with his collar and leash to a pole in the basement unit because he had just received a bath and was drying off. (Id. at 4.) Around 8:00 p.m., Lark called the Evanston Police Department seeking help to assist in breaking up a verbal altercation that arose between Lark's fiance, Clarence Cavines ("Cavines"), and Diaz. (Id.) Before any officers arrived, Cavines left the premises and the argument was resolved. (Id.) When Defendant Officers arrived, Lark, Diaz, and Ford informed the officers that Cavines had left, that the argument was over, and asked them to leave the premises. (Id.) The Officers did not leave and instead stayed to question the Plaintiffs about the whereabouts of Cavines. (Id.) Plaintiffs informed the two officers interviewing them in the kitchen that Chance was in the basement. (Id.)

         During these interviews, Detective Cherrey, Detective Hicks, and other Unknown Officers went down the back stairs to the basement. (Id. at 4-5.) Plaintiffs did not know that this was occurring and did not give their consent. (Id.) No one heard Chance bark or growl during the time that Defendant Officers were present at Lark's residence. (Id. at 6.) Detective Cherrey opened the door to the basement with his gun drawn, where Chance was leashed to the pole. (Id. at 5.) Cherrey discharged his weapon five times and killed Chance. (Id)

         Upstairs, Plaintiffs heard a loud yelp and some banging from the basement. (Id. at 4.) Plaintiffs later learned that these were gun shots. (Id.) The Defendant Officers who had been interviewing the Plaintiffs in the kitchen immediately directed the Plaintiffs and all others at the barbecue to move to the front porch. (Id. at 5.) While on the porch, the Plaintiffs could hear Chance yelping and whining. (Id.) They cried and were visibly upset. (Id.) Defendant Officers did not tell Plaintiffs what had happened in the basement and would not let the Plaintiffs go down into the basement to assist Chance. (Id.) Defendant Officers did not aid Chance or drive him to the animal hospital, where he might have been saved. (Id.)

         After more than an hour on the front porch, an Evanston police supervisor informed Plaintiffs that Chance had been shot. (Id. at 6.) At that point, officers allowed Ford to go down into the basement. (Id.) As a result of the Defendant Officers' illegal search and seizure, Plaintiffs suffered emotional anguish, nightmares, anxiety, fear, physical symptoms like headaches and stomach aces, inability to sleep, pain, suffering, embarrassment, pecuniary loss, and the loss of their family dog, Chance. (Id. at 7-9.)

         At all relevant times, the Defendant Officers acted under the color of law in their official capacities as Evanston Police Officers. (Id.)


         Defendants move to dismiss all claims pursuant to Rule 12(b)(6). Under Rule 12(b)(6), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). When discussing the merits of a motion to dismiss, the Court must view the facts in the light most favorable to the non-moving party, and facts alleged must be accepted as true. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)). While factual allegations do not need to be detailed, the plaintiff must put forth facts that when "accepted as true . . . state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). If the facts pled in the complaint permit the Court to reasonably infer the defendant is liable and relief can be granted, it is facially plausible. Id.


         Defendants move to dismiss Plaintiffs' claims by alleging that no unlawful search occurred, and even if it did, that defendants could not have realistically intervened. Alternatively, Defendants argue that they are entitled to qualified immunity. They also argue that Plaintiffs fail to state a cause of action for false imprisonment, and that in any case, probable cause bars this claim. Further, they allege immunity against the Plaintiffs' claims for IIED and Trespass and Conversion, arising under the Illinois Tort Immunity Act.

         A. Plaintiffs' Claims Pursuant to 42 ...

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