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Klingler v. City of Chicago

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

February 24, 2017

WHITLEY KLINGER, Plaintiff,
v.
CITY OF CHICAGO; MAYASOL LLC, d/b/a MCDONALD'S; CHICAGO POLICE OFFICER MAAS (Star # 5237); CHICAGO POLICE DETECTIVE JOHN E.CALLAGHAN (Star # 20933); COUNTY OF WILL; SHERIFF OF WILL COUNTY PAUL KAUPAS; and WILL COUNTY SHERIFF'S DEPUTY MATTHEW GRIEBEL (ID # 01-913), Defendants.

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge

         Plaintiff brought this action under 42 U.S.C. § 1983 seeking recovery for alleged violations of her constitutional rights. All but one of the defendants has filed a motion to dismiss.[1] Defendants' motions will be granted in part and denied in part as set forth below.

         Legal Standard

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.'” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.

         Background

         The facts in this section are taken from the allegations in the First Amended Complaint (accepted as true for purposes of Defendants' motions) as well as other filings in this case and documents attached by the parties to their briefs. Matters outside the complaint are included for background purposes only. The Court's ruling on Defendants' motions to dismiss is based only on Plaintiff's allegations and matters outside the complaint referenced by Plaintiff that are not contrary to any of the allegations in the complaint.[2]

         At 1:30 a.m. on March 16, 2014, Plaintiff was in the women's restroom at a McDonald's restaurant located in the City of Chicago at 3620 North Clark, when two unknown men entered. Plaintiff asked them to leave, and they did. When Plaintiff exited the restroom, the same two men were waiting outside and made improper comments to Plaintiff. Tyler Nunez was present and intervened. He exchanged words with the two men and then began to move toward the exit with Plaintiff. As Nunez and Plaintiff were trying to leave, other men approached and impeded their progress. One of those men shoved Nunez hard from behind. The St. Patrick's Day parade in Chicago had taken place that day, and the man was wearing a kilt and carrying bagpipes. He also had what appeared to be a police star around his neck. Nunez told the man he did not want to fight. The man told Nunez “You're coming with me, ” put Nunez in a headlock, and dragged him outside. The man and another unknown assailant knocked Nunez onto the ground and began beating him about the face and body. Plaintiff attempted to stop the men from beating Nunez. The man wearing the kilt punched Plaintiff in the face with a closed fist. Plaintiff, who had her arm in a sling from a previous injury, was thrown to the ground by the other assailant. At this point, Plaintiff flagged down Defendant Officer Maas in a nearby marked Chicago police car. Plaintiff explained to Officer Maas what had happened. Officer Maas spoke to the man in the kilt, and told him “to leave the scene by getting on the party bus, presumably the vehicle he arrived in.” R. 62 at 5 (¶ 29). The man took his bagpipes, got on the bus, and was not seen again. The other assailant also disappeared.

         Plaintiff and Nunez were taken to the hospital, where they were treated for their injuries. Plaintiff later went to the City of Chicago 19th District Police Station and met with Defendant Detective Callaghan to make a formal complaint arising out of the incident. Plaintiff's attempt to file a complaint was “met with apathy and resistance.” Id. at 5 (¶ 32). When Plaintiff pressed Detective Callaghan further about investigating her charges, Callaghan threatened to charge Plaintiff with a crime if she did not drop the matter. Id. at 6 (¶ 34).

         A police report filed by Officer Maas after the incident identifies Plaintiff as the victim of a simple battery. See, e.g., R. 57-1 at 2. The report also identifies a “witness, ” named “P.O. Sean O'Dublan, #1913, Beat: 3100, Chicago, IL.” Id. The suspect who hit Plaintiff is listed as “unknown” and is said to have fled the scene on foot. See R. 57-1 at 4. The report goes on to say that an unidentified officer (referenced as “Beat 1963”) “related to” Officer Maas “that off[-]duty Officer Sean O'Dublan #1913 observed” Plaintiff and the unknown offender “engaged in an altercation.” Id. The same unidentified officer (Beat 1963) also related to Maas that “#1913 P.O. Sean O'Dublin (Witness) did not relate[ ] any other information regarding the incident.” Id. A later report filed by Detective Callaghan states that “P.O. Maas, who was assigned to the paper on the above case, in an attempt to locate the named witness, P.O. Sean O'Dublin[, ] . . . stated, in summary, that he never interviewed the listed witness O'Dublin and was given the name and information by a supervisor on the scene.” R. 57-2 at 17.

         Approximately a month after the incident, Plaintiff called the Independent Police Review Authority (IPRA) to register a complaint, alleging that she had been struck by an unidentified, off-duty Chicago police officer. See R. 57-3 at 2. Approximately ten months later, Plaintiff filed this lawsuit naming as defendants the City of Chicago and Chicago Police Officer Maas and Chicago Police Detective Callaghan (collectively the “City of Chicago Defendants”). Plaintiff also sued the McDonald's restaurant where the incident took place (non-moving defendant Mayasol LLC), and another individual identified as “Chicago Police Officer Sean O'Dublan.” Plaintiff further alleged that, “[u]pon information and belief, Defendant Officer Maas failed to obtain Defendant Officer O'Dublan's correct name, star number, or contact information, and wrote fictitious information into the police report.” R. 1 at 5 (¶ 30).

         Approximately six months after she filed the original complaint, Plaintiff initiated discovery in an attempt to identify her alleged assailant who she understood was most likely a Chicago police officer with the fictitious name of “O'Dublan.”[3] Plaintiff served the City of Chicago Defendants with written discovery requests, and also sent subpoenas to the Naperville Police Department, the Elmhurst Police Department, and the Emerald Society.[4] See R. 28 at 1-2. Approximately two months later, the parties appeared in court on a motion to compel filed by Plaintiff against the City of Chicago Defendants. Plaintiff sought responses to her written discovery requests, which were more than thirty days past due. Plaintiff argued that the City of Chicago Defendants' failure to timely respond to her discovery requests was impeding her ability to identify her assailant. Although she had received a response to her subpoena from the Emerald Society, that response included a long list of potential suspects, all of whom had participated in the St. Patrick's Day parade on the day in question and could have been wearing a kilt and an officer badge. Plaintiff claimed that she needed the written discovery from the City of Chicago Defendants before she could proceed with depositions and other discovery to determine the exact identity of the “Officer O'Dublan” who assaulted her.

         The Court granted Plaintiff's motion to compel and directed the City of Chicago Defendants to respond to Plaintiff's written discovery requests on or before November 9, 2015. R. 30. Despite the Court's order, the City of Chicago Defendants did not provide their responses until November 17, 2015. See R. 37 at 2 (¶ 13). Moreover, the responses they ultimately served on Plaintiff contained numerous objections, leading to an exchange of letters and emails over the course of the next several months (through the end of 2015) in an attempt to resolve the parties' differences concerning the scope of discovery that would be provided by the City. Because of their disputes over the scope of written discovery, the parties postponed depositions that had been scheduled and Plaintiff sought and obtained an extension of the discovery deadline. Several more months later (through early spring 2016), on-going issues over the scope of Plaintiff's written discovery requests still had not been resolved, prompting another extension of the discovery deadline. See R. 34. Almost two months after that (and two weeks prior to the extended May 2016 discovery deadline), Plaintiff filed a second motion to compel and a third motion to extend the discovery deadline. See R. 37, R. 39.

         At the hearing on Plaintiff's latest motions (held on May 26, 2016), the Court noted that it was losing patience with what seemed like unnecessary delays in discovery. The City maintained in response that Plaintiff was going about the process of identifying the unknown “Officer O'Dublan” wrong, and that her discovery requests to which the City had not yet responded were not likely to be effective in that regard. The Court extended the discovery deadline to July 12, 2016, ordered the City of Chicago to produce photographs of certain Chicago police officers, continued Plaintiff's second motion to compel, and directed the parties to work together with the mutual goal of determining the identity of “Officer O'Dublan” before the new discovery deadline. See R. 42 (Agreed Order dated May 27, 2016).

         In late June 2016, Plaintiff filed a motion seeking leave to file the First Amended Complaint, which revealed that Plaintiff had recently been able to identify her assailant without the aid of discovery from the City of Chicago Defendants. Plaintiff learned the identity of “Officer O'Dublan” from “a third party, ” who told Plaintiff that an IPRA investigation conducted shortly after the incident had determined that “Chicago Police Officer Sean O'Dublan” was in reality a Will County sheriff's deputy named Matthew Griebel. See R. 55 at 4 (¶¶ 13-15). Plaintiff sought to amend the complaint by naming Officer Griebel in place of “Officer O'Dublan.” Plaintiff contended that she had not been able to identify Defendant Griebel sooner because the City of Chicago Defendants had failed to produce the IPRA investigative report despite Plaintiff having asked for it in her written discovery requests. Id. at 5 (¶¶ 16-17). Plaintiff also filed a motion for sanctions, which argued that, as of July 1, 2016 (more than 16 months after this lawsuit was filed), the City of Chicago Defendants had failed to produce any documents in response to Plaintiff's written discovery requests, had failed to identify a single witness or document in support or in defense of any claim in the case, and had failed to comply with the Court's most recent discovery order to produce certain officer photographs. R. 58 at 1. Emphasizing the City of Chicago Defendants' repeated past failures to comply with the Court's discovery orders, Plaintiff pointed out that the information she had been seeking for the past year and a half regarding Defendant Griebel's identity had been available to the City the entire time this lawsuit had been pending yet Plaintiff was only able to learn of it from a third party. Id. at 5.

         In their opposition to Plaintiff's motion to amend the complaint, the City of Chicago Defendants admitted that an IPRA investigation indeed had been conducted and that the IPRA report of that investigation contained the information Plaintiff had learned from the third party. R. 57 at 3.[5] The City of Chicago Defendants further admitted that they had not turned over the IPRA report to Plaintiff despite her request in discovery for it. Id. They stated, however, that they had requested records from the IPRA but were told that none existed. The City of Chicago Defendants argued that the records they recently discovered had not been “flagged” in response to their previous request for documents from the IPRA because the investigation conducted by the IPRA “did not involve Maas or Callaghan.” Id. The City of Chicago Defendants argued, therefore, that their failure to provide Plaintiff with discovery relating to the IPRA investigation was Plaintiff's fault because Plaintiff knew from the City's written discovery responses that it was unaware of the existence of any IPRA investigation and yet she never told the City that she knew “of an IPRA investigation that did not involve Callaghan or Maas.” R. 58 at 1 (emphasis added). The City of Chicago Defendants did not explain, however, why Plaintiff should have known that the IPRA investigation she reportedly told them she believed had taken place did not reference either Detective Callaghan or Officer Maas. In addition, the City of Chicago Defendants claimed to have requested IPRA files relating not only to Detective Callaghan and Officer Maas but to Plaintiff as well. But they could not explain why their previous request for IPRA files referencing Plaintiff by name (or even the date of the incident) did not turn up any files.[6]

         On July 5, 2016, the Court granted Plaintiff's motion to file the First Amended Complaint as well as her motion for sanctions. R. 60. The Court noted at the sanctions hearing that the recently discovered IPRA report shows that investigating officers were able to identify Officer Griebel by his real name within weeks of the incident but that Plaintiff had been trying to do the same through discovery in this litigation with no success for over a year and a half.[7] The First Amended Complaint added Defendant Griebel as a defendant, and a new discovery schedule was set. Defendants then filed the present motions to dismiss, which were not fully briefed until January 18, 2017. On February 3, 2017, the Court granted another motion to extend the discovery deadline, and, on February 15, 2017, it provided the parties with an oral preview of its ruling on the motions to dismiss, stating that a written opinion would follow.

         DISCUSSION

         A. Deputy Sheriff Griebel

         Defendant Griebel's primary argument for dismissal of Plaintiff's claims against him is that they are barred by the statute of limitations.[8] Thus, Griebel argues that Plaintiff's § 1983 excessive force and conspiracy claims (Counts I and III), are barred by Illinois' two-year personal injury statute of limitations. See Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005). Griebel also argues that Plaintiff's state law battery and IIED claims (Counts VI and VII) are barred by the one-year statute of limitations found in the Illinois Tort Immunity Act, 745 Ill. Comp. Stat. Ann. § 10/8-101.[9]

         The incident at issue took place on March 16, 2014. See R. 62 at 3 (¶ 10). The original complaint was filed on February 21, 2015, but it did not name Deputy Griebel as a defendant. Instead, the original complaint named “Chicago Police Officer Sean O'Dublan (Star # 1913)” as the officer who struck plaintiff. See R. 1 at 1. Plaintiff learned Griebel was O'Dublan shortly before June 22, 2016. There is no doubt that Plaintiff intended to name Griebel as a defendant in the original complaint, which was timely filed on February 21, 2015. He was named, however, under the alias or fictitious name of “Officer O'Dublan.” Griebel was named by his correct name for the first time in the First Amended Complaint, which was filed on July 6, 2016. The two-year statute of limitations ran about 3 ½ months earlier, on March 16, 2016, and the one-year statute of limitations ran on March 16, 2015, just after the original complaint was filed.

         1. Misnomer Doctrine

         Plaintiff argues that the misnomer doctrine applies to allow relation back of the late naming of Griebel in the First Amended Complaint to the timely filing of the original complaint. That doctrine is codified in an Illinois statute, which provides that “[m]isnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” 735 Ill. Comp. Stat. Ann. § 5/2-401(b). The Seventh Circuit has described the misnomer doctrine as follows:

A misnomer is to be distinguished from a case of mistaken identity. “Misnomer” denotes the case in which the plaintiff has the wrong name of the right party, while in a case of mistaken identity the plaintiff has named the wrong party. In that event the plaintiff must serve the correct defendant before the statute of limitations expires; a misnomer can be corrected at any time, provided that the plaintiff serves the defendant with reasonable promptness, even if it is after the statute of limitations has run (as in a case in which the complaint was filed just before it ran). A misnomer is nothing more than an error in the drafting of the complaint, and it ought to be corrigible by amendment, whereas in a case of mistaken identity the plaintiff has sued the wrong person, and he cannot be allowed by doing that to prevent the right person from pleading the statute of limitations- otherwise, as we have noted, the plaintiff could name “John Doe” in the complaint and take the next twenty years to find out who the actual tortfeasor was.

Athmer v. C.E.I. Equip. Co. Inc., 121 F.3d 294, 296 (7th Cir. 1997) (citations omitted).

         To begin with, neither party has clarified to the Court whether the misnomer doctrine, which is an Illinois rule, applies in federal court to Plaintiff's federal and/or state law claims. But if it does, the Seventh Circuit held in Athmer that the case before it was “not a misnomer case” because “[t]he plaintiff had no idea at the time he filed the original complaint who the tortfeasor was that he was trying to sue. He knew that it was whoever had manufactured the truck bed but he did not know the identity of that manufacturer. It could have been anyone in the world, as far as the plaintiff knew.” Id. at 296. The same can be said here. At the time Plaintiff filed suit, she had no idea who the officer was who struck her; as far as Plaintiff knew, it could have been anybody. Indeed, Plaintiff alleged as much in the complaint when she stated that defendants had given her a fictitious name for her assailant. See R. 1 at 5 (¶ 30). Thus, this is not a misnomer case.

         2. Relation-Back Under Rule 15(c)(1)(C)

         Given that the misnomer rule does not apply, the Court looks to Rule 15(c) of the Federal Rules of Civil Procedure to see whether Plaintiff's claims against Griebel can be said to “relate back” to the timely filing of the original complaint. Rule 15(c) allows relation-back if (1) the amendment asserts a claim that arose out of the conduct or occurrence set out in the original pleading (Fed. R. Civ. P. 15(c)(1)(B)); (2) Griebel received such notice of the action that he will not be prejudiced in defending on the merits (Fed. R. Civ. P. 15(c)(1)(C)(i)); and (3) Griebel knew or should have known that the action would have been brought against him but for the mistake concerning his identity (Fed. R. Civ. P. 15(c)(1)(C)(ii)).

         Griebel does not dispute that the first requirement has been met and makes only conclusory arguments for why the second requirement has not been met. Thus, the Court will focus on the third requirement. Griebel argues that the third requirement is not satisfied because Plaintiff did not make a mistake concerning his identity but rather only lacked knowledge about who he was. This Court's recent opinion in White v. City of Chicago, 2016 WL 4270152 (N.D. Ill. Aug. 15, 2016), contains an extensive discussion of the mistake issue to which Griebel alludes, in which the Court concluded that the Supreme Court's decision in Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010), has changed the old “lack of knowledge is not a mistake” rule for purposes of Rule 15(c)(1)(C) relation-back. See Id. at 15-21. The Court adopts the same reasoning here. After Krupski, the proper inquiry under Rule 15(c)(1)(C) focuses not on whether the plaintiff made a mistake about the identity of the defendant who was misnamed but whether the defendant who was misnamed knew or should have known that the action would have been brought against him had the plaintiff known the truth about his identity. Id.; see also Ryan v. City of Chicago, 2016 WL 6582570, at *2 (N.D. Ill. Nov. 7, 2016); Cheatham v. City of Chicago, 2016 WL 6217091, at *3 (N.D. Ill. Oct. 25, 2016).[10]

         Rather than focusing on what he knew or should have known, Griebel mostly argues about what Plaintiff knew or should have known. Even if that were the correct inquiry, the Court could not decide the question on a motion to dismiss because of numerous factual disputes regarding what Plaintiff should have known. But in any event, what Plaintiff should have known is not the relevant inquiry. Griebel only touches upon what he knew or should have known in a single conclusory sentence stating: “It can hardly be considered reasonable to assume that Defendant Deputy Sheriff could have expected to be named in a lawsuit for allegedly attempting to break up a fight, being punched while trying to do so, and having an object thrown at him.” R. 98 at 7. This statement ignores of course that the Court must accept Plaintiff's version of the facts in ruling on Griebel's motion to dismiss, and Plaintiff's version is inconsistent with Griebel's statement. Moreover, Griebel's reliance on what he believes is or is not “reasonable to assume” regarding what he should have known is misplaced. The question is not what is “reasonable to assume” about what Griebel knew, but what he in fact knew (or should have known).

         The issue of what Griebel knew or shown have known has not been sufficiently addressed in the current briefing, and cannot in any event be answered on the pleadings. To the extent that the pleadings reveal anything on that issue, it would be that Defendant Griebel knew or should have known he was the intended defendant in the original complaint because he struck Plaintiff with his fist (assuming the truth of Plaintiff's allegations). One could also infer that Defendant Griebel knew or should have known he was the intended defendant if he uses the alias or told anyone the evening in question that his name was something akin to “Sean O'Dublan.” There are other facts outside the pleadings to which Plaintiff refers in her response to the motion to dismiss that would also support her argument, including the results of the IPRA investigation showing that the Will County Sheriff's Department was contacted and informed about the incident and Griebel's involvement in it shortly after it occurred. Plaintiff need not have alleged these facts because the statute of limitations is an affirmative defense that she is not required to have anticipated. See, e.g., Covington v. Mitsubishi Motor Mfg. of Am., Inc., 154 Fed. App'x 523, 525 (7th Cir. 2005). Griebel argues that Plaintiff has failed to present any evidence to support her claim that he knew or should have known he was the alleged assailant, R. 124 at 5, but that argument is without merit because Plaintiff does not have to present evidence at this stage in the proceedings. See Gulley v. Moynihan, 2011 WL 2461813, at *4 (N.D. Ill. June 17, 2011) (“whether a plaintiff will be able to respond to the statute-of-limitations defense . . . will require evidence that is not required at the motion-to-dismiss stage”) (citing Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004)). In short, the Court cannot rule as a matter of law that relation back under Rule 15(c)(1)(C) would not apply here. Therefore, Griebel is not entitled to dismissal of the complaint at this stage of the proceedings on the basis of the statute of limitations having run.

         3. Equitable Estoppel, Equitable Tolling, and Fraudulent Concealment

         Even apart from the relation-back principles noted above, the Court agrees with Plaintiff that the allegations in the First Amended Complaint regarding a conspiracy among the various defendants to suppress Griebel's identity provides a factual basis for applying one or more of the doctrines of equitable estoppel, equitable tolling, or fraudulent concealment, to toll the running of the statute of limitations from the date the incident took place through sometime in June 2016, when Plaintiff learned Griebel's true name. The First Amended Complaint was filed only a month after Plaintiff learned that “Officer O'Dublan” was really Officer Griebel, and thus would be timely if any of these equitable doctrines were to apply.

         Griebel argues that tolling should not apply because Plaintiff has not been diligent in discovering his identity. Aside from the fact that this argument involves disputed issues of fact that cannot be resolved on a motion to dismiss, see Gulley, supra, 2011 WL 2461813, the history of this litigation with which this Court is familiar shows otherwise. Plaintiff ultimately obtained Griebel's name from a third party after (1) serving the City of Chicago Defendants with discovery requests, (2) serving subpoenas on various suburban law enforcement agencies and the Emerald Society, and (3) filing two motions to compel against the City of Chicago Defendants. Griebel cites to the fact that Plaintiff knew all along that the officer who struck her was a member of the Emerald Society, arguing that this knowledge was enough to have led her to his identity had she been diligent. But as noted previously, Plaintiff's allegations only show that she suspected that O'Dublan might not be a Chicago police officer, not that she knew for certain he was not. Moreover, the information Plaintiff received from the Emerald Society included over 70 names of officers, any one of whom could have been the person she was ...


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