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Klingler v. City of Chicago

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

October 20, 2017

WHITLEY KLINGLER, 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); COMMANDER VOULGARIS (Star #____); OFFICER BRANNIGAN (Star # 1593); 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

          Thomas M. Durkin, Judge

         Before the Court is Defendant Will County's motion for summary judgment. For the following reasons, that motion will be granted.

         Discussion

         A. Respondeat Superior Claims Against Will County (Counts VI and VII)

         In its previous memorandum opinion and order in this case, the Court held that, because Will County is not Defendant Griebel's employer, [1] Will County cannot be held liable under a theory of respondeat superior for Griebel's alleged misconduct. R. 129 at 20-21 (Klinger v. City of Chicago, 2017 WL 736895, at *7 (N.D. Ill. Feb. 24, 2017); see Moy v. Cnty. of Cook, 640 N.E.2d 926, 931 (Ill. 1994) (“The sheriff is a county officer and, as such, is not in an employment relationship with the County of Cook. Therefore, the county may not be held vicariously liable for the sheriff's alleged negligent conduct.”). Accordingly, the Court dismissed with prejudice Plaintiff's respondeat superior claims against Will County in Count VI (battery) and Count VII (IIED) of the First Amended Complaint. R. 129 at 21 (Klinger, 2017 WL 736895, at *7).

         Plaintiff subsequently filed the Second Amended Complaint in which she alleged the identical respondeat superior claims against Will County as she had alleged in the First Amended Complaint. Included in the Second Amended Complaint is the same allegation found in the First Amended Complaint that Will County “is or was the employer of the Defendant Officer Griebel.” R. 136 at 9 (¶ 62). That allegation, of course, is directly contrary to the law set forth in this Court's previous ruling as discussed above. Moreover, Plaintiff's realleging of respondeat superior claims against Will County in Counts VI and VII of the Second Amended Complaint is in direct contravention of the Court's earlier ruling dismissing Will County from those counts with prejudice. Because this Court dismissed Will County from Plaintiff's respondeat superior claims with prejudice, and because those claims are without legal merit for the reasons previously given in the Court's February 24, 2017 memorandum opinion and order, the Court now enters summary judgment in favor of Will County on Counts VI (battery) and VII (IIED) of the Second Amended Complaint.[2]

         B. Indemnity Claim Against Will County (Count V)

         The only claim against Will County that survived Will County's motion to dismiss the First Amended Complaint was Count V, which asserted a claim against Will County for “[i]ndemnity . . . pursuant to 745 ILCS 10/9-102.” R. 62 (¶¶ 57-59); see R. 129 at 21 (Klinger, 2017 WL 736895, at *7). Plaintiff realleges that same claim in Count V of the Second Amended Complaint. See R. 136 at 8-9 (¶¶ 61-63).

         An indemnity claim against a county arises out of Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379 (7th Cir. 2001) (Carver I). In that case, the Seventh Circuit was faced with the “recurring question” of “[w]ho pays official-capacity judgments in Illinois when the wrongdoer is an independently-elected officer, ” like a county sheriff (or one of his appointed deputies)? Id. at 381. Independently elected officials “lack authority to levy taxes or establish their own budgets. This leads the independently-elected officers to contend that the counties must pay; but the counties, which are unable to control the conduct of the officers, insist that they cannot be held liable because an official-capacity judgment runs against the office and not against an ‘employee' of the county.” Id. (emphasis in original). The Seventh Circuit certified the question to the Supreme Court of Illinois, id. at 386, which, in its response, considered whether Section 9-102 of the Local Governmental and Governmental Employees Tort Immunity Act applied to the situation. See Carver v. Sheriff of La Salle Cnty., 787 N.E.2d 127, 135-40 (Ill. 2003) (Carver II). Section 9-102 states that

A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages (and may pay any associated attorney's fees and costs) for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article. . . . A local public entity may make payments to settle or compromise a claim or action which has been or might be filed or instituted against it when the governing body or person vested by law or ordinance with authority to make over-all policy decisions for such entity considers it advisable to enter into such a settlement or compromise.

745 ILCS 10/9-102. The Supreme Court of Illinois held that the “office of sheriff” is a “local public entity” within the meaning of Section 9-102, and, therefore, that Section 9-102 “authorizes the sheriff (as the local public entity) to pay any judgment or settlement for compensatory damages for which the office of the sheriff is liable.” Carver II, 787 N.E.2d at 138. As a result, the court held, only the county sheriff has authority under Section 9-102 “to settle litigation filed against the sheriff's office and to direct the office to pay that settlement.” Id.

         Pursuant to Carver II, if Griebel was acting within the scope of his employment, Section 9-102 imposes respondeat superior liability on his employer, which is the Sheriff's Office, not Will County. Yet Count V of the Second Amended Complaint is labeled “745 ILCS 10/9102-Indemnity, ” and seeks to hold Will County, but not the Sheriff's Office, liable as the “employer of the Defendant Officer Griebel” for any judgment entered against Griebel. R. 136 at 8-9 (¶¶ 61-63). Even though as written Count V is improper, Plaintiff is correct to include Will County in this lawsuit. This is because, “although the sheriff has authority to settle claims filed against the sheriff's office pursuant to section 9-102, [3] the statute is silent with respect to the specific mechanism for funding the judgment.” Carver II, 787 N.E.2d at 138. The county sheriff itself does not have access to funds to pay a settlement or judgment because he lacks the authority to levy taxes or establish a budget. Id. To resolve this “dilemma, ” the Carver II court turned to statutory law that provides “that the sheriff's office is to be financed by public funds appropriated to it by the county board.” Id. (citing 55 ILCS 5/4-6003; 55 ILCS 5/5-1106). Accordingly, the court held, “the county is obligated to provide funds to the county sheriff to pay official capacity judgments entered against the sheriff's office.” Id.

         After receiving this direction from the Illinois Supreme Court regarding the role the county versus the sheriff's office plays in a lawsuit brought to recover for injuries sustained as a result of the conduct of a sheriff's office employee, the Seventh Circuit opined on “an additional point of federal law, ” which the court said flowed from the Carver II decision. According to the Seventh Circuit, “[b]ecause state law requires the county to pay, federal law deems it an indispensable party to the litigation.” Carver v. Sheriff of LaSalle Cnty., Illinois, 324 F.3d 947, 948 (7th Cir. 2003) (Carver III) (citing Fed.R.Civ.P. 17). Thus, the court held, Carver II gives rise to the rule “that a county in Illinois is a necessary party in any suit seeking damages from an independently elected county officer (sheriff, assessor, clerk of court, and so on) in an official capacity.” Id.

         What this all means for the present case is that, because of the peculiar relationship created by the Illinois statutory scheme between a sheriff's office and the county, Plaintiff needed to sue both entities. See, e.g., Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 517 (7th Cir. 2007) (“we agree with the plaintiffs that Bureau County would have been a necessary party to the case if the complaint had stated a claim against the Sheriff in his official capacity”) (emphasis added). But Plaintiff has bypassed the Sheriff's Office entirely in the Second Amended Complaint. While Plaintiff named the Will County Sheriff as a defendant in this case, the only claim against him was a Monell claim in the First Amended Complaint that was dismissed and not re-pled in the Second Amended Complaint.[4]

         A further pleading problem is that, notwithstanding that she labels her claim as being one for “indemnification, ” she continues to improperly allege a claim against Will County for respondeat superior liability pursuant to Section 9-102 rather than a claim for indemnification under Carter II.

         To correct these problems, when she filed the Second Amended Complaint Plaintiff should have followed the Court's direction in its previous memorandum opinion order and substituted the Sheriff's Office for Will County as a defendant in Counts V, VI, and VII, which all seek respondeat superior liability pursuant to Section 9-102. She could have then added a separate indemnity claim against Will County pursuant to Carver II.[5] Having failed to do so and with the Monell claim against the Sheriff's Office now out of the case, Plaintiff has no pending claim against the Sheriff's Office, which means the Second Amended Complaint does not present a live controversy under Carver II for indemnification by the County. See, e.g., Wallace, 345 F.Supp.2d at 925 (“[T]he County must pay for a tort judgment entered against [a sheriff deputy] for which the Sheriff is directed to pay by § 9-102 or is found vicariously liable under the doctrine of respondeat superior.”) (emphasis added); Cooper v. Office of the Sheriff of Will Cnty., 333 F.Supp.2d 728, 736-37 (N.D. Ill. 2004) (Will County “is a ...


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