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Denson v. Village of Johnsburg

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

January 11, 2018

Stephen Denson, et al., Plaintiffs,
Village of Johnsburg, et al., Defendants.


          Philip G. Reinhard, Judge

         For the reasons set forth below, the court grants defendants' motion to dismiss count IV of plaintiff's complaint [15].


         This matter arises out of plaintiffs Stephen Denson's and Susan Flood's 42 U.S.C. § 1983 complaint [1] alleging that they were subject to false arrest (counts I and III), and malicious prosecution (counts V and VI) by defendant Johnsburg police officers J. Ehlers and M. Vollmer. Plaintiff Denson further alleges he was subject to excessive force (count II) and a violation of equal protection - class-of-one (count IV) by the defendant officers. Plaintiffs also bring claims of respondeat superior and indemnification against the Village of Johnsburg (counts VII and VIII).

         On August 28, 2017, defendants filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss count IV of plaintiffs' complaint, equal protection class-of-one, on the basis that this claim is merely a recitation of the elements of an equal protection class-of-one claim and, therefore, is improperly pleaded and fails to state a claim. See [15]. On October 2, 2017, plaintiff filed a response in opposition [22]. On October 17, 2017, defendants filed a reply [23]. This matter is now ripe for the court's review.

         When evaluating a Rule 12 (b)(6) motion to dismiss, the court must “accept[] all well-pleaded facts as true and draw[] all reasonable inferences in favor of the . . . non-moving parties.” Bonnstetter v. City of Chicago, 811 F.3d 969, 973 (7th Cir. 2016) (internal citations omitted). “A Rule 12(b)(6) motion challenges the sufficiency of the complaint itself.” Id. “To state a claim, a complaint must first provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” Id. (citing Fed.R.Civ.P. 8(a)(2)). “The statement of the claim must sufficiently give ‘fair notice of what the ... claim is and the grounds upon which it rests' to the defendants.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To state a claim for relief, a complaint must provide more than ‘abstract recitations of the elements of a cause of action or conclusory legal statements.' Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Instead, a plausible claim must include ‘factual content' sufficient to allow the court ‘to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).” Charleston v. Board of Trustees of University of Illinois at Chicago, 741 F.3d 769, 772 (7th Cir. 2013).


         The following factual background is based on the allegations in plaintiff's complaint. See [1]. On November 29, 2015, at around 1:30 a.m., plaintiff Stephen Denson was at Half Time Bar in Johnsburg, when defendant Johnsburg police officers J. Ehlers and M. Vollmer pulled into the parking lot of the bar. In the defendant officers' presence, plaintiff D enson tossed his cell phone. The defendant officers then issued plaintiff Denson a citation for littering. Plaintiff Flood then arrived at the parking lot of the bar with plaintiff Denson's sister and plaintiff Denson's childhood friend Mario Casciaro.[1]Plaintiff Denson, upset over the littering citation, ripped up the citation and tossed it onto defendant Ehlers' vehicle. Defendant Vollmer then told plaintiff Denson to pick up the torn citation, which he did. Defendant Vollmer then placed plaintiff Denson under arrest because he did not like the way plaintiff Denson picked up the citation. Defendant officers Vollmer and Ehlers handcuffed plaintiff Denson. Plaintiff Denson then made some remark to the defendant officers and the defendant officers slammed plaintiff Denson into the side of defendant Ehlers' squad car, knocking the side mirror out of place. Plaintiff Denson was then taken to the Johnsburg police department. Plaintiff Flood, plaintiff Denson's sister and Casciaro followed the defendant officers to the police department. Once at the police department, plaintiff Flood put the squad car side mirror back into place.

         Defendant Vollmer arrested plaintiff Flood and charged her with obstructing a police officer. Plaintiff Flood was acquitted after trial of this offense. Plaintiff Denson was charged with criminal damage to property and two counts of littering. All three charges against plaintiff Denson were nolle prossed by the state.

         B. ANALYSIS

         Defendants have moved to dismiss count IV (equal protection class-of-one) on the grounds that this claim lacks factual allegations describing any discrimination suffered by plaintiff Denson in comparison to any other person. See [15].

         A class-of-one equal protection claim recognizes that the Equal Protection Clause of the Fourteenth Amendment may give rise to a cause of action “on behalf of a ‘class of one' where the plaintiff d[oes] not allege membership in a class or group” if the plaintiff can show that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook, et al. v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (emphasis added). The Equal Protection Clause “protect(s) individuals against purely arbitrary government classifications, even when a classification consists of singling out just one person for different treatment for arbitrary and irrational purposes.” Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). Moreover, equal protection class-of-one claims can be based on allegations of “irrational or malicious application of law enforcement powers.” Id. “[T]he purpose of entertaining a ‘class of one' equal protection claim is not to constitutionalize all tort law nor to transform every claim for improper provision of municipal services or for improper conduct of an investigation in connection with them into a federal case.” McDonald v. Village of Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004). “The appropriate limiting principle must be tailored to the type of government action at issue.” Geinosky, 675 F.3d at 747.

         The law regarding equal protection class-of-one is in flux. In Del Marcelle v. Brown County Corp., et al., 680 F.3d 887 (7th Cir. 2012) (en banc) (per curium), the Seventh Circuit split concerning the standard to address class-of-one claims. The issue in Del Marcelle was the role of illegitimate motive or irrational purpose in class-of-one claims. The court split three ways. Under the plurality opinion, the plaintiff would be required to plead that the disparate treatment was motivated by ill will (a purpose unrelated to public duty) Id. at 889; the dissenting opinion held the position that personal animus is not an element of the claim but just one way to prove that the defendant's actions lacked a rational basis Id. at 915; and one member of the court concluded that the class-of-one doctrine should not apply to federal administrative litigation. Id. at 905. Also, the guidance for the standard of what satisfies a showing of others “similarly situated” has evolved. As noted by plaintiff, a class-of-one claim can be viable without a showing of similarly situated comparators. “Evidence of similarly situated individuals is not required as part of a formalistic mandate, but such evidence may help to establish disparate treatment.” Brunson v. Murray, 843 F.3d 698, 706 (7th Cir. 2016). For instance, in Geinosky, the Seventh Circuit reversed the district court dismissal based on plaintiff's failure to identify comparators in his complaint. There, the court found that the pattern of the defendant police officers' conduct toward the plaintiff demonstrated a clear discriminatory purpose: “[W]here the alleged facts so clearly suggest harassment by public officials that has no conceivable legitimate purpose, ” the plaintiff was excused from identifying comparators. Geinosky, 675 F.3d at 748.

         Here, the equal protection class-of-one count of plaintiff's complaint alleges defendant officers treated plaintiff “differently than other citizen [sic] of Johnsburg because of [plaintiff's] friendship with Mr. Casciaro” [1 at p. 5]. While plaintiff's complaint does not identify any other citizen of Johnsburg that was treated differently than plaintiff by the defendant officers, the court agrees with plaintiff that a lack of comparators is not necessarily fatal to his class-of-one claim. In support of his position that pleading a class-of-one claim does not require proof that other were treated different than him, plaintiff cites to several Seventh Circuit cases where the court found that a class-of-one claim may be viable without identifying other comparators. However, in all cases cited by plaintiff, the court was presented with plaintiffs who were singled out to exact “retaliation, ” “vengeance, ” or “sheer vindictiveness.” Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995) (liquor license applicant plaintiff stated a claim for a violation of equal protection where plaintiff sufficiently pled that the action taken by the state was retaliatory and vengeful, and a spiteful effort to “get” him for reasons unrelated to a legitimate state objection); Olech v. Village of Willowbrook, 160 F.3d. 386 (7th Cir. 1998) (case allowed to proceed on pleading where plaintiff alleged she was “picked on” out of “sheer vindictiveness” by government officials, in violation of equal protection clause); Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005) (court affirmed district court granting of defendant's motion for summary judgment but noted the typical class-of-one case is one in which a public official “with no conceivable basis for his action other than spite or some improper motive (improper because unrelated to his pubic duties), comes down hard on a hapless private citizen”); and Geinosky v. City of Chicago, 675 F.3d 743, 748 (7th Cir. ...

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