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Casimir v. City of Chicago

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

March 23, 2018

JEROME J. CASIMIR and BETTY J. DUMAS, Plaintiffs,
v.
CITY OF CHICAGO et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOAN B. GOTTSCHALL UNITED STATES DISTRICT JUDGE.

         Plaintiffs Jerome Casimir (“Casimir”) and Betty J. Dumas (“Dumas”), allege that on July 22, 2014, two Chicago police officers, defendants David Cintron (“Cintron”) and Christoph J. Fraterrigo (“Fraterrigo”), stopped them in the 3300 block of North Clark Street, harassed them, and forged their signatures on tickets for drinking in public. A separate civil rights lawsuit (referred to here as “Romanski”) filed by Casimir and Dumas against other Chicago police officers was pending on that date. See Minute Entry, Casimir v. Romanski, No. 13 C 8774, ECF No. 34 (N.D. Ill. June 17, 2014) (Gettleman, J.) (continuing hearing to schedule settlement conference). Plaintiffs wrote the first three complaints filed in this case without a lawyer's help; they were “pro se.” After the court recruited counsel for them (they proved that they could not pay the filing fee, see 28 U.S.C. § 1915(a), they filed an 11-count Third Amended Complaint (“TAC”), ECF No. 76, against the City of Chicago (“the City”) and the officer defendants. The TAC asserts claims under Illinois law and 42 U.S.C. §§ 1981, 1983, and 1985(3) for Fourth Amendment unreasonable search and seizure (Counts I and II), First Amendment retaliation for protected speech (Count III), fabrication of false evidence in violation of the Fourteenth Amendment's Due Process Clause (Count IV), race discrimination in violation of the Equal Protection Clause (Count V), malicious prosecution in violation of the Fourth and Fourteenth Amendments (Count VIII) and Illinois law (Count IX), conspiracy to violate plaintiffs' constitutional rights (Count VI), a Monell count against the City (Count VII), a respondeat superior count against the City under Illinois law (Count X), and a claim for indemnification against the City under 745 Ill. Comp. Stat. 10/9-102 (Count XI).

         Defendants move to dismiss several counts of the TAC for failure to state a claim. They argue that the federal claims for conspiracy, malicious prosecution, and retaliation are time-barred because they were pleaded for the first time in the TAC. Defendants also contend that the TAC fails to state claims for conspiracy, First Amendment retaliation, fabrication of evidence, race discrimination, and malicious prosecution. For the reasons that follow, the court grants the motion in part and denies it in part.

         I. BACKGROUND

         A. Procedural History

         Initially the sole plaintiff, Casimir filed the original complaint on April 29, 2015. ECF No. 1, 6. Before defendants answered it, Casimir moved for leave to amend his complaint to add Dumas as plaintiff. ECF No. 16, 17. The court granted his request. ECF No. 22.

         The original complaint and the FAC had four counts: Count One, § 1983 claim for “malicious harassment”; Count Two, § 1983 claim for “due process”; Count Three, claim for indemnity against the City of Chicago; and Count Four, “state law claim for respondeat superior.” Defendants moved to dismiss the FAC for failure to state a claim. The court granted their motion but gave plaintiffs leave to replead Count I. ECF No. 32 at 1, 6.

         Still pro se, plaintiffs filed their second amended complaint (“SAC”), ECF No. 40, on April 17, 2016, and defendants again moved to dismiss it. Plaintiffs retitled Count One “malicious harassment claim and illegal search.” SAC 2. The court granted defendants' motion in part and denied it in part, ruling that the SAC stated a Fourth Amendment claim and pleaded claims for equal protection, for malicious prosecution, and under the Illinois constitution. ECF No. 61 at 10-11. The court dismissed the Chicago Police Department as a party and plaintiffs' § 1983 respondeat superior allegations. Id. at 11.

         After obtaining leave of court, recruited counsel filed the TAC on May 22, 2017. It identifies the officer defendants by name for the first time. TAC 1. The pro se complaints named one officer by badge number and the other as the “unknown policeman accompanying” the officer with that badge number. SAC 1, FAC 1, 2-3; Compl. 1, 2-3. The TAC identifies the two officers as Cintron and Fraterrigo; the badge number given in the pro se complaints belonged to Cintron. Compare TAC ¶¶ 5-6, with Compl. 1.

         B. Facts

         For purposes of deciding the Rule 12(b)(6) motion that is before the court, the court treats all the well-pleaded allegations in the TAC as true and draws all reasonable inferences in plaintiffs' favor. See, e.g., Manistee Apartments, LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016). To provide context the court begins by briefly summarizing where Romanski stood on July 22, 2014.

         In December 2013, Casimir and Dumas initiated the Romanski litigation by filing a pro se complaint. Romanski, ECF No. 1, 7; TAC Ex. B. They asserted claims under §§ 1983 and 1985 for conspiracy, false arrest, and unlawful seizure against the City and three Chicago police officers assigned to Area 19, Stephen Romanski (“Romanski”), Martin Philbin, and Michael Stevens, arising out of Casimir's alleged arrest on November 14, 2013. See Compl. ¶¶ 2-3, 5, Romanski, ECF No. 1. The assigned magistrate judge was in the process of setting a date for a settlement conference in July 2014. See Minute Entry, Romanski, ECF No. 34 (N.D. Ill. June 17, 2014) (setting next hearing for July 29, 2014). Romanski settled later in 2014. Stip. Dismissal 1, Romanski, ECF No. 47 (N.D. Ill. Oct. 21, 2014).

         According to the TAC, Casimir and Dumas were married “[a]t all times relevant.” TAC ¶ 12. Both are African American, and both were about 67 years old on July 22, 2014. TAC ¶¶ 11, 13.

         On July 22, 2014, Casimir and Dumas were pulling suitcases through the 3300 block of North Clark Street, an area that is “predominantly white.” TAC ¶¶ 14, 15. There had been a fire, and Casimir's suitcase contained clothing, groceries, and personal papers. TAC ¶ 18. A wheel on Casimir's suitcase broke, causing a can of beer in the suitcase to break and soak the suitcase's contents. TAC ¶¶ 16-17. So the two stopped at a bus stop, and Casimir began throwing some items in the trash and moving others to Dumas' suitcase. See TAC ¶¶ 19-20.

         While Casimir was occupied with the suitcases, the officer defendants pulled up in an unmarked police car. TAC ¶ 22. Cintron and Fraterrigo, like Romanski, were assigned to Unit 4 of Chicago Police District 19 on July 22, 2014. See TAC ¶¶ 48-50; TAC Ex. C at 127, 128, 130. The other two officers named as defendants in Romanski also worked in Unit 19 that night. See TAC ¶¶ 51-52; TAC Ex. C at 106, 118.

         Cintron and Fraterrigo jumped out of their unmarked car and yelled (even though Casimir and Dumas weren't drinking or holding a beer), “You drinking? I see a beer on the ground. Don't you lie to me, because I can take both of you down.” TAC ¶¶ 23-28. Casimir and Dumas told the officers that they weren't drinking. TAC ¶¶ 29-30. The officers “indicated that they did not believe Plaintiffs, ” TAC ¶ 31, and searched Casimir's pockets and demanded to see Casimir and Dumas' identification, see TAC ¶ ¶ 32-33. Both eventually produced identification, which Cintron and Fraterrigo checked. TAC ¶¶ 35, 37-38. One of the officer defendants returned and told plaintiffs they were free to go. TAC ¶ 39. Neither officer issued a ticket or “indicated” that one would be issued. TAC ¶¶ 40, 41.

         Nevertheless, administrative default judgments issued on September 11, 2014, against Casimir and Dumas requiring each to pay a $500 fine and $40 in costs for drinking in a public way on July 22, 2014. TAC ¶ 54; Id. Ex. D & E. Casimir and Dumas received notices of the default orders a week later on September 18, 2014; it was the first notice of the tickets they received. TAC ¶¶ 54-56. They moved to set aside the default judgments, see TAC ¶ 57, and a hearing for Casimir was held on October 3, 2014, at which he testified that his signature on a ticket was forged, see TAC ΒΆΒΆ57-60. The administrative law judge presiding declined to rule on whether ...


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