United States District Court, N.D. Illinois, Eastern Division
JEROME J. CASIMIR and BETTY J. DUMAS, Plaintiffs,
CITY OF CHICAGO et al., Defendants.
MEMORANDUM OPINION AND ORDER
B. GOTTSCHALL UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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.
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
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
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,
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).
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.
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
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.
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.
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 ¶¶57-60. The administrative law
judge presiding declined to rule on whether ...