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Gonzalez v. City of Chicago

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

March 30, 2018

CITY OF CHICAGO, et al., Defendants.


          Andrea R. Wood, United States District Judge.

         Plaintiff Richard Gonzalez is a police officer employed by Defendant City of Chicago. Gonzalez alleges that he was unlawfully suspended from his job for 30-days following an inadequate complaint and review process. Gonzalez's suspension was eventually reversed by the Circuit Court of Cook County. However, Gonzalez alleges that after the Circuit Court's decision, he was subjected to a campaign of retaliation carried out by various City of Chicago officials, police department superintendents and officers, and the Fraternal Order of Police, Chicago Lodge No. 7 (“FOP”). As a result, Gonzalez has filed this lawsuit, which includes 11 counts and 16 Defendants. Presently before the Court are four separate motions to dismiss Gonzalez's amended complaint filed by the various Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 20, 25, 32, 39.) Following the briefing of the four motions, Gonzalez filed a motion for leave to amend his complaint and add Defendants. (Dkt. No. 73.) For the reasons explained below, the Court grants the motions to dismiss but also grants Gonzalez's motion to amend his complaint.


         The origins of this case go back almost a decade. At that time, and at all times pertinent to the amended complaint, Gonzalez was a police officer employed by the City of Chicago. (Am. Compl. ¶ 7, Dkt. No. 6.) Gonzalez's problems began on December 21, 2008, when another Chicago police officer accidentally discharged mace at a restaurant. (Id. ¶ 27.) According to Gonzalez, he was in the bathroom of the restaurant at the time the mace was discharged. (Id.) Nonetheless, the City of Chicago accused Gonzalez of discharging the mace and initiated a complaint log against him related to the incident. (Id. ¶ 28.)[2] Thereafter, the Independent Police Review Authority (“IPRA”) assumed responsibility for investigating the matter. (Id. ¶ 29.)

         Two years later, on March 11, 2011, IPRA recommended that Gonzalez receive a 30-day suspension based on its investigation of the complaint. (Id. ¶ 29.) Following the close of IPRA's investigation, the City of Chicago Police Board (“Police Board”) took over the matter. On November 21, 2013, the Police Board conducted a closed hearing regarding the mace incident. (Id. ¶ 30.) Eventually, the Police Board issued a “Findings and Decisions” document, signed by Defendant Max Caproni, Executive Director of the Police Board, sustaining the 30-day suspension and all alleged rule violations by Gonzalez. (Id. ¶ 30.) The Police Board published its findings on the City of Chicago website. (Id. ¶ 31.) Then, on December 18, 2013, an online news website,, picked up the story and published an article presenting the Board's findings against Gonzalez. (Id. ¶ 32.) Gonzalez, however, did not receive a copy of the Police Board's findings until December 31, 2013. (Id. ¶ 34.)

         Over five years after the mace incident, on January 16, 2014, Gonzalez was personally served with a 30-day suspension notification ordered by Defendant Superintendent Garry McCarthy. (Id. ¶ 35.) Gonzalez sought and received assistance from FOP in challenging the suspension. (Id. ¶ 39.) FOP drafted and filed a petition for administrative review of Gonzalez's 30-day suspension. (Id.) But in reviewing FOP's petition, Gonzalez noticed an erroneous statement regarding the date on which Superintendent McCarthy ordered the suspension. (Id. ¶ 39.) Gonzalez alerted FOP to the erroneous statement but it refused to amend the petition. (Id. ¶ 41.) Because of this disagreement with FOP, Gonzalez decided to retain private counsel, and an amended petition was filed on February 14, 2014. (Id. ¶ 42.) Gonzalez named the Police Board and Superintendent McCarthy as defendants in the amended petition. (City Defs.'s Mot. to Dismiss, Ex. 2, Dkt. No. 26-1.) In response, Defendants attempted to dismiss the administrative proceedings based on what Gonzalez characterizes as erroneous and misleading arguments. (Am. Compl. ¶ 51, Dkt. No. 6.) Gonzalez also claims that, throughout the course of the state court litigation, Defendants committed various egregious and malicious acts, including submitting perjured testimony and backdated documents, intentionally filing an incomplete record, and misrepresenting the facts. (Id. ¶ 53.)

         The Circuit Court issued its ruling on November 10, 2015. (Id. ¶ 54.) The Circuit Court held that because Defendants failed to fully comply with the required procedures for instituting a 30-day suspension, the suspension must be reversed as a violation of Gonzalez's due process rights. (Id. ¶ 56.) Neither side appealed the Circuit Court's findings. (Id. ¶ 57.) After the ruling, Defendants sent Gonzalez a settlement agreement letter. (Id. ¶ 58.) The settlement agreement proposed to resolve a grievance filed by Gonzalez and reduce Gonzalez's 30-day suspension to 15 days, while also removing certain violations from his record. (Id. ¶ 61.) The settlement agreement was entered into between FOP and the City of Chicago Police Department. (Id. ¶ 62.) According to Gonzalez, however, the grievance cited in the settlement letter had been withdrawn on October 23, 2015 and only resurrected after the Circuit Court's decision reversing Gonzalez's suspension. (Id. ¶ 60.) As a result, Gonzalez considers the settlement fraudulent.

         Beyond the alleged constitutional and other legal violations directly related to the 30-day suspension, Gonzalez also claims to have been subjected to a campaign of retaliation due to his decision to challenge the Police Board's punishment. The first alleged instance of retaliation actually occurred before the Circuit Court issued its decision when, on May 13, 2015, Gonzalez met with Sergeant Don DeVito of the Internal Affairs Division at police headquarters. (Id. ¶ 63.) The amended complaint does not detail what exactly was discussed during the meeting, but at some point DeVito became angry and told Gonzalez, “I know where you're going with this” and threatened “You're Done.” (Id.) DeVito then had Gonzalez escorted out of the headquarters. (Id.) The following day, Gonzalez emailed DeVito about the incident. (Id. ¶ 63.) DeVito never responded to this email. (Id.)

         Six months later, on the morning of November 15, 2015, just five days after the Circuit Court reversed Gonzalez's suspension, Gonzalez again went to police headquarters, this time to meet with a case worker in the medical section. (Id. ¶ 78.) Gonzalez's aunt accompanied him on the visit. (Id. ¶ 78.) While he was waiting for his appointment, Gonzalez overheard the medical section worker talking over the phone and telling an unknown person, “He is here. You can see him after he is done.” (Id. ¶ 79.) Shortly afterwards, Sergeant DeVito and another tall male arrived. DeVito and the other unknown male positioned themselves such that they were blocking Gonzalez's exit. (Id. ¶ 80.) In response to DeVito's presence, Gonzalez became fearful for himself and his aunt, and began to experience shortness of breath. (Id. ¶ 82.) Gonzalez attempted to exit the waiting room, but DeVito and the other male continued to block the doorway. (Id. ¶ 83.) DeVito told Gonzalez, “no, no, no” and grabbed him by the lower arm. (Id.) Although Gonzalez was eventually able to exit the room, DeVito followed him into the main lobby where Gonzalez heard someone say “I will just lock you up.” (Id. ¶ 84.)

         Sergeant DeVito was not the only officer who is alleged to have targeted Gonzalez for pushing back against the Police Board. Gonzalez also claims to have been attacked by Sergeant Andres Zayas on December 14, 2015 while attending a medical appointment at Rush Hospital. (Id. ¶ 91.) On that day, Gonzalez noticed an unknown man staring at him while he checked in with hospital desk personnel. The man not only stared at Gonzalez, but he also blocked the hospital exit. (Id. ¶ 92.) The man told Gonzalez that he was Sergeant Zayas, and Gonzalez immediately starting experiencing heart palpitations, shortness of breath, and anxiety. (Id. ¶¶ 92, 93.) Because Gonzalez felt threatened and feared for his life, he attempted to walk around Zayas and leave the area. (Id. ¶ 93.) Zayas raised his hand to make contact with Gonzalez and, in response, Gonzalez screamed, “stop threatening me.” (Id. ¶ 93.) Afterwards, Gonzalez was able to exit the building. (Id.) Gonzalez immediately went to the emergency room at Northwestern Memorial Hospital, where he was informed that due to his mental state, the hospital could not release him without prior approval from his psychologist. (Id. ¶ 94.) After contacting his psychologist, Gonzalez was released. (Id. ¶ 95.)

         In addition to these specific instances of alleged retaliation, Gonzalez also claims to have been harassed by the police department more generally. Indeed, Gonzalez contends that certain members of the Chicago Police Department continue to harass him, including by making late-night visits to his home on January 8, 2016 and February 18, 2016. (Id. ¶ 97.) Gonzalez has also been harassed orally and in writing. (Id. ¶ 98.) Finally, on January 1, 2016, the City of Chicago stopped paying Gonzalez. (Id. ¶ 96.)

         In the midst of this retaliation campaign, Gonzalez sought medical attention for the emotional distress caused by the alleged harassment. Gonzalez started seeing a psychologist after a medical case worker noticed his distressed mental state and recommended he seek help. (Id. ¶¶ 66, 67.) After the medical case worker suggested mental health treatment, Gonzalez called his primary care doctor regarding his stress and anxiety, and the doctor prescribed medication to treat those symptoms. (Id. ¶ 68.) On August 20, 2015, Gonzalez began therapy with a psychologist, who Gonzalez continues to see. (Id. ¶ 69.) Pursuant to a recommendation from his psychologist, Gonzalez attended a psychiatric evaluation on January 4, 2016. (Id. ¶ 99.) The psychiatrist prescribed Gonzalez additional medication, which he continues to take. (Id. ¶ 100.)

         At some point, Gonzalez was fired from his position as police officer. It is unclear from the amended complaint how exactly Gonzalez was fired but, on April 14, 2016, Gonzalez turned in his badge and identification card to the Chicago Police Department. (Id. ¶ 101.) This lawsuit followed on August 10, 2016.

         As mentioned above, Gonzalez's amended complaint (which is currently the operative complaint) includes claims against 16 different Defendants. Those Defendants have organized themselves into four groups, each represented by separate counsel and pursuing its own motion to dismiss. Those four groups are as follows: (1) the City of Chicago, Caproni, and IPRA Investigator Lakenya White (together, “City Defendants”);[3] (2) Superintendent McCarthy, Former Interim Superintendent John Escalante, Superintendent Eddie Johnson, Chief Juan Rivera, Chief Eugene Williams, Lieutenant Jacqueline Ellison, and Civilian Director of Human Resources Division Donald O'Neill (together, “Officer Defendants”);[4] (3) FOP and First Vice President of the FOP Ray Casiano (together, “FOP Defendants”); and (4) Sergeant DeVito and Sergeant Zayas.


         I. Res Judicata

         Defendants first argue that the claims asserted by Gonzalez are barred by the doctrine of res judicata. Under that doctrine, “when a final judgment has been entered on the merits of a case, it is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Highway J Citizens Grp. v. U.S. Dep't of Transp., 456 F.3d 734, 741 (7th Cir. 2006) (quoting Nevada v. United States, 463 U.S. 110, 129-30 (1983)). Although generally “it is incorrect to grant a motion to dismiss under Rule 12(b)(6) on the basis of an affirmative defense” such as res judicata, see McCready v. eBay, Inc., 453 F.3d 882, 892 n.2 (7th Cir. 2006), an exception to this rule exists when a plaintiff “admit[s] all the ingredients of an impenetrable defense” in his complaint and thereby pleads himself out of court. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).

         Because an Illinois state court rendered the order at issue here, this Court applies Illinois law to determine whether res judicata bars Gonzalez's claims. See Long v. Shorebank Dev. Corp., 182 F.3d 548, 560 (7th Cir. 1999). Under Illinois law, the doctrine of res judicata applies when there is “(1) a final judgment on the merits by a court of competent jurisdiction; (2) an identity of the causes of action; and (3) an identity of parties or their privies.” See Perkins v. Cty. of Cook, No. 13-cv-02430, 2014 WL 4783015, at *3 (N.D. Ill. Sept. 24, 2014); see also Rockford Mut. Ins. Co. v. Amerisure Ins. Co. and Michigan Mut. Ins. Co., 925 F.2d 193, 195 (7th Cir. 1991). Here, only the second two elements are at issue. In addition, the party against whom res judicata is invoked must have had a “full and fair” opportunity to litigate the claim in the prior suit. Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir. 2007).

         A. Same Causes of Action

         To determine whether two causes of action are the same, Illinois courts apply a “transactional test” under which “separate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief.” River Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 893 (Ill. 1998). The test is “pragmatic” as it focuses on the facts underlying the different claims while disregarding “the number of substantive theories, the variant forms of relief flowing from those theories, and the variations in evidence needed to support the theories.” Garcia v. Vill. of Mount Prospect, 360 F.3d 630, 637 (7th Cir. 2004). In other words, Illinois courts do not “require the same evidence or an identical theory of relief” in order for the separate claims to be considered the same cause of action. Cooney v. Rossiter, 986 N.E.2d 618, 622 (Ill. 2012).

         The issue here is whether Gonzalez's state and federal claims arise from the same group of operative facts as his Circuit Court case. In his petition before the Circuit Court, Gonzalez challenged the validity of the Police Board decision, alleging that it was against the manifest weight of the evidence, violated his due process rights, and was otherwise capricious and unreasonable. In the Circuit Court proceeding, Gonzalez solely sought review and reversal of the Police Board's suspension decision. Here, in contrast, Gonzalez brings federal claims pursuant to 42 U.S.C. § 1983, specifically alleging that the suspension decision violated his constitutional due process rights and accusing Defendants of conspiracy. Those are the only federal claims Gonzalez asserts in his amended complaint-Gonzalez's remaining claims arise under state law.

         While Gonzalez raises claims in this federal case that were not raised before the Circuit Court, both the administrative appeal before the Circuit Court and the instant lawsuit question the validity of the Police Board's suspension decision. Furthermore, Gonzalez's claims related to the 30-day suspension that are raised for the first time before this Court arise from the same group of facts as his previous claims-namely, the process leading up to his ...

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