United States District Court, N.D. Illinois, Eastern Division
KERMITT LATTIMORE and CAROL G. HUTTON-LATTIMORE, Plaintiffs,
VILLAGE OF STREAMWOOD, et al., Defendants.
ST. EVE UNITED STATES DISTRICT COURT JUDGE.
Court grants in part with prejudice, grants in part without
prejudice, and denies Defendants' motion to dismiss
brought under Federal Rule of Civil Procedure 12(b)(6). .
The Court grants Plaintiffs leave to file an Amended
Complaint in accordance with this ruling by no later than
June 8, 2018. Status hearing set for May 31, 2018 is stricken
and reset to June 13, 2018 at 8:30 a.m.
November 30, 2017, Plaintiffs Kermit Lattimore and Carol G.
Hutton-Lattimore filed the present seven-count Complaint
against Defendant Village of Streamwood
(“Streamwood”) and certain Streamwood police
officers bringing constitutional claims, along with state law
claims, pursuant to the Court's supplemental
jurisdiction. See 28 U.S.C. §§ 1331,
1367(a). Before the Court is Defendants' Rule 12(b)(6)
motion to dismiss. For the following reasons, the Court
grants Defendants' motion to dismiss Plaintiffs'
state law claims as alleged in Counts V and VI of the
Complaint with prejudice. The Court denies Defendants'
motion to dismiss Plaintiffs' Fourth Amendment federal
malicious prosecution claim as alleged in Count II. Last, the
Court grants in part without prejudice the remainder of
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) challenges the viability of a complaint by arguing
that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 736 (7th Cir. 2014); see also
Hill v. Serv. Emp. Int'l Union, 850 F.3d 861, 863
(7th Cir. 2017). Under Rule 8(a)(2), a complaint must include
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Pursuant to the federal pleading standards, a
plaintiff's “factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at
determining the sufficiency of a complaint under the
plausibility standard, courts accept all well-pleaded facts
as true and draw reasonable inferences in the plaintiff's
favor. See Forgue v. City of Chicago, 873 F.3d 962,
966 (7th Cir. 2017). Moreover, a “limitations defense
is not often resolved on a Rule 12(b)(6) motion because
‘a complaint need not anticipate and overcome
affirmative defenses, such as the statute of
limitations.'” Amin Ijbara Equity Corp. v.
Village of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017)
(citation omitted). Nevertheless, “dismissal at this
early stage is appropriate when the complaint alleges facts
sufficient to establish that the suit is indeed tardy.”
Id.; see also Collins v. Vill. of Palatine,
Ill., 875 F.3d 839, 842 (7th Cir. 2017) (“Although
the statute of limitations is an affirmative defense,
dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is appropriate if the complaint contains everything
necessary to establish that the claim is untimely.”).
Kermit Lattimore (“Lattimore”) and Maribeth
Rivera (“Rivera”) were married and began living
together at their Streamwood residence
(“Residence”), which was a pre-marital asset
owned by Lattimore. (R. 1, Compl. ¶ 1.) Plaintiff Carol
G. Hutton-Lattimore (“Hutton-Lattimore”) is
Lattimore's daughter, who lived at the Residence.
(Id. ¶ 2.) Eventually Lattimore's and
Rivera's marriage became troubled resulting in Lattimore
filing a petition for dissolution of the union. (Id.
January 26, 2015, Lattimore returned to the Residence with
his nephew Steven and Hutton-Lattimore. (Id. ¶
4.) Plaintiffs allege that at that time Rivera had locked
Lattimore out of the Residence. (Id. ¶ 5.) Once
they gained entry into the Residence, Rivera's son,
Michael, assaulted Lattimore with a knife. (Id.
¶¶ 6, 7.) Thereafter, Lattimore dialed 911 to
request police assistance. (Id. ¶ 9.) Defendant
Officers Steinmetz and Van Der Linden responded to the 911
call, knowing that Lattimore had made the call and was
seeking assistance. (Id. ¶¶ 10, 11.)
Plaintiffs further allege that Defendant Officers Steinmetz
and Van Der Linden had heard the recorded 911 audio of
Michael threatening Lattimore. (Id. ¶ 12.)
thereafter, Defendant Officers Stoiber, McPherson, and Klein
arrived to assist Defendant Officers Steinmetz and Van Der
Linden at the Residence. (Id. ¶ 13.) Defendant
Officers Steinmetz, Van Der Linden, Stoiber, McPherson, and
Klein (the “Responding Officers”) entered the
Residence and interviewed the occupants therein.
(Id. ¶ 14.) According to Plaintiffs, the
Responding Officers knew the occupants at the Residence and
had no authority to remove Lattimore, his nephew Steven, or
Hutton-Lattimore from the Residence. (Id. ¶
15.) As to Hutton-Lattimore, the Responding Officers found
her in the kitchen on January 26, 2015, and also knew that at
that time knew she had not committed a crime and that she was
not a threat to the occupants of the Residence. (Id.
¶¶ 16-18.) Nonetheless, on January 28, 2015,
Streamwood police officers arrested Hutton-Lattimore and
charged her with home invasion. (Id. ¶ 31.)
Lattimore, once the Responding Officers arrived on January
26, 2015, they seized Lattimore's lawfully owned gun and
escorted him out of the Residence. (Id. ¶¶
20-22.) Once outside the Residence, the Responding Officers
searched Lattimore's car to recover his wallet and then
towed the vehicle. (Id. ¶¶ 23-26.) The
Responding Officers thereafter arrested Lattimore and charged
him with unlawful use/possession of a weapon and home
invasion despite Lattimore's valid firearm credentials
and documents. (Id. ¶¶ 27, 28.) Plaintiffs
further allege that Defendant Officer Klein submitted a
complaint for a search warrant to search Lattimore's
property that stated Lattimore's concealed carry license
and FOID cards had been revoked - although they were in fact
valid. (Id. ¶¶ 29, 33.) Moreover,
Plaintiffs allege that Defendant Officers Gallagher, Barnes,
and Zeigler assisted in the arrest, as well as investigated
the home invasion charges against Lattimore and
Hutton-Lattimore. (Id. ¶ 32.) On December 2,
2015, after a jury trial, the jury acquitted Lattimore of the
home invasion charges. (Id. ¶ 34.)
Lattimore's unlawful use of a weapon charges had been
dropped before trial. (Id. ¶ 36.) The charges
against Hutton-Lattimore were dropped on January 6, 2016.
(Id. ¶ 35.)
on these allegations, Plaintiffs bring the following claims:
(1) a Fourth Amendment false arrest claim (Count I); (2) a
Fourth Amendment malicious prosecution claim (Count II); (3)
a Fourteenth Amendment due process fabricated evidence claim
(Count III); (4) a constitutional conspiracy claim under 42
U.S.C. § 1983 (Count IV); (5) an Illinois common law
malicious prosecution claim (Count V); (6) an Illinois common