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Pedrote-Salinas v. Johnson

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

May 22, 2018



          Joan H. Lefkow U.S. District Judge.

         Luis Vicente Pedrote-Salinas (Pedrote) has sued Chicago Police Superintendent Eddie Johnson and certain commanders and officers of the Chicago Police Department (CPD) for violation of his civil rights protected by 42 U.S.C. § 1983. Defendants have moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. 31.) For the reasons stated below, the defendants' motion to dismiss is granted.[1]


         Pedrote came to the United States from Mexico when he was five years old and has primarily resided with his family in Chicago since that time. During high school, Pedrote maintained good grades, was a member of the wrestling team, worked for his father on the weekends, and helped take care of his younger brother. After graduating from a Chicago public high school, he got a job working at a factory.

         Although he is not and has never been a member of a gang, in January 2011, Officers Fitzgerald and McLean (the Defendant Officers) placed Pedrote in a “gang database” maintained by the CPD and overseen by Commanders Kennedy and Nagode. Pedrote was placed in the database after the Defendant Officers arrested him in a primarily Latino neighborhood on the Southwest side of Chicago while out on a “gang suppression mission.” They observed an unopened can of beer in the cup holder of Pedrote's car, which was illegal for a minor to possess. In their police report, the Defendant Officers wrote that Pedrote self-admitted to being a Latin King gang member. Pedrote maintains that this information was fabricated. (In fact, he resides in rival gang Manic Latin Disciples' territory.) The charges of purchase/possession of liquor as a minor against Pedrote were dismissed, but neither the Defendant Officers nor any member of CPD informed Pedrote that his name had been put in the gang database. Even had he known, there was no means for him to challenge placement in the database. Pedrote maintains that the gang database is arbitrary, over-inclusive, and riddled with false information and that it disproportionately identifies African-American and Latino men as gang members.

         U.S. Immigration and Customs Enforcement (ICE) agents then raided Pedrote's home on August 11, 2011, as part of a nationwide initiative designed to target foreign-born members of violent street gangs, and took him into custody. The agents indicated in their report that they had reviewed files from CPD that documented Pedrote's alleged affiliation with the Latin Kings. Pedrote spent approximately six months in immigration detention centers until he was released on bond. Pedrote maintains that his case is not an isolated incident and that other undocumented immigrants in Chicago have been prioritized for deportation based on CPD's sharing of erroneous gang labels.

         After his release, Pedrote returned to Chicago where he worked at a Subway sandwich shop for three years and later in sales and marketing. During that time, Pedrote filed an application for Deferred Action for Childhood Arrivals (DACA). DACA allows certain undocumented individuals who entered the United States as minors to receive a renewable two-year deferred action from deportation. Pedrote maintains that he meets all criteria necessary to request DACA[3]: He came to the United States before the age of sixteen; he is under the age of 30; he has continuously resided in the United States since June 15, 2007; he graduated from high school; and he has not been convicted of any criminal offense nor does he otherwise pose a threat to national security or public safety. Pedrote submitted his application on December 15, 2014, but on October 29, 2015, U.S. Citizenship and Immigration Services (USCIS) denied the application, indicating only that Pedrote had not demonstrated that he warranted a favorable exercise of prosecutorial discretion and therefore USCIS would not defer action on his case.

         On February 18, 2016 Pedrote applied to CPD for a certification to be used with his petition for a U Visa. A U Visa is a nonimmigrant visa for victims of certain crimes who have been, or are likely to be, helpful to law enforcement in the investigation or prosecution of a crime. USCIS's decision to grant a U Visa petition is discretionary and it may consider any evidence that law enforcement and immigration authorities possess when determining whether to grant a U Visa. The petition for a U Visa must contain a “U Visa certification” from a certifying law enforcement agency confirming that the petitioner has been helpful or is likely to be helpful in the investigation or prosecution of a crime. Pedrote maintains that he is eligible for a U Visa based on an incident that happened while he was working at Subway. On June 9, 2012, a man entered the Subway with a semi-automatic pistol and stole money out of the cash register. Pedrote was fully cooperative with CPD in the investigation. On September 8, 2016, however, CPD declined to issue Pedrote a U Visa certification. CPD indicated that Pedrote was not a victim of the armed robbery but, rather, a witness, the victim being Subway. Given the denial of both his DACA application and U Visa certification, Pedrote now faces imminent deportation.

         In count I, Pedrote seeks injunctive relief against Superintendent Johnson for including him in its gang database without procedural protections and for sharing that information with ICE in violation of his due process rights. In count II, Pedrote seeks damages from Superintendent Eddie Johnson, Commander Christopher J. Kennedy, Commander Alfred Nagode, Officer Joseph S. Fitzgerald, and Officer K. M. McLean, for the same due process violation. In count III, Pedrote alleges that the Defendant Officers failed to intervene to protect Pedrote's rights. In count IV, Pedrote alleges a Monell claim against the City for their policy of allegedly maintaining an overinclusive gang database full of errors and sharing that information with immigration authorities without any procedural protections. In count V, Pedrote alleges that the City has unlawfully discriminated against black and Latino men, in violation of the Illinois Civil Rights Act (ICRA), 740 ILCS 23/5(a)(2). Finally, in count VI Pedrote alleges a state law claim for indemnification against the City.


         In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011); Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). The allegations in the complaint must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories; it is the facts that count. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); see also Johnson v. City of Shelby, --- U.S. ---, 135 S.Ct. 346, 346 (2014) (per curiam) (“Federal pleading rules call for a short and plain statement of the claim showing the pleader is entitled to relief; they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”).[4]


         I. Statute of Limitations

         As a preliminary matter, defendants argue that Pedrote's claims are barred because they fall outside the two-year statute of limitations period. Pedrote counters that ...

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