United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
H. Lefkow U.S. District Judge.
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
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.
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.
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.
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: 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.
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.
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.
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
Statute of Limitations
preliminary matter, defendants argue that Pedrote's
claims are barred because they fall outside the two-year
statute of limitations period. Pedrote counters that ...