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Alcorn v. City of Chicago

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

July 27, 2018

LISA ALCORN, as Plenary Guardian of the Estate and Person of TYLER LUMAR, Plaintiff,
v.
THE CITY OF CHICAGO, et. al. Defendants.

          MEMORANDUM OPINION AND ORDER

          HON VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE

         Plaintiff Lisa Alcorn, as Plenary Guardian of the Estate and Person of Tyler Lumar, sued the City of Chicago, the Chicago Police Department (CPD), CPD Chief of the Bureau of Patrol Wayne Gulliford in his official capacity, CPD Lieutenant Kevin Hannigan in his official capacity, and several officers and employees of the Chicago Police Department ("Individual CPD Defendants")[1] in their individual and official capacities (collectively "City Defendants") and Cook County, Cook County Sheriff Thomas Dart, Executive Director of Cook County Department of Corrections Dr. Nneka Jones Tapia (Dr. Jones) in her official capacity, and several officers and employees of the Cook County Sheriffs Office ("Individual County Defendants")[2] in their individual and official capacities (collectively "County Defendants"). (Dkt. 69). Plaintiff brings several claims under 18 U.S.C. § 1983 alleging violations of Tyler Lumar's constitutional rights during a series of events occurring over a two-day period related to his arrests and detentions by CPD and the Cook County Jail and eventual attempted suicide in the CPD lockup. (Dkt. 69). The Individual CPD Defendants, the City of Chicago, and the County Defendants filed separate Motions to Dismiss certain claims in Plaintiffs Amended Complaint. (Dkts. 87, 88, 92). The Motions to Dismiss are granted in part and denied in part for the following reasons.

         BACKGROUND

         The facts set forth in Plaintiffs Amended Complaint are accepted as true for the purpose of reviewing Defendants' Motions to Dismiss. Heyde v. Pittenger, 633 F.3d 512, 516 (7th Cir. 2011). The Court also considers the General Administrative Order No. 2015-06 ("the Order") attached to the parties' pleadings. Generally, matters outside the pleadings may not be considered on a motion to dismiss. See Fed. R. Civ. P. 12(b). However, the Court can examine concededly authentic documents attached to a party's motion to dismiss if the documents are referred to in the plaintiffs complaint and are central to his claim. See Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 718 (7th Cir. 2003); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993). GAO 2015-06 is central to Plaintiffs Complaint because Count II is based entirely on the alleged selective enforcement of the Order at the time Lumar was arrested. Therefore, the Court takes judicial notice of the fact that Chief Judge Evans issued GAO 2015-06 on June 17, 2015 and the Order states what it does. (See Dkt. 87-1). Plaintiff attaches a CPD General Order, a CPD Special Order, and two police reports to pleadings in response to the Motions to Dismiss. (See Dkts. 101, 102). The Court will not consider them as they are not referenced in Plaintiffs Complaint.

         I. Arrest and Detention on Out-of-County Traffic Warrant

         At approximately 3:00 p.m. on August 18, 2016, Chicago Police Officers Daniel Warren and Carlos Vega responded to a call at Madison Family Health Center after receiving a complaint from certain medical personnel there that Tyler Lumar was yelling and refusing to leave the medical grounds. (Dkt. 69 at ¶ 32).[3] When the Officers arrived, the medical staff asked the Officers to issue a verbal notice informing Lumar that he was banned from the property but advised that they did not wish to pursue criminal charges. (Id. at ¶¶ 33-34). Accordingly, at approximately 3:15 p.m., Officers Warren and Vega issued the verbal warning. (Id. at ¶ 35). No. charges were brought and Lumar left the Health Center and walked peacefully down the street. (Id).

         Approximately 35 minutes later at 3:50 p.m., Officers Warren and Vega stopped Lumar as he was walking down the street and arrested him on a traffic warrant for his arrest issued by Lee County. (Id. at ¶ 36). Officers Warren and Vega searched Lumar and found that he was not in possession of any contraband or narcotics and did not appear to be under the influence of drugs or alcohol. (Id. at ¶ 37). Lumar informed the Officers that the information was incorrect and that he had no outstanding traffic warrant but they proceeded to transport him to the 11th District Station. (Id. at ¶¶ 38-39). Upon arrival, he was searched by Officer Corrina Esteban who found again that he was not in possession of any narcotics and did not appear to be under the influence of any drugs or alcohol. (Id. at ¶ 40).

         Detention Aide Kimoni Peals and other officers at the 11th District Station then booked and processed Lumar. (Id. at ¶ 41). The booking officers also searched Lumar, finding only $130.00 and a necklace on his person and, once again, that he was not in possession of any narcotics and did not appear to be under the influence of drugs or alcohol. (Id. at ¶¶ 41 -42). During booking, Lumar informed Officer Peals and the other officers that he was taking prescription medication for asthma. (Id. at ¶ 42). Finally, Officer Conner took Lumar's mugshot and searched him, finding also that he was not in possession of any narcotics or under the influence of drugs or alcohol. (Id. at ¶ 43).

         Lumar was received in the 11th District lockup at around 4:26 p.m. that day. (Id. at ¶ 44). At 4:43 p.m., Officer Vega or some other officer contacted Lee County through the Law Enforcement Agencies Data System (LEADS) and at 4:48 p.m., an officer from Lee County responded to inform CPD that the warrant was valid and had been issued on June 9, 2016 for failure to pay a fine after Lumar pleaded guilty on May 15, 2015 to driving on a suspended license. (Id. at ¶¶ 45-46, 49). Lee County advised CPD that Lumar could pay $50.00 (10% of $500.00) to bond himself out and, if he were unable to pay the $50.00, that CPD should place a hold on him so that Lee County could pick him up and extradite him. (Id. at ¶ 46).

         The CPD Officers failed to advise Lumar that he could bond himself out by paying $50.00. (Id. at ¶ 47). Instead, they reported "Bond Information Not Available" on his arrest report, charged him with a "Class Z" (nonbondable) offense under 725 ILCS 5.01/110-3, Issuance of Warrant, Class Z, even though they knew the traffic warrant arose out of a Class A Misdemeanor bondable offense, and issued a hold for him under #Z14221. (Id. at ¶¶ 47-48). District Commander James Jones and Station Supervisors Sergeant Alan Lasch and Sergeant Kevin Geyer approved the issuance of the Z charge and the concealment of the fact that Lumar could have posted bail for $50.00 and leave the 11th District station. (Id. at ¶ 95). Lumar made several phone calls to his mother Lisa Alcorn and fiance Casey Tencate on August 18, 2016. (Id. at ¶ 90). Had he known he could have posted bail for $50.00, he would have used the money on him to do so or asked his mother or fiance to post that amount. (Id. at ¶¶ 89-90).

         According to the Complaint, as part of his May 2015 guilty plea in Lee County, Lumar agreed to pay $673.00 in fines and court costs in monthly installment payments of $25.00 due on the first of each month and Lumar timely made these payments from May 2015 through May 2016. (Id. at ¶ 51). Lumar claims that Lee County issued the traffic warrant on June 3, 2016, after he made his June 2016 payment a few days late. (Id.). Lumar made the July 2016 and August 2016 payments on time and at the time of his arrest on August 18, 2016, the last and final payment was not due until September 1, 2016. (Id.). Plaintiff alleges that at some point, CPD Officers including Officers Warren, Vega and Esteban spoke with his fiance Tencate, who informed them that Lumar had made the outstanding June 2016 payment which served as the basis of the Lee County warrant. (Id. at ¶ 82).

         Before Lumar's arrest, on June 17, 2015, Chief Judge Evans of the Circuit Court of Cook County issued General Administrative Order No. 2015-06 Procedures for Arrests on Illinois Intrastate Warrants Issued Outside of Cook County. (Id. at ¶ 109). GAO No. 2015-06 required that any defendant who, like Lumar, is taken into custody by an arresting agency located within Cook County on an arrest warrant issued by an Illinois state court outside of Cook County, "shall be required to appear in bond court." (Id. at ¶ 110; Dkt. 87-1). Plaintiff alleges CPD selectively enforced this policy only against non-white arrestees like Lumar and allowed similarly situated white arrestees who were able to bond themselves out instead directly from the CPD lockup. (Dkt. 69 at ¶¶ 109-11, 113).

         After being told he could not bail himself out, Lumar became extremely agitated and anxious and advised CPD Officers that he needed medical treatment. (Id. at ¶ 204). At approximately 11:30 p.m., Lumar had an emergent asthma attack and CPD Officers including Officer Walter Delgado transported him to the Mount Sinai Hospital emergency room for treatment. (Id. at ¶ 51). Lumar was discharged from the emergency room the following morning on August 19, 2016 at approximately 6:30 a.m., transported back to the 11th District station by Officer Walter Delgado and other officers and received at the station by Officer John Granat. (Id. at ¶¶ 53-54). Officers searched Lumar before he was transported to the hospital, before he was transported back to the station and upon receipt at the station and, each time, did not find any narcotics on him. (Id. at ¶¶ 52, 54-55).

         II. Arrest and Detention on Possession of Narcotics

         At approximately 8:40 a.m. that same morning, CPD Officers Peter Vinson and Dietrice Ellens-Alexander and other Central Prisoner Transport personnel transported Lumar to the Cook County Jail and upon arrival at the Jail placed Lumar in Bullpen 23, a group lockup with 25 other pretrial detainees. (Id. at ¶¶ 56-57). Before transporting him, the Officers searched Lumar and did not find any narcotics on his person. (Id. at ¶ 56). In Bullpen 23, the pretrial detainees including Lumar were seated together on a bench. (Id. at ¶ 57). At some point, Cook County Correctional Officers T. Wlodarski, Crawford, Leon and Garmon conducted a search of the pretrial detainees in Bullpen 23, during which an unknown African American male sitting next to Lumar removed a package from his shoe and dropped it behind the bench that he and Lumar were seated on. (Id. at ¶¶ 57-78). Correctional Officer Wlodarski recovered the package, which was later determined to contain narcotics in the form of 12 white rocks. (Id. at ¶ 59). Correctional Officer Wlodarski then pulled Lumar out of Bullpen 23 and, thereafter, Correctional Officers Wlodarski and Crawford restrained Lumar outside of the bullpen while CPD Officer Vinson and other CPD officers handcuffed and arrested Lumar. (Id. at ¶¶ 59-60). Lumar told the Officers that the narcotics were not his and were dropped by another detainee. (Id. at ¶ 145).

         The Cook County Jail maintains video footage of the bullpen lockup areas and video surveillance of Bullpen 23 shows that the detainee sitting next to Lumar dropped the narcotics on the floor immediately before Officer Wlodarski discovered it. (Id. at ¶ 146). Officer Wlodarski never reviewed the video. (Id.). In the Incident Report, Officer Wlodarski falsely claimed he found the narcotics on Lumar and falsely indicated that the incident was not captured on video surveillance. (Id. at ¶¶ 61, 151). Officer Wlodarski turned the narcotics over to Cook County Department of Corrections Lieutenant Angela Lewis.

         At approximately 9:25 a.m., CPD Officers Vinson and Alexander and others transported Lumar and the narcotics from the Cook County Jail back to the 11th District station lockup. (Id. at ¶ 62). Officer Wlodarski told the CPD Officers that he found the narcotics on Lumar's person while conducting a custodial search of the arrestees in Bullpen 23. (Id. at ¶ 182). Neither Officer Wlodarski nor anyone else from the Cook County Sheriffs Office provided the CPD Officers with any paperwork, including paperwork documenting that the narcotics were found on Lumar, when turning Lumar over. (Id. at ¶ 149). No. CPD Officer watched the video surveillance of the bullpen. (Id. at ¶ 147).

         III. Attempted Suicide in 11th District Lockup

         Lumar arrived at the 11th District station, which is approximately 2.5 miles or 10 minutes away from the Cook County Jail, sometime between 10:15 and 10:45 that morning. (Id. at ¶¶ 62, 150). Upon arrival, Officer Vinson turned the narcotics over to Station Supervisor Officer John Gartner and Detention Aide Jonathan Errum placed Lumar into cell #E2. (Id). Lumar told Errum that he was being wrongfully detained, that he had been framed for having the drugs and that he was suicidal and hopeless. (Id. at ¶ 227). CPD records provide conflicting information as to what time Lumar was placed in his cell; however, at least some CPD reports state that he was placed into cell #E2 at 11:04 a.m. (Id. at ¶ 62). When Lumar arrived, CPD Lieutenants Dany Helwink and Frederick Ulleweit were responsible for watch command of the inmates in the 11th District station lockup. (Id. at ¶¶ 63-64).

         Eric Spann, the inmate housed in cell #E1 next to Lumar, witnessed Detention Aide Errum place Lumar into cell #E2. (Id. at ¶¶ 65-66). More than ten minutes after Lumar was placed in cell #E2, Spann heard Lumar praying to God and asking for forgiveness. (Id. at ¶ 67). Several minutes after that, Spann heard loud banging noises on Lumar's cell; the officers in the station could hear the noises but none came to investigate. (Id. at ¶ 68). More than five minutes after the banging, Spann called for a guard because he needed some tissue. (Id. at ¶ 69). Detention Aide Charles Barry responded and, as he came down Cell Block E, discovered Lumar hanging from his cell. (Id. at ¶ 70). Barry cut Lumar down and called for assistance, and Officer Menoni performed CPR on Lumar. (Id. at ¶7l).

         Chicago Police Department Special Orders and policy require that lockup personnel complete a visual check of each arrestee every 15 minutes and create an Inspection Log which records the time of each inspection, a concise statement of conditions found, notable occurrences, actions taken, and the initials and employee identification number. (Id. at ¶¶ 246, 256). Plaintiffs allege that Barry falsified the watch log at the end of his shift by initialing next to each 15-minute interval for the hours of his shift indicating that he had visually checked on each inmate when in fact he had not. (Id. at ¶ 248).

         CPD reports state that Lumar was found at 11:15 a.m. (Id. at ¶ 71). Paramedics were dispatched to the station at 11:17 a.m., arrived at 11:44 a.m. and then transported Lumar to Mount Sinai Hospital. (Id. at ¶ 72). Lumar remained at Mount Sinai until September 11, 2016, when he was transferred to Kindred North for long term care. (Id. at ¶ 73). Lumar was subsequently transferred to Ballard Respiratory and Rehabilitation Center in Des Plaines, Illinois where he resides now. (Id.).

         On August 19, 2016, CPD Officer Joseph Trivoli contacted Lee County's Sheriffs Office and requested that they reissue a traffic warrant for Lumar, and the Lee County's Sheriffs Office refused. (Id. at ¶¶ 75-76). Neither the Chicago Police Department nor the County Sheriff s Office ever charged Lumar with possession of a controlled substance of for any other crime related to the narcotics recovered by Officer Wlodarski. (Id. at ¶¶ 77-78).

         LEGAL STANDARD

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). The factual allegations "must be enough to raise a right to relief above the speculative level." McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Twombly, 550 U.S. at 555). At the 12(b)(6) stage, the Court construes the complaint in the light most favorable to the nonmoving party, accepts all well-pleaded facts as true, and draws all inferences in his favor. Heyde, 633 F.3d at 516. However, "[l]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth." McCauley, 671 F.3d at 616 (citing Iqbal, 566 U.S. at 678).

         DISCUSSION

         Plaintiff s Amended Complaint alleges eight counts against the named Defendants. Counts I, V and VII allege claims against all City Defendants under 42 U.S.C. § 1983 for violations of Lumar's constitutional rights related to his first arrest and pretrial detention on the Lee County warrant, his second arrest and detention for possession of narcotics, and the conditions of his confinement in the 11th District station lockup, respectively. Counts II, VI, and VIII allege corresponding claims for municipal liability pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978) against the City regarding policies and practices Plaintiff claims were the moving force behind those violations of Lumar's constitutional rights.[4]

         Similarly, Count III alleges a claim against all County Defendants under 42 U.S.C. § 1983 for violations of Lumar's constitutional rights related to the second arrest and detention for possession of narcotics and Count IV alleges a corresponding Monell claim for municipal liability against all County Defendants regarding policies and practices Plaintiff claims were the moving force behind that violation of Lumar's constitutional rights.

         The Individual CPD Defendants moved to dismiss Counts I, V, and VII (Dkt. 87), the City moved to dismiss Counts I, II, V, VI, VII and VIII (Dkt. 99), and the Cook County Defendants collectively moved to dismiss Count IV (Dkt. 92).

         I. Counts I, V and VII against Individual CPD Defendants

         In Counts I, V and VII, Plaintiff alleges violations of Lumar's constitutional rights under 42 U.S.C. § 1983 against the City, the Chicago Police Department, Chief Gulliford and Lieutenant Hannigan in their official capacities, and all Individual CPD Defendants in their individual and official capacities. The Individual CPD Defendants moved to dismiss the claims in Counts I, V and VII against them in their individual capacities. The City separately moved to dismiss these claims against the City, the Chicago Police Department, and all other City Defendants in their official capacities.

         A. Count I § 1983 Claim for Unlawful Detention in Violation of the Fourth Amendment against the Individual CPD Defendants in their Individual Capacities

         In Count I, Plaintiff alleges that following Lumar's arrest on the Lee County warrant, the Individual CPD Defendants unlawfully detained Lumar without probable cause and based on fabricated evidence in violation of his rights under the Fourth Amendment. Specifically, Plaintiff alleges that following Lumar's initial arrest, Officers Warren, Vega and Esteban verified with Lee County that the traffic warrant arose out of a Class A Misdemeanor bondable offense and that Lumar could bail himself out by paying $50.00 and, therefore, had no probable cause to continue to detain Lumar and charge him with a nonbondable offense and did so only based on the falsified arrest report stating incorrectly "Bond Information Not Available." The Individual CPD Defendants argue that the Officers had probable cause to make the initial arrest of Lumar on the facially valid Lee County warrant and that Lumar's continued detention based on that arrest was lawful. They argue in the alternative that Officers Warren, Vega and Esteban are protected under qualified immunity.

         The Officers lawfully arrested Lumar on the basis of a facially valid arrest warrant issued by a Lee County court. "A police officer who receives a facially valid arrest warrant is ordinarily expected to act upon it, not to second-guess the court's decision to issue it." Brunson v. Murray, 843 F.3d 698, 709 (7th Cir. 2016) (dismissing false arrest claim where arrest was made on the basis of a valid arrest warrant). "The officer does not personally violate the Constitution by making the arrest the court has authorized." Id. There are two exceptions to this rule: "where a reasonable officer would have known that the evidence provided to support the warrant failed to establish probable cause," id. (citing Williamson v. Curran, 714 F.3d 432, 442 (7th Cir. 2013)), and where the officer "knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and [if] the false statements were necessary to the judicial officers' determinations that probable cause existed for the arrests." Id. (quoting Beauchamp v. City of Noblesville, 320 F.3d 733, 742-43 (7th Cir. 2003)). Neither exception applies here. Plaintiff alleges no facts suggesting that Officers Warren, Vega and Esteban were involved in any way in obtaining the Lee County warrant or had any knowledge of the evidence provided to support the out-of-county warrant. Officers Warren, Vega and Esteban had probable cause to arrest Lumar based on the facially valid warrant.

         Plaintiff does not dispute that the Officers had probable cause to arrest Lumar but argues that the subsequent act of fabricating evidence to charge Lumar with a nonbondable offense without probable cause, instead of allowing Lumar to bail himself out, constituted a wrongful detention after his arrest because "[i]f Defendants had not unlawfully detained Lumar, concealing from him his right to bond out, Lumar would have used the cash on his person to post bail." (See Dkt. 101 at 3-4). Plaintiff relies onManuel v. City of Joliet, in which the Supreme Court recently held that pretrial detention absent probable cause can violate the Fourth Amendment "not only when it precedes, but also when it follows, the start of the legal process," for example, when a court issues an arrest warrant. 137 S.Ct. 911, 911 (2017). Essentially, Plaintiff argues ...


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