United States District Court, N.D. Illinois, Eastern Division
LISA ALCORN, as Plenary Guardian of the Estate and Person of TYLER LUMAR, Plaintiff,
THE CITY OF CHICAGO, et. al. Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE
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") 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") 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.
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.
Arrest and Detention on Out-of-County Traffic
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 ¶
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.
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).
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).
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).
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).
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
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).
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).
Arrest and Detention on Possession of Narcotics
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).
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.
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).
Attempted Suicide in 11th District Lockup
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 ¶¶
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).
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).
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.
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
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).
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
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.
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).
Counts I, V and VII against Individual CPD
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.
Count I § 1983 Claim for Unlawful Detention in
Violation of the Fourth Amendment against the Individual CPD
Defendants in their Individual Capacities
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
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
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