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Harer v. Flores

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

July 18, 2019

HEATHER HARER and KEVIN HARER, co-executors of the estate of SAMANTHA HARER, Plaintiffs,


          Robert W. Gettleman United States District Judge.

         Samantha Harer died from a gunshot. Her parents, plaintiffs Heather and Kevin Harer, allege that Felipe “Phil” Flores was the shooter and that the Town of Channahon covered it up as a suicide. Te Harers, who are the co-executors of Samantha's estate, have moved for leave to file a second amended complaint in which they claim that Channahon's alleged cover-up denied them access to the courts. A pleading may be amended once as a matter of course. Fed.R.Civ.P. 15(a)(1). Further amendments, however, require the other party's consent or the court's leave. Fed.R.Civ.P. 15(a)(2). Channahon does not consent, so the Harers seek the court's leave.

         A court should give leave to amend “when justice so requires.” Id. Allowing the Harers to amend would not be just if their denial of access claim could not survive a motion to dismiss. Glick v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985). Channahon opposes amendment for that reason, arguing that the Harers' proposed complaint fails to state a claim for denial of access to the courts. Te court disagrees. Te Harers have stated a claim for denial of access to the courts and are thus given leave to fle their second amended complaint.


         In deciding whether the Harers have stated a claim, the court takes as true the allegations in their proposed complaint. Firestone Financial Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015). Te proposed complaint alleges that Samantha Harer was shot to death by her boyfriend, Felipe “Phil” Flores. Flores, a police often for the Town of Crest Hill, often accused Samantha of cheating on him with other police officers and routinely confiscated her cell phone to see who she was talking to. His jealousy led to Samantha's death.

         On February 12, 2018, in Samantha's Town of Channahon apartment, Samantha and Flores had a fight. They slept separately that night: Samantha in her bedroom; Flores, on the couch. Flores confronted Samantha the next morning at 8:00 a.m. He had taken her cell phone and discovered text conversations with another police often. They argued. A neighbor heard banging on the walls and a woman repeatedly yelling, “Let me go.” At 8:19 a.m., Flores called 9-1-1. He told the operator that Samantha had been shot. He said that they argued, she asked him to leave, and he left. He said that he heard her “gun rack.” Ten a gunshot. Te door was locked, so he “busted into the bedroom.” He saw her unconscious with a gunshot wound to her head and a gun laying between her legs. Flores declined the operator's suggestion to perform CPR-he said that Samantha wasn't breathing and that he could see her brain matter. Police and emergency personnel arrived. They saw a gunshot wound on Samantha's head and detected a faint pulse. Blood was splattered on the front and right sleeve of Flores's sweatshirt even though he said that he was on the other side of the locked door when he supposedly heard Samantha shoot herself. Samantha was taken to the hospital and died there.

         Within an hour of the shooting, the Channahon detective in charge of investigating Samantha's death, Andrew McClellan, surveyed the scene. He went there with an evidence technician. McClellan implicitly or explicitly directed the technician to make a preliminary finding of suicide. Te technician obliged. Without processing any forensic evidence and without talking to Flores or any other witness, the evidence technician concluded that the scene was consistent with a suicide.

         Within 24 hours of the shooting, McClellan, joined by the Channahon Chief of Police, Shane Casey, told Samantha's parents-Heather and Kevin Harer-that Samantha died from a self-inflicted gunshot wound. Casey and McClellan did not tell the Harers that a neighbor had heard a struggle shortly before the shooting or that Flores's sweatshirt had blood splattered on it. They told the Harers that Samantha's hand was positive for gunshot residue and that Flores was negative. Those statements were false. Tests found no gunshot residue on Samantha's hands. Tests found gunshot residue on the front and cuffs of Flores's sweatshirt-and on his right hand.

         Te Harers sued Flores, Crest Hill, and Channahon, bringing conspiracy and excessive force claims under 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658 (1978). Te Harers' lawyers withdrew in November 2018. Te three defendants moved to dismiss. A status hearing was scheduled for December 13, 2018. Te Harers, who no longer had a lawyer, did not attend. Te court scheduled another status hearing and stated that, “Plaintiffs must appear at the 1/22/2019 hearing or this case will be dismissed for want of prosecution.” On December 28, 2018, the Harers met with Casey, the police chief, and Adam Bogart, the deputy police chief. Also present were a coroner, a Will County prosecutor, and Channahon's civil counsel. Te Harers were told that there was an official finding that Samantha committed suicide-the forensic evidence showed that the gunshot wound was self-indicted. Casey and Bogart said that Samantha's toxicology report suggested a finding of suicide. Led to believe that the official finding of suicide barred their suit, the Harers did not attend the status hearing scheduled for January 22. Te court dismissed the case for want of prosecution.

         Te Harers later learned that the gunshot residue tests implicated Flores. And they learned that Casey and Bogart's statements about Samantha's toxicology report were false-the findings, in fact, were not consistent with suicide. Te Harers retained a new lawyer, the court granted their motion to reopen, and they amended their complaint.


         Te Harers now seek leave to amend their complaint a second time. In their proposed second amended complaint, the Harers sue: (1) Flores, for battery and intentional infliction of emotional distress; (2) the Town of Crest Hill, for concealing evidence that officers inflict sexual and domestic violence on women; and (3) the Town of Channahon and three of its employees- Shane Casey (the police chief), Adam Bogart (the deputy police chief), and Andrew McClellan (the lead detective)-for concealing evidence that Flores killed Samantha, thus denying the Harers access to the courts.

         Channahon argues that the Harers' claim for denial of access to the courts could not survive a motion to dismiss. A claim survives dismissal when it is plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Te Harers' access to the courts claim is plausible if the court, taking the facts alleged in their proposed second complaint as true, can reasonably infer that the Channahon defendants (the Town of Channahon, Casey, Bogart, and McClellan) are liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         A person's right to access the courts must be “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977). State actors violate the right to access when they “hinder[] . . . efforts to pursue a nonfrivolous legal claim, ” causing an “actual concrete injury.” May v. Sheahan, 226 F.3d 876, 883 (7th Cir. 2000). Municipalities have no duty “to provide flawless and abundant social services, ” Bell v. Milwaukee, 746 F.2d 1205, 1262 (7th Cir. 1984), and crime victims have no “constitutional right to have the police investigate” their cases. Rossi v. Chicago, 790 F.3d 729, 735 (7th Cir. 2015). But “municipal employees involved in the investigation of a wrong perpetrated by a co-employee under color of state law” must “not conceal the perpetration of that wrong.” Bell, 746 F.2d at 1262. Te right to access is “undoubtedly abridged, ...

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