United States District Court, N.D. Illinois, Eastern Division
HEATHER HARER and KEVIN HARER, co-executors of the estate of SAMANTHA HARER, Plaintiffs,
FELIPE “PHIL” FLORES, TOWN OF CREST HILL, Illinois, and TOWN OF CHANNAHON, Illinois, Defendants.
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge.
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
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.
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
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.
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.
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
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.
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
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.
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).
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, ...