United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, UNITED STATES DISTRICT COURT JUDGE
Desmond Washington, by counsel, filed a complaint against
defendants City of North Chicago, North Chicago police
officer Ben Fapso, City of Mundelein, and Mundelein police
officer Brian Wainscott alleging constitutional violations.
See 42 U.S.C. § 1983. Defendants filed motions
to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), after which Washington's counsel moved to
withdraw. The Court granted counsel's motion and held
oral argument on the motions to dismiss. After oral argument,
the parties filed additional briefs.
reasons stated below, the Court grants defendants'
motions with and without prejudice. The Court further grants
Washington leave to reallege his Fourth Amendment claim and
any attendant Monell liability claims. See
Runnion v. Girl Scouts of Greater Chicago & Nw.
Ind., 786 F.3d 510, 518 (7th Cir. 2015) (there is a
“presumption in favor of giving plaintiffs at least one
opportunity to amend.”). The Court dismisses
Washington's Fourteenth Amendment claim with prejudice.
Court recruits counsel for plaintiff due to the legal and
factual difficulty of his Fourth Amendment claim.
Specifically, the Court recruits Robert S. Grabemann of
Daspin & Augment, 300 S. Wacker Drive, Suite 2200,
Chicago, Illinois 60606, to represent plaintiff in accordance
with counsel's trial bar obligations under Northern
District of Illinois Local Rule 83.37. Counsel shall enter an
appearance in this case at his earliest convenience.
all well-pleaded allegations as true, officers Wainscott and
Fapso executed a no-knock warrant at Washington's
residence on October 30, 2014, and at some point they
arrested him. According to Washington, Wainscott and Fapso
falsely identified him as a member of the Four Corner Hustler
street gang and relayed this information to the Lake County,
Illinois State's Attorney's Office. The prosecutor
charged Washington and twenty-six others with violating the
Illinois RICO statute based on a police investigation that
collected hundreds of hours of electronic criminal
surveillance concerning the Four Corner Hustlers drug
trafficking conspiracy. Washington asserts that the hundreds
of hours of surveillance did not implicate him in any
criminal activity. The prosecutors dismissed the charges
against Washington on February 23, 2018, after he had spent
30 months as a pretrial detainee in the Lake County Jail.
motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim tests the sufficiency of the complaint, not its
merits. See Camasta v. Jos. A. Bank Clothiers, Inc.,
761 F.3d 732, 736 (7th Cir. 2014). When considering dismissal
of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in
favor of the plaintiff. Erickson v. Pardus, 551 U.S.
89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam);
Trujillo v. Rockledge Furniture LLC, 926 F.3d 395,
397 (7th Cir. 2019). To survive a motion to dismiss,
plaintiff must “state a claim for relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007) (“factual allegations must be enough
to raise a right to relief above the speculative
level.”). A complaint is facially plausible when
plaintiff alleges “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
first brings a Fourteenth Amendment due process claim
alleging wrongful pretrial detention based on fabricated
evidence. The Seventh Circuit, however, has held that
“the Fourth Amendment, not the Due Process Clause, is
the source of the right in a § 1983 claim for unlawful
pretrial detention, whether before or after the initiation of
formal legal process.” Lewis v. City of
Chicago, 914 F.3d 472, 479 (7th Cir. 2019). The Court
therefore dismisses Washington's Fourteenth Amendment
claim with prejudice and considers all of Washington's
arguments and allegations under the Fourth Amendment.
specifically alleges that the false information at issue is
that he was a member of the Four Corner Hustlers and that he
was involved in drug trafficking. He asserts that this false
information was the basis for the criminal charges brought
against him. Washington also contends that Fapso and
Wainscott testified about the fabricated evidence during his
criminal proceedings, although the prosecution dismissed his
charges before trial. In short, he alleges that the use of
fabricated evidence resulted in an unreasonable pretrial
seizure violating the Fourth Amendment.
allegations lack sufficient factual details to plausibly
state a claim against Wainscott and Fapso. See Catinella
v. Cty. of Cook, 881 F.3d 514, 516 (7th Cir. 2018) (to
state a plausible claim for relief, a plaintiff must allege
“enough details about the subject-matter of the case to
present a story that holds together.”) (citation
omitted). For an individual to be liable for a constitutional
violation, that individual must have been personally involved
or responsible for the alleged constitutional deprivation.
Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir.
2018). Washington's allegations of Wainscott's and
Fapso's involvement are bare-boned and conclusory. He
alleges, for example, that the officers provided “false
information, ” but vaguely refers to that information
as his gang membership and that he was not implicated in the
surveillance videos. Washington further makes the conclusory
statement that the officers provided this information to
prosecutors, which resulted in his unlawful pretrial
detainment. At oral argument, Washington admitted that he did
not know how Fapso participated in the “whole thing,
” although he explained that the officers lied. He also
asserts that the officers were not certified by the State of
Illinois to be Electronic Criminal Surveillance Officers, but
a violation of a state regulation does not amount to a
constitutional violation. Thompson v. City of
Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (“the
violation of police regulations or even a state law is
completely immaterial as to the question of whether a
violation of the federal constitution has been
the municipal defendants, Washington alleges a respondeat
superior claim against the City of Mundelein, but did not
address the City's arguments concerning the requirements
for sufficiently alleging municipal liability under
Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). To adequately allege Monell liability, a
plaintiff must set forth facts permitting the inference that
an unconstitutional practice was widespread and that the
violation was not an isolated incident. See Gill v. City
of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017).
Washington has failed to allege any facts concerning the City
of Mundelein's liability, let alone facts that raise a
reasonable inference that Mundelein had an unconstitutional
practice which caused his constitutional injury.
Washington brings an indemnification claim against the City
of North Chicago pursuant to 745 ILCS 10/9-102, which may be
appropriate if Fapso is found liable for the Fourth Amendment
violation. Indeed, if ...