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Rivera v. Town of Cicero

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

October 23, 2019

TOWN OF CICERO, et al., Defendants.



         Before the Court is Defendants' motion to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is granted in part and denied in part.


         For purposes of this motion, the Court accepts as true the following facts from the complaint. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). All reasonable inferences are drawn in Plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Plaintiff William Rivera (“Rivera”), an Illinois resident, is a privately employed process server. Defendant Town of Cicero is an Illinois municipal corporation. Defendants Armando Galvin (“Galvin”), Kane, Perez, Andrew Gutierrez (“Gutierrez”), Charles Sierra (“Sierra”), J. Koseneski (“Koseneski”), Edgar Alba (“Alba”), and Lara, are all Officers with the Cicero Police Department. Defendant Salvador Orozco (“Orozco”) is a detective in the same Department. Defendant Christopher Wojtowicz is the Captain of the Cicero Police Department (collectively, “Defendants”).

         On June 7, 2018, Rivera was attempting to serve a federal subpoena upon Larry Dominick (“Dominick”), the President of Cicero, and Ruth Ortega (“Ortega”). While driving, Rivera was pulled over by Cicero Police Officers Kane and Galvin. Officer Kane approached Rivera's driver-side door and asked for Rivera's driver's license. Rivera asked why he was pulled over, but Kane did not respond.

         Kane saw Rivera's badge and asked whether he was a police officer. Rivera answered that he was not a police officer but a process server. Kane asked to see the badge, and Rivera handed it to him. Kane asked Rivera whether he worked for Cook County. Rivera said no, but he mentioned that he took process serving courses in Cook County, and they provided him with the badge.

         Kane asked Rivera who he was serving and whether Kane could see the document. Rivera told Kane that he was trying to serve Dominick. Kane asked Rivera who sent him, but Rivera did not respond. Kane informed Rivera that he was not authorized to serve the subpoena because he did not work for Cook County. Rivera tried to explain that he was a private process server and told Kane that he had a Permanent Employee Registration Card (“PERC”). Kane asked for the card and took the card, Rivera's badge, and driver's license to the squad car.

         Officer Galvin approached Rivera's driver-side door and told him to stay in the car. About ten minutes later, two additional police cars arrived at the scene. Rivera alleges that one of the new officers was “a captain or sergeant in a white shirt with three stripes, [who] proceeded to ask Rivera the same questions” asked by Kane. The sergeant then walked away with the other officers and left.

         At this point, only Officers Kane, Galvin, and Perez were present at the scene. About five minutes later, another police car arrived, and “a tall Hispanic officer arrived and spoke with the other officers but did not approach Rivera.” Shortly after that, “a short, chubby, Caucasian officer pulled up in a Town of Cicero police car.” The Caucasian Officer reviewed Rivera's documents and then approached him with Officer Kane. The Caucasian Officer asked Rivera why he was serving subpoenas when he did not work for Cook County and asked why he was serving Ortega. The Caucasian Officer also asked why Rivera was trying to serve Dominick when he is the President of Cicero.

         Rivera responded that he was a private process server, and his job requires him to serve legal documents such as subpoenas and evictions. He noted that his job did not require him to know why the individuals were being served, and he did not know why they were being served.

         Around 2:10 p.m., another police car arrived with two additional officers. Rivera alleges that “[o]ne of the newly arrived young, Hispanic officers approached [the vehicle] and ordered him out of the [car].” Rivera exited his car and was ordered to walk to the back of his car. The Officer asked Rivera whether he carried a gun and Rivera said no. The Officer then received Rivera's driver's license, badge, PERC card, and papers from Officer Kane. The Officer walked away while talking on a cell phone as he examined Rivera's documents. The Officer returned and asked Rivera what he was doing there. Rivera repeated the answers he gave to the other officers. The Officer put Rivera's badge in his pocket, handed the other documents back to Officer Kane, and left to investigate Rivera.

         Rivera then alleges that Officer Ramirez arrested him. Rivera was not given a reason for his arrest and was not Mirandized. Officer Kane handcuffed Rivera and took him to the squad car for transportation back to the Cicero Police station. As they were leaving, Rivera alleges he saw Ramirez search his car.

         At the Police Station, Rivera was processed for his fingerprints and mugshot. Rivera alleges that the processing officer was rough and insulted him by calling him “stupid.” After processing Rivera, the processing officer “tightly cuffed [his] left hand, pressing into [his] bone.” Rivera was next transported to a single cell. He alleges that he was pushed into the cell and had to place his hands on the window to be uncuffed. The transporting officer pulled on Rivera's arms and roughly removed the handcuffs. Rivera allegedly “saw Officer Galvin shaking his head” when he was in the cell. Rivera further alleges that Officer Rodriguez told him he would be “investigated in an hour, not too late but soon.” According to Rivera, “the air conditioning in the cell caused the temperature to be freezing.” When Rivera asked the officers to lower the air conditioning or place him in a warmer cell, they refused. After this interaction, Rivera alleges that the cell became even colder. Rivera asked for a lawyer but was denied and told that he needed to be processed first. As time passed, Rivera alleges that the cell remained freezing, and he “fell to the floor trembling.” Rivera further alleges that the officers walked by and did nothing.

         On June 8, 2018, at approximately 1:35 a.m., Rivera alleges he was taken to an interrogation room and that two officers, including Officer Ramirez, laughed at him as he was being removed from the cell. In the interrogation room, Rivera was provided with his Miranda Rights on a piece of paper. He was told to read and sign. Rivera asked for an attorney again and was denied.[1]

         Rivera then asked why he was being held, and the officers informed him that he was being charged with theft. They told him that there was a video of him stealing a package from one of the addresses where he tried to serve Dominick. Rivera asked to see the video but was instead shown two still photographs of a house. After Rivera challenged the officers as to whether they had proof of him stealing, they threatened him with felony charges for not being a Cook County process server and stealing. They told him that they will get a search warrant for his house and that they will argue the stolen items were already sold if they did not find them at his house.

         Rivera then signed a confession regarding the stolen items, allegedly under duress from repeated threats of elevating the charges and returning him to a freezing cell. The Officers gave Rivera a phone and told him to call his wife to let her know that they were coming over shortly. The officers told Rivera that if his wife provided them with any item, the charge would remain a misdemeanor. But if they returned to the department empty-handed, then the charge would be a felony. Rivera complied with the officers' demands.

         Rivera alleges, upon information and belief, that the officers arrived at his house early in the morning and woke up the entire house. There were two Cicero Police officers at the door. They did not show a warrant or their badges, but they provided Rivera's wife with a document to sign. Rivera alleges the document was written in English, and his wife had limited English proficiency and could not read. The officers then pushed their way into Rivera's house, into his living room, asking questions about Rivera and his family. They looked around the house and told Mrs. Rivera that they must return with something.

         Around noon on June 8, 2018, Rivera was allowed out of the cell. An officer told him that he is lucky for not getting a felony charge for illegally attempting to serve a subpoena while not being a Cook County officer. Shortly after that, an officer told Rivera he was given bond. Rivera alleges that not all his items were returned upon release, and his car was missing items, including the subpoenas and legal papers he tried to serve, his cell phone charger, and $40 in gas money that he kept in the center counsel.

         On June 4, 2019, Rivera filed suit against the Town of Cicero, and Officers Galvin, Kane, Perez, Gutierrez, Sierra, Koseneski, Alba, Lara, Captain Wojtowics, Detective Orozco, Deputy Police Superintendent Schullo and Unknown Town of Cicero Police Officers. Counts I through IV of the complaint assert claims under 42 U.S.C. § 1983; Counts V through VIII assert state-law claims.

         Count I of Rivera's complaint alleges Unlawful Search and Seizure claims. Counts II and V allege False Arrest and Imprisonment claims under § 1983 and Illinois law, respectively. Count III alleges Excessive Force claims. And Count IV alleges Failure to Intervene Claims. Count VI alleges a state law indemnification claim against the Town of Cicero. Count VII alleges an Intentional Infliction of Emotional Distress claim and, in the alternative, Count VIII alleges Negligent Infliction of Emotional Distress claims against all defendants. On September 11, 2019, Defendants filed a Rule 12(b)(6) motion to dismiss all counts, except for Counts I, V, VII, and VIII as asserted against Officers Kane and Galvin. Defendants move to dismiss Rivera's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

         LEGAL ...

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