United States District Court, N.D. Illinois, Eastern Division
CHARLES P. KOCORAS UNITED STATES DISTRICT JUDGE
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.
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
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
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.
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
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.