United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
H. LEFKOW U.S. DISTRICT JUDGE
Neita has sued the City of Chicago, Chicago police officers
Karen Rittorno and Domingo Enriquez, and Chicago Department
of Animal Care and Control officer Arturo Franco under 42
U.S.C. § 1983 and various Illinois tort theories.
Against the defendant officers, Neita brings claims of false
arrest (Count I), illegal search and seizure (Count II),
malicious prosecution under § 1983 and Illinois law
(Counts III and VIII), conspiracy to deprive him of his
constitutional rights (Count IV), retaliation for the
exercise of his First Amendment rights (Count V), and failure
to intervene (Count VI). Against the City, Neita brings claims
for indemnification (Count VII) and malicious prosecution
under the doctrine of respondeat superior (Count VIII). Neita
also brings a claim of intentional infliction of emotional
distress against all defendants (Count IX). Defendants now
move to dismiss Neita's complaint in its entirety. (Dkt.
12.) For the reasons below, defendants' motion is granted
in part and denied in part.
February 4, 2018, Officer Rittorno received an email from the
City of Chicago Department of Animal Care and Control
requesting an investigation into the treatment of a dog at
413 N. Central Park Ave. (Dkt. 1 ¶ 6.) On February 7,
2018, Officers Rittorno and Enriquez went to the address and
observed Neita's dog, Macy, in good health and in an
otherwise “unremarkable condition.” (Id.
¶ 7.) Nevertheless, the officers seized Macy.
(Id.) Neita was not present when the officers first
arrived at his house but subsequently returned home and
requested that Macy be released into his custody.
(Id. ¶¶ 8-9.) The officers refused.
(Id. ¶ 9.) Neita telephoned his sister, also a
Chicago police officer, who advised Neita to request that the
officers call for their supervisor. (Id. ¶ 10.)
Neita made that request, but Officer Rittorno stated that
they had no supervisor, to which Neita's sister replied
that she would call for a supervisor herself. (Id.
¶ 11.) Officer Rittorno then acquiesced in calling for a
supervisor, but immediately thereafter Officers Rittorno and
Enriquez placed Neita under arrest. (Id. ¶ 11.)
At the direction of Officers Rittorno and Enriquez, Officer
Franco took possession of Macy. (Id. ¶ 13.) As
a result of these events, Neita was charged with animal
cruelty and violation of owner's duties under Illinois
law. (Id. ¶ 15.)
had previously filed a civil rights lawsuit similar to the
present one, and he argues that all of the defendant
officers' acts described above were motivated by a desire
to retaliate against him for doing so. (Id. ¶
March 16, 2018, a hearing was held before Judge Robert Kuzas
of the Circuit Court of Cook County on a motion by the State
to require Neita to post security and forfeit Macy.
(Id. ¶ 17.) Officer Rittorno and Dr. Lindsey
Garner, a veterinarian who had conducted a physical exam of
Macy, testified for the State. (Id. ¶ 17.) Dr.
Garner testified that she had conducted a thorough physical
examination of Macy and found her to be in “normal body
condition, ” with some dirt in her fur coat. (Id.
¶ 19.) At the conclusion of the hearing, the
Circuit Court denied the State's petition to forfeit Macy
and ordered Macy returned to Neita subject to payment of
reasonable costs for care to date, which amounted to $369.00.
(Dkt. 1 ¶¶ 20-21.)
April 18, 2018, the case was set for a bench trial.
(Id. ¶ 22.) At trial, Officer Rittorno conceded
she had withheld photographic evidence from discovery, which
the State then produced in court that day. (Id.
¶¶ 23-24.) The Court granted Neita's motion for
a directed verdict on the grounds that the State had failed
to set forth prima facie evidence of Neita's guilt of any
offense. (Id. ¶ 26.) The Court concluded that
the State's proffered basis for the criminal charges
against Neita was that he had failed to keep his dog house at
least two inches off the ground, but that no such obligation
exists. (Id. ¶¶ 26-27)
subsequently brought this action, which defendants move to
dismiss for failure to state a claim, relying largely on
transcripts of testimony from the State criminal case that
Neita attached to his complaint, which they assert show the
officers had probable cause for Neita's arrest. (Dkt.
12.) In opposition to the motion, Neita argues that the
officers lacked probable cause to arrest him viewing the
facts in the light most favorable to Neita. (Dkt. 16.)
ruling on a Rule 12(b)(6) motion, the court accepts as true
all well-pleaded facts in the plaintiff's complaint and
draws all reasonable inferences from those facts in the
plaintiff's favor. Active Disposal, 635 F.3d at
886; Dixon v. Page, 291 F.3d 485, 486 (7th Cir.
2002). To survive a Rule 12(b)(6) motion, the complaint must
not only provide the defendant with fair notice of a
claim's basis but must also establish that the requested
relief is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009);
Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955 (2007). The allegations in the complaint must be
“enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555,
127 S.Ct. 1955. At the same time, the plaintiff need not
plead legal theories; it is the facts that count.
Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743
(7th Cir. 2010); see also Johnson v. City of Shelby,
574 U.S. 10, 135 S.Ct. 346, 346 (2014) (per curiam)
(“Federal pleading rules call for a short and plain
statement of the claim showing the pleader is entitled to
relief; they do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
Documents Before the Court
general, courts may only consider the allegations within the
four corners of a complaint when deciding a Rule 12(b)(6)
motion. Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993). When
information outside the complaint comes before the court,
Rule 12(d) directs courts either to exclude the information
or to convert the motion to one for summary judgment.
Id. Nevertheless, a court may consider extrinsic
documents as though they were part of the complaint if the
documents are referred to in the complaint and are central to
the claim. Id.; see also Wright v. Associated
Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). This
exception aims at preventing plaintiffs from evading Rule
12(b)(6) dismissal simply by omitting critical materials from
the complaint. Brownmark Films, LLC v. Comedy
Partners, 682 F.3d 687, 690 (7th Cir. 2012); Tierney
v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002).
Neita attached multiple documents to his complaint, including
an arrest report (Exhibit 1), a Gang Investigation Division
Supplementary Report (Exhibit 2), and transcripts of
proceedings in the underlying criminal case (Exhibits 3 &
4). Defendants argue that statements made by the officers in
these documents can be relied upon to demonstrate probable
cause at the motion to dismiss stage, and thus that Neita has
pleaded himself out of court. (Dkt. 12 at 4.)
argument is unpersuasive. “The plaintiff's purpose
in attaching an exhibit to his complaint determines what
assertions if any in the exhibit are facts that the plaintiff
has incorporated into the complaint.” Guzzell v.
Hiller, 223 F.3d 518, 519 (7th Cir. 2000). Neita
repeatedly disputes the accuracy of the officer's
testimony throughout the complaint-indeed, those disputes
form the heart of his claims. (See, e.g.,
dkt. 1 ¶¶ 18, 25.) The court cannot credit the
officers' testimony to the contrary at this stage.
See Stopa v. City of Chi., No. 91 C 2909, 1992 WL
7437, at *2 (N.D. Ill. Jan. 14, 1992) (“defendants'
attempt to submit evidence to establish probable cause is
inappropriate in a motion to dismiss”); Gay v.
Robinson, No. 08-4032, 2009 WL 196407, at *4 (C.D. Ill.
Jan. 27, 2009) (“the existence of probable cause is a
fact-based inquiry that is more properly resolved on summary
Count I: False Arrest
first claim is that his arrest violated his Fourth Amendment
rights and is actionable under § 1983. “To prevail
on a false-arrest claim under 42 U.S.C. § 1983, a
plaintiff must show that there was no probable cause for his
arrest.” Neita v. City of Chicago, 830 F.3d
494, 497 (7th Cir. 2016) (citing Thayer v.
Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012)). To
determine whether an officer had probable cause to arrest,
the court examines whether an objectively reasonable officer
in the arresting officer's position would conclude, based
on the facts and circumstances within the officer's
knowledge, that the suspect has committed, is committing, or
is about to commit an offense. See D.C. v. Wesby,
____ U.S.____, 138 S.Ct. 577, 586 (2018); Harney v. City
of Chi., 702 F.3d 916, 922 (7th Cir. 2012). The probable
cause standard depends on the totality of the circumstances
and “requires only a probability or substantial chance
of criminal activity, not an actual showing of such
activity.” Wesby, 138 S.Ct. at 586 (quoting
Illinois v. Gates, 462 U.S. 213, 243-44, n.13, 103
S.Ct. 2317 (1983)). At the motion to dismiss stage, after
accepting the well-pleaded facts as true, the existence of
probable cause is a question of law. Rusinowski, 835
F.Supp.2d at 648 (citing United States v. Ellis, 499
F.3d 686, 688 (7th Cir. 2007)).
was arrested for suspected animal cruelty and violation of
owner's duties under the Illinois Humane Care for Animals
Act, 510 Ill. Comp. Stat 70/3.01 and 510 Ill. Comp. Stat.
70/3. (Dkt. 1 at ¶ 15; Ex. 1.) The
complaint alleges that Macy presented in an unremarkable
condition and in good health at the time the officers arrived
at his residence. (Dkt. 1 ¶ 7.) Furthermore, Neita's
testimony at the seizure hearing-which he asks this court to
credit-was that Macy was given ample food and water and her
shelter was adequately heated. Neita further testified that
the double leash used to tether Macy was eleven feet in
length, surpassing the 10-foot requirement for tethering
outside. (See Id. ¶ 26.) Taken as true, these
assertions do not establish as a matter of law that a
reasonable officer would have had probable cause to believe
that Neita had abused or neglected Macy in violation of the
Count II: Illegal Search and Seizure
next alleges that Officers Rittorno, Enriquez, and Franco
illegally searched his person and seized Macy after his
arrest. Searches and seizures conducted without a warrant
“are per se unreasonable under the Fourth
Amendment-subject only to a few specifically established and
well-delineated exceptions.” Arizona v. Gant,
556 U.S. 332, 338, 129 S.Ct. 1710 (2009) (citing Katz v.
United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967)).
Among these exceptions is a search incident to a lawful
arrest, which Defendants argue applies here. Id.;
(Dkt. 12 at 7.)
forth above, however, because Neita adequately alleges that
his arrest was not lawful, the court cannot determine as a
matter of law that the search-incident-to-arrest exception
applies. Therefore, Neita's claim for illegal search and
seizure may proceed.
Count III: Section 1983 ...