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Harer v. Flores

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

November 14, 2019

HEATHER HARER and KEVIN HARER, co-executors of the estate of SAMANTHA HARER, Plaintiffs,
v.
FELIPE "PHIL" FLORES, TOWN OF CREST HILL, Illinois, TOWN OF CHANNAHON, Illinois, SHANE CASEY, ADAM BOGART, and ANDREW MCCLELLAN, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert W. Gettleman United States District Judge

         Heather and Kevin Harer allege that their daughter, Samantha Harer, was killed by her boyfriend, Felipe "Phil" Flores. Flores was a police officer for the Town of Crest Hill. He allegedly shot Samantha to death in her apartment in the Town of Channahon. Channahon police officers investigated the shooting and allegedly covered it up as a suicide.

         The Harers sue: (1) the Town of Crest Hill, for concealing and condoning evidence of officer misconduct; (2) the Town of Channahon and three of its employees-Shane Casey, Adam Bogart, and Andrew McClellan-for concealing evidence that Flores killed Samantha, thus denying the Harers access to the courts; and (3) Flores, for battery and intentional infliction of emotional distress. Four months ago, this court granted the Harers leave to file a second amended complaint, holding that the Harers had stated a claim for denial of access to the courts against the Channahon defendants. Harer v. Flores. No. 18 CV 6822, 2019 WL 3231385, at *3-4 (N.D. Ill. July 18, 2019).

         Crest Hill, the Channahon defendants, and Flores move to dismiss the second amended complaint. To avoid dismissal, a claim must be plausible. A claim is plausible if the court, taking the allegations as true, can reasonably infer that the defendant is liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly 550 U.S. 544, 570 (2007).

         Defendants' motions to dismiss are denied. The court presumes familiarity with the allegations stated in its earlier opinion, Harer. No. 18 CV 6822, 2019 WL 3231385, at *l-2, and recounts those allegations only as needed.

         1. Crest Hill's motion to dismiss

         The Harers allege that Crest Hill has a practice of concealing and condoning officer misconduct. This practice allegedly allowed Flores to kill Samantha with impunity. Crest Hill moves to dismiss, arguing that: (1)the Harers fail to state an underlying constitutional violation because Flores was not acting under color of law when he allegedly killed Samantha; and (2) the Harers fail to raise a reasonable inference that Crest Hill has a practice of concealing and condoning police misconduct. Both arguments fail. Crest Hill's motion to dismiss is denied.

         1.1 Underlying constitutional violation

         For Crest Hill to be liable, Samantha's death must have been caused by: "(1) an official policy adopted and promulgated by [Crest Hill's] officers; (2) a governmental practice or custom that, although not officially authorized, is widespread and well settled; or (3) an official with final policy-making authority." Thomas v. Cook County Sheriff s Department, 604 F.3d 293, 303 (7th Cir. 2010). The Harers seek to hold Crest Hill liable under option two. They allege that Crest Hill's practice of concealing and condoning officer misconduct caused Samantha's death.

         Crest Hill argues that it cannot be liable because Flores was not acting under color of state law when he allegedly shot Samantha. Without state action by Flores, Crest Hill argues, there is no constitutional violation. Not so. A municipality is liable under section 1983 when "the municipality itself causes the constitutional violation." Dunn v. City of Elgin, Illinois, 347 F.3d 641, 645-46 (7th Cir. 2003). If a Crest Hill practice was the "moving force of the constitutional violation," Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 694 (1978), Crest Hill "itself is the state actor" and "supplies the 'color of law' requirement under § 1983." Gibson v. Chicago, 910 F.2d 1510, 1519 (7th Cir. 1990); see also Barrett v. Orange County Human Rights Commission, 194 F.3d 341, 350 (2d Cir. 1999) ("We agree with our sister circuits that under Monell municipal liability for constitutional injuries may be found to exist even in the absence of individual liability, at least so long as the injuries ... are not solely attributable to the actions of named individual defendants."); Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994) ("We hold that in a substantive due process case arising out of a police pursuit, an underlying constitutional tort can still exist even if no individual police officer violated the Constitution."); Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) ("If a plaintiff establishes he suffered a constitutional injury by the City, the fact that individual officers are exonerated is immaterial to liability under § 1983.") (emphasis in original); Garcia v. Salt Lake County, 768 F.2d 303, 310 (10th Cir. 1985) ("Monell does not require that a jury find an individual defendant liable before it can find a local governmental body liable."); Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (Monell . . . and its progeny do not require that a jury must first find an individual defendant liable before imposing liability on local government.").

         As Judge Leinenweber persuasively explains in LaPorta v. Chicago, 277 F.Supp.3d 969 (N.D. Ill. 2017), a municipality may be liable even if its employee acted without color of law:

The City's color-of-law argument dies a swift death at the hands of Gibson v. Chicago, 910 F.2d 1510, 1519 (7th Cir. 1990). In that § 1983 action, the Seventh Circuit found that a police officer on medical leave as mentally unfit for duty and in receipt of a specific order to cease using police powers was not acting under color of law when he shot the victim. It nonetheless held that the City was not entitled to summary judgment because it was the City's policy of allowing the deranged police officer to retain his service revolver and bullets that the plaintiff challenged under Monell. See, id. at 1517-20 ("Gibson contends that the City's policy of allowing a deranged police officer to retain his service revolver and bullets is the state action that deprived him of his life. Consequently, the City is not entitled to summary judgment on the ground that [the officer] did not act under color of state law.") As the Seventh Circuit noted, the officer need not have been acting under color of law at the time of the accident because, in this flavor of Monell, the "municipality itself is the state actor and its action in maintaining the alleged policy at issue supplies the 'color of law' requirement under § 1983." Id. at 1519.

Id. at 986. Recognizing Gibson's force, Crest Hill argues that it is bad law. LaPorta rightly held otherwise:

The City characterizes Gibson as either bad law or factually distinguishable from the case at bar. But all the salient data points plot a course consistent with Gibson, declining to impose a color-of-law requirement where the municipal policy under which the official proceeded is alleged to have itself caused the injury. See, e.g.. Cazares v. Frugoli, No. 13 C 5626, 2017 WL 1196978, at * 13-14 (N.D. Ill. Mar. 31, 2017) (holding that Gibson precluded any color-of-law escape hatch where plaintiff claimed under Monell that the City's code of silence and failure to investigate and impose discipline for officer misconduct emboldened an off-duty officer to drive drunk in his personal car, thereby causing the injuries of victims whom he struck and killed); Almaguer v. Cook County, No. 08 C 587, 2012 WL 4498097, at *6 (N.D. Ill. Sept. 27, 2012) ("A conclusion that an individual state employee did not act under color of state law does not allow for summary judgment on a municipal liability claim."); Obrycka v. Chicago, No. 07 C 2372, 2012 WL 601810, at *6 (N.D. Ill. Feb. 23, 2012) (holding that, in a Monell claim, "the municipality itself is the state actor and its action in maintaining the alleged policy at issue supplies the 'color of law' requirement under § 1983.") (citing Gibson, 910 F.2d at 1519-20); Garcia, 2003 WL 1845397, at *2 (same).

Id. at 986 (some citations omitted). The court agrees with and sees no need to add to Judge Leinenweber's well-reasoned analysis.

         1.2 Failure to state a Monell claim

         Next, Crest Hill argues that the complaint raises no inference that Crest Hill conceals and condones officer misconduct. Not so. The Harers may plead an unconstitutional practice by "showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned, thus in either event adopting, the misconduct of subordinate officers." Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995).

         The Harers have alleged such a series of bad acts involving Flores and other Crest Hill police officers. Crest Hill allegedly:

did nothing about a 2016 complaint that Flores raped an acquaintance, K.K., while she was asleep;
did nothing about a complaint that Flores assaulted someone with his gun while on duty;
did nothing about Flores's known drinking problem, which caused "a number of off-duty ...

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