United States District Court, N.D. Illinois, Eastern Division
HEATHER HARER and KEVIN HARER, co-executors of the estate of SAMANTHA HARER, Plaintiffs,
FELIPE "PHIL" FLORES, TOWN OF CREST HILL, Illinois, TOWN OF CHANNAHON, Illinois, SHANE CASEY, ADAM BOGART, and ANDREW MCCLELLAN, Defendants.
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge
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.
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).
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).
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.
Crest Hill's motion to dismiss
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.
Underlying constitutional violation
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
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.").
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.
Failure to state a Monell claim
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).
Harers have alleged such a series of bad acts involving
Flores and other Crest Hill police officers. Crest Hill
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 ...