United States District Court, N.D. Illinois, Eastern Division
S. Shah, United States District Judge.
Rodeway Inn's motion to dismiss Counts I-III of
plaintiff's complaint  is granted. Those counts are
dismissed against Rodeway without prejudice.
Plaintiff Jocelyn Miller rented a room at the Rodeway Inn
Chicago-Evanston for one night.  ¶ 13.[*]
While Miller was sleeping, two Chicago police officers
arrived at the hotel and asked a hotel employee for access to
Miller's room.  ¶¶ 20-21. The employee
agreed.  ¶¶ 21, 45. The employee did not call
Miller, ask to see a search warrant, or ask the officers why
they wanted to enter Miller's room.  ¶¶
21-22, 46, 48. Miller suddenly heard “loud and violent
bangs” on the door of her hotel room.  ¶ 29.
The officers entered her room with their weapons drawn and
pointed at Miller, told her to get on the ground, and
searched her room.  ¶ 29-30.
brings 13 claims against the City of Chicago, two named
individual officers and unknown officers, Sabra Management
(doing business as Rodeway Inn Chicago-Evanston), and Choice
Hotel International, Inc. As relevant here, Miller sues
Rodeway Inn under 42 U.S.C. § 1983 for excessive force,
unlawful search and seizure, and failure to intervene. 
¶¶ 54-70 (Counts I-III). Rodeway Inn moves to
dismiss those counts because Rodeway Inn is not a state actor
for purposes of 42 U.S.C. § 1983. I agree with Rodeway.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must state a claim upon which relief may be granted.
Fed.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss, a
court must construe all factual allegations as true and draw
all reasonable inferences in the plaintiff's favor.
Doe v. Columbia Coll. Chicago, 933 F.3d 849, 854
(7th Cir. 2019) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)); Sloan v. Am. Brain Tumor
Ass'n, 901 F.3d 891, 893 (7th Cir. 2018).
“§ 1983 does not permit suits based on private
conduct.” Spiegel v. McClintic, 916 F.3d 611,
616 (7th Cir.), cert denied, No. 18-1558, 2019 WL
4921457 (Oct. 7, 2019); see also Alarm Detection Sys.,
Inc. v. Vill. of Schaumburg, 930 F.3d 812, 825 (7th Cir.
2019) (“[P]rivate actors … cannot usually be
sued under § 1983.”). A number of exceptions allow
§ 1983 liability when a private entity acts under color
of state law. See Hallinan v. Fraternal Order of Police
of Chi. Lodge No. 7, 570 F.3d 811, 815-16 (7th Cir.
2009) (listing theories of private liability under §
Miller relies on the conspiracy exception: that Rodeway acted
in concert with the CPD officers. A private actor may be sued
under § 1983 if he “conspires with a state actor
to deprive someone's constitutional rights.”
Alarm Detection Sys., 930 F.3d at 825. To establish
§ 1983 liability through conspiracy, the plaintiff must
allege that the state actor and the private individual
“reached an understanding to deprive the plaintiff of
his constitutional rights, ” and the private individual
was a “willful participant” in joint activity
with the state actor. Spiegel, 916 F.3d at 616
(quoting Fries v. Helsper, 146 F.3d 452, 457 (7th
Cir. 1998)). There must be evidence of a “concerted
effort between a state actor and th[e private]
individual.” Id. (quoting Fries, 146
F.3d at 457). Merely “alleging aid to or encouragement
of state action” is not enough. Id. And
“mere allegations of joint action or a
conspiracy” are “not sufficient to survive a
motion to dismiss.” Id. (quoting
Fries, 146 F.3d at 458).
alleges only that the hotel employee allowed the officers to
access her room. She does not plead any facts supporting the
inference that the employee knew what the officers were going
to do, that he or she reached an understanding with the
officers to deprive Miller of her constitutional rights, or
that the employee willingly participated in the officers'
actions. Miller does not allege that the employee entered the
room, used any force against her, or participated in the
search. She cabins those accusations to the police officers
themselves, and accuses the employee only of granting access
to the room. At best, that act was “aid” to the
officers, but aid to the state is not enough to convert the
actions of a private citizen into state action.
Spiegel, 916 F.3d at 616. Miller's allegation is
insufficient to state a claim that Rodeway acted in concert
with the police.
claims against Rodeway fail for another reason. Even if
Rodeway or its employee acted under color of state law, a
private corporation is treated like a municipality for §
1983 purposes. Gaston v. Ghosh, 920 F.3d 493, 494-95
(7th Cir. 2019); Shields v. Ill. Dep't of Corr.,
746 F.3d 782, 789 (7th Cir. 2014). So, like a municipality, a
corporation is not subject to vicarious liability for the
actions of its employees. Gaston, 920 F.3d at 494-95
(citing Iskander v. Forest Park, 690 F.2d 126 (7th
Cir. 1982)). To prevail on her claim, Miller must allege that
the constitutional violation resulted from an
“unconstitutional policy or custom of the corporation
itself.” Shields, 746 F.3d at 789. Miller has
not adequately alleged that her injuries were the result of
Rodeway's “official policy or custom.”
Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d
650, 675 (7th Cir. 2012). Miller argues that Rodeway did not
train its employees to refuse access to police officers
requesting access to guests' rooms absent a search
warrant, exigency, or consent. She labels this failure to
train a policy. But liability attaches only where the
corporation's policymakers make “a deliberate
choice to follow a course of action” from “among
various alternatives.” Id. (quoting City
of Canton v. Harris, 489 U.S. 378, 389 (1989)). A
failure to provide adequate training may be a basis for
liability-if it has a direct casual connection to
plaintiff's injury- but “the plaintiff must show
that the failure to train reflects a conscious choice among
alternatives that evinces a deliberate indifference to the
rights of the individuals with whom those employees will
only allegation on this point is that Rodeway never trained
its employees on guests' right to be free from police
officers entering their rooms.  ¶ 49. She does not
plead any facts suggesting that the Rodeway employee who
granted access to her room was in a policymaking position, or
that Rodeway supervisors or executives made a deliberate
choice not to train their employees to properly handle police
requests for access to guests' rooms. There is no
allegation to support an inference that unlawful hotel
searches are so rampant that the failure to train reflects a
deliberate indifference to the constitutional rights of
guests like Miller. And she identifies the act of only one
employee. Even if Rodeway were acting under the color of law,
Miller's complaint would not state a claim for liability
under a policy theory. See, e.g., Katz-Crank v.
Haskett, 843 F.3d 641, 647 (7th Cir. 2016) (upholding
dismissal of complaint that alleged “lots of
individual misconduct, ” but no policy or
custom that caused an injury); Latuszkin v. City of
Chicago, 250 F.3d 502, 505 (7th Cir. 2001) (upholding
dismissal of complaint that did not allege any facts showing
that policymakers were aware of an individual's behavior
or “that the activity was so persistent and
widespread” that policymakers should have known about
Rodeway contends that I should dismiss Count III, failure to
intervene, with prejudice because only a police officer may
be liable for a failure-to-intervene claim. While most
failure-to-intervene claims arise in the context of police
officers, see Yang v. Hardin, 37 F.3d 282 (7th Cir.
1994), that does not necessarily mean a claim could never be
viable against someone else. See Ali v. Vill. of Tinley
Park, 79 F.Supp.3d 772, 778 (N.D. Ill. 2015) (allowing
failure-to-intervene claim to proceed against firefighters,
and noting the lack of “precedential caselaw explicitly
cabining the duty to police officers”). The state-actor
and Monell requirements for § 1983 liability
against private corporations provide the applicable limiting
principles here. Although unlikely in practice, it is not
categorically impossible for a corporation to be responsible
for a constitutional tort under a failure-to-intervene
theory. I thus decline to dismiss Count III with prejudice.
I through III against Rodeway are dismissed without
prejudice. See Runnion ex rel. Runnion v. Girl Scouts of
Greater Chi. & Nw. Ind.,786 F.3d 510, 518 (7th Cir.
2015) (noting the presumption in favor ...