McIntosh v. City of Chi.

ESTATE OF ROSHAD MCINTOSH, Deceased, by Cynthia Lane, Administrator, Plaintiff, v. CITY OF CHICAGO, Chicago Police Officers SLECHTER, Star #4924; SAMPIM,Star #19641; ZODO, Star #1561; and BOWERY, Star #11973, Defendants.

No. 15 C 1920

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

September 2, 2015

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff Estate of Roshad McIntosh, appointed Administrator Cynthia Lane, filed her First Amended Complaint on May 12, 2015, naming as Defendants, the City of Chicago ("City") and Chicago Police Officers Slechter, Star #4924 ("Slechter"), Sampim, Star #19641 ("Sampim"), Zodo, Star #1561 ("Zodo"), and Bowery, Star #11973 ("Bowery") (collectively "Defendant Officers", together with Defendant City "Defendants") and alleging claims for an unconstitutional seizure under 42 U.S.C. § 1983 (Count I) against Defendant Officers; a Monell claim against Defendant City (Count II); state law claims for wrongful death (Count III), survival (Count IV), funeral expenses (Count V), intentional infliction of emotional distress (Count VI), conspiracy (Count VII), and battery (Count VIII) against Defendant Officers; and respondeat superior (Count IX) and indemnification (Count X) against Defendant City. (See generally, R.12, Pl.'s Amd. Compl.) Plaintiff further requests punitive damages under Counts I, III, IV, V, VII, and VIII. (Id.) Before the Court is Defendant Officers' partial motion to dismiss Plaintiff'sFirst Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, seeking dismissal of Counts III, IV, V, and VIII against Defendants Sampim, Zodo, and Bowery and dismissal of Plaintiff's request for punitive damages under Counts III, IV, and V. (R.20.) Also before the Court is Defendant City's Motion to Bifurcate Section 1983 Claims and to Stay Discovery and Trial on Those Claims pursuant to Federal Rule of Civil Procedure 42(b). (R.28.) For the reasons set forth below, the Court grants in part and denies in part Defendant Officers' partial motion to dismiss and denies Defendant City's motion to bifurcate without prejudice to a renewed motion for bifurcation of trial after discovery is completed.

BACKGROUND

I. Factual Allegations

Viewing the allegations in the light most favorable to Plaintiff, Plaintiff alleges the following: On August 24, 2014, Roshad McIntosh ("McIntosh") was on the 2800 block of West Polk Street in Chicago when a group of Chicago police officers, including Defendant Officers, arrived on the scene. (R.12, ¶ 9.) The officers jumped out of their vehicles and drew their guns, pointing them at McIntosh and others. (Id., ¶ 10.) The officers chased McIntosh into the backyard of a nearby residence. (Id., ¶ 11.) Although McIntosh was unarmed and surrendered, Defendant Slechter fired several gunshots at him, killing him without cause or provocation. (Id., ¶ 12.) Defendants Sampim, Zodo, and Bowery did nothing to assist McIntosh or prevent the shooting. (Id., ¶ 13.) Plaintiff further alleges that, in order to cover up their misconduct, Defendant Officers completed false and incomplete official reports and gave a false and incomplete version of the events to certain superiors and the public, and falsely claimed that McIntosh placed them in imminent fear of bodily harm. (Id., ¶ 14.) McIntosh's minor son, hisheir, his family, and his community, have suffered grief, injury, pain and suffering, mental distress, loss of love, affection, society, companionship, consortium, and expenses, as well as other injuries as a result of McIntosh's death. (Id., ¶ 15.)

II. Monell Allegations

In Count II of her First Amended Complaint, Plaintiff alleges that Defendant City and its police department, Superintendents, Independent Review Police Authority ("I.P.R.A."), Internal Affairs Division ("I.A.D."), Personnel Division and/or Police Board had interrelated de facto policies, practices, and customs which include: (1) failure to properly hire, train, supervise, discipline, transfer, monitor, counsel and/or otherwise control police officers who commit acts of excessive force; (2) police code of silence; (3) encouragement of excessive and unreasonable force; (4) failure to properly investigate shootings of civilians; (5) failure to properly discipline, monitor, counsel and otherwise control Chicago police officers who engage in unjustified shootings; and/or (6) failure to properly train and supervise Chicago police officers with regard to discharging weapons at civilians. (See R.12, ¶ 23.) Plaintiff further alleges that these policies, practices, and customs "both individually and together, were maintained and implemented with deliberate indifference, and encouraged the Defendant [O]fficers to commit the aforesaid acts against Roshad McIntosh and therefore acted as the moving force and were, separate and together, direct and proximate causes of the injuries to Roshad McIntosh and his Estate." (Id., ¶¶ 38, 39.) These policies, practices, and customs, as Plaintiff alleges, also encouraged "the unreasonable shooting of Black men, police misconduct, the fabrication of evidence, the intimidation of witnesses, and the making of false statements and reports, and the code of silence and were, separately and together, the moving force and a direct and proximate cause of theunconstitutional acts committed by the Defendants in this case and the injuries sustained by Roshad McIntosh and his Estate." (Id., ¶ 40.)

LEGAL STANDARD

I. Defendant Officers' Partial Motion to Dismiss - Rule 12(b)(6)

Defendant Officers move to dismiss Plaintiff's First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See R.10. "A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 12(b)(6), a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Put differently, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A district court's analysis under Rule 12(b)(6) "rests on the complaint, and [the court] construe[s] it in the light most favorable to the plaintiffs, accepting as true all well-pleaded facts alleged and drawing all permissible inferences in their favor." Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763 F.3d 696, 700 (7th Cir. 2014); see also Teamsters Local Union No. 705 v. Burlington N. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014); Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013). "[T]he complaint must supply 'enough fact[s] to raise a reasonable expectation that discovery will reveal evidence' supporting the plaintiff's allegations." Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (quoting Twombly, 550 U.S. at 556). "A claim must be plausible rather than merely conceivable or speculative, meaning that the plaintiff must include 'enough details about the subject-matter of the case to present a story that holds together.'" Carlson v. CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014) (citations omitted). A plaintiff's pleadingburden "should be commensurate with the amount of information available" to him. Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1100 (7th Cir. 2015).

II. Defendant City's Motion to Bifurcate and Stay Trial and Discovery - Rule 42(b)

Federal Rule of Civil Procedure 42(b) authorizes a district court to order separate trials of any claim or issue "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy ... always preserving inviolate the right of trial by jury." Fed. R. Civ. P. 42(b); see also Chlopek v. Fed. Ins. Co., 499 F.3d 692, 700 (7th Cir. 2007). When determining whether to bifurcate discovery or trial, the Court "must balance considerations of convenience, economy, expedition, and prejudice, depending on the peculiar facts and circumstances of each case." Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008). Whether to bifurcate trial is a decision made on a case-by-case basis and committed to the sound discretion of the district court. See Volkman v. Ryker, 736 F.3d 1084, 1088-89 (7th Cir. 2013); Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000). While separation of issues should not be customary, "it is important that it be encouraged where the experience has demonstrated its worth." Ojeda-Beltran v. Lucio, No. 07 C 6667, 2008 WL 2782815, at *1 (N.D. Ill. July 16, 2008) (citations omitted).

ANALYSIS

I. Defendant Officers' Partial Motion to Dismiss

A. Plaintiff's Wrongful Death, Survival, and Funeral Expense Claims Are Sufficiently Pled

The Illinois Wrongful Death Act provides a cause of action, "[w]henever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof." 740 ILCS 180/1; Williams v. Manchester, 228 Ill.2d 404,320 Ill. Dec. 784, 888 N.E.2d 1, 10 (2008) ("An injury resulting from the wrongful act, neglect, or default of another gives the victim, if she survives the injury, a right of action; if the victim dies, the [Wrongful Death] Act transfers the right of action to the victim's personal representative").

Defendant Officers do not argue that Plaintiff's allegations fail to establish a wrongful death claim. Instead, they argue that the Illinois Local Government and Governmental Employees Tort Immunity Act ("Immunity Act") shields them from liability because Plaintiff seeks to hold Officers Sampim, Zodo, and Bowery liable for failing to intervene and prevent the shooting of...