Novick v. Vill. of Bourbonnais

695 F.Supp.3d 1011

Alexis NOVICK, individually andas administrator of the Estate of Ruth Ann Menz, deceased, Plaintiff, v. VILLAGE OF BOURBONNAIS,an Illinois municipal corporation, et al., Defendants.

Case No. 22-cv-02259

United States District Court, C.D. Illinois, Springfield Division

Signed September 29, 2023

Michael David Ettinger, I, Alexander Albert Michael, Michael Ettinger & Associates, Palos Heights, IL, Clark Erickson, Attorney at Law, Kankakee, IL, for Plaintiff Alexis Novick.

Michael David Ettinger, I, Alexander Albert Michael, Michael Ettinger & Associates, Palos Heights, IL, Clark Erickson, Attorney at Law, Kankakee, IL, Lawrence S. Beaumont, I, Chicago, IL, for Plaintiffs Ruth Ann Menz, Ruth Ann Menz Lawrence Beaumont.

Brian Patrick Gainer, Aleeza Fatima Mian, Lisa Marie McElroy, Samuel D. Branum, Johnson & Bell Ltd, Chicago, IL, for Defendants Village of Bourbonnais, Officer Garcia, Jim Phelps, Officer Cavender, Officer Bertrand.

OPINION

COLLEEN R. LAWLESS, United States District Judge:

Plaintiff Alexis Novick ("Plaintiff") brings this Complaint individually and as the administrator of the Estate of Ruth Ann Menz ("Ruth") pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1988, and other related Illinois state laws for an incident that occurred on July 10, 2022. (Doc. 1). Before the Court is Defendant Village of Bourbonnais's (the "Village") and Defendants Chief Jim Phelps, Officer Garcia, Officer Cavander, Officer Bertrand¹, and John and Jane Does, unknown officers, agents, servants, or employees of the Bourbonnais Police Department (together, "Defendants") Partial Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). (Doc. 17). For the reasons that follow, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND

Prior to her untimely death, Ruth was a resident of the Village of Bourbonnais, Kankakee County, Illinois, and lived with her husband, Larry Menz, Jr. ("Larry"). (Doc. 1 at ¶ 4). Plaintiff is the only child of Ruth and Larry and is a resident of the State of Georgia. (Id. at ¶ 5). Plaintiff was appointed as the administrator of Ruth's Estate by order of the Circuit Court of the Twenty-First Judicial Circuit of Illinois on November 10, 2022. (Id.).

Ruth lived with Larry in a single-family home in the Village of Bourbonnais for 20 years. (the "Cherokee Drive house"). (Id. at ¶ 12). Larry's father, Larry Menz, Sr. ("Larry Sr."), owned and operated a towing company with Larry within the Village. (Id. at ¶¶ 13). The Menz's towing company had a contract with the Village and the Bourbonnais Police Department to provide towing services. (Id. at ¶ 14). Because of this association, Larry Sr., Larry, and the Bourbonnais Police Department maintained a professional and personal relationship. (Id. at ¶¶ 14-15). This familiarity extended to the Defendants' knowledge of the lengthy history of domestic disturbances and Larry's propensity for domestic violence against Ruth within the Cherokee Drive house. (Id.).

Defendant Village of Bourbonnais (the "Village") is an Illinois municipal corporation organized into various departments, including the Bourbonnais Police Department. (Id. at ¶¶ 6-11). At all relevant times, Defendant Phelps was employed by the Village as the Chief of the Bourbonnais Police Department. Officers Garcia, Cavander, and Bertrand were the responding officers to the domestic violence incident at Cherokee Drive house on July 10, 2022.

On August 26, 2019, Larry was charged by the Bourbonnais police with domestic battery of Ruth in Kankakee County Case No. 19 CM 711 ("Domestic 1"). (Id. at ¶ 16). As a result, a criminal order of protection ("COP") was issued prohibiting Larry from living in or coming within 500 feet of Ruth or the Cherokee Drive house. (Id.). While Domestic 1 was still pending, Larry was charged with domestic battery of Ruth in Kankakee County Case No. 21 CM 542 ("Domestic 2"). (Id. at ¶ 17). On July 10, 2022, both criminal cases were pending, and the COP was in full force and effect. (Id. at ¶ 18).

Plaintiff alleges that the officers in the Bourbonnais Police Department, including the Officer Defendants, were aware of the two pending criminal cases against Larry for domestic violence against Ruth, as well as the COP prohibiting any contact by Larry with Ruth or the Cherokee Drive house. (Id. at ¶ 19).

Between approximately 11:15 and 11:30 p.m. on July 10, 2022, Ruth's neighbor, Mahmoud Hijab ("Mahmoud"), heard loud screaming coming from outside the Cherokee Drive house and a woman begging for help. (Id. at ¶ 22). Mahmoud grabbed his gun and approached the Cherokee Drive house, recognizing Larry violently dragging a bloodied Ruth out of the front door by her face and neck (Id. at ¶ 23-27). In an attempt to help Ruth, Mahmoud yelled at Larry, who told Mahmoud it was none of his business. (Id.). Mahmoud called the police, relayed his observations, and specifically emphasized the violent nature of the altercation. (Id. at ¶¶ 29-30).

Officer Garcia of the Village of Bourbonnais Police Department arrived five minutes later and Officers Bertrand and Cavander arrived on scene shortly thereafter. (Id. at ¶ 31, 33, 34). Mahmoud informed all three Officers that Ruth was being violently beaten, visibly seriously injured, and he believed Larry was going to kill her if there was not police intervention. (Id. at ¶ 32, 33).

Officer Garcia approached the Cherokee Drive house and attempted to communicate with Larry through a serious of questions, but Larry refused to communicate or cooperate with Officer Garcia and walked into the garage, closing the door behind him. (Id. at ¶¶ 35-36). The officers made multiple attempts to knock on Ruth's door, but Larry refused to answer and locked the doors to the house. (Id. at ¶ 37). Officers Garcia, Bertrand, and Cavander discussed the situation with Chief Phelps via a telephone call. (Id. at ¶ 39). Instead of arresting Larry for violating the order of protection, Chief Phelps advised the Officers that it was the policy and/or prudent course of action to contact Larry Sr. and seek his help to handle this type of situation. (Id.).

The Officers called and spoke to Larry Sr. while they were still at the home. (Id. at ¶¶ 41-45). Larry Sr. told the officers he would "handle it." (Id.). Upon receiving this information, Chief Phelps instructed the Officers to leave the scene. (Id. at ¶ 48). Prior to leaving the scene, the Officers told Mahmoud they did not have probable cause to enter the Cherokee Drive house. (Id. at ¶ 49). While still at the home, one of the officers stated that they would "call off and wait for tomorrow and pray to God he doesn't do anything." (Id. at ¶ 46).

The next morning, on July 11, 2022, the Officers arrived at the Cherokee Drive house with a SWAT team. (Id. at ¶ 52). Ruth was found dead inside the house, murdered by Larry, who subsequently committed suicide. (Id. at ¶¶ 51-53). After the bodies were discovered, Chief Phelps made a public statement that the situation was handled in accordance with proper Village policy. (Id. at ¶ 54).

On November 29, 2022, Plaintiff filed the instant Complaint alleging the following claims against Defendants: Count I - Section 1983 Civil Rights Claim; Count II - Failure to Intervene; Count III - Monell Custom Policy and Practice; Count IV - Indemnification, brought pursuant to state law; Count V - Gross Negligence/Recklessness, brought pursuant to state law; Count VI - Willful and Wanton Conduct, brought pursuant to state law; Count VII - Wrongful Death, brought pursuant to the Illinois Wrongful Death Act; Count VIII - Violation of the Illinois Domestic Violence Act; Count IX - Violation of Due Process; Count X - Violation of Equal Protection; and Count XI - Survival Act, brought pursuant to state law. (See Doc. 1 at ¶¶ 56-138).

On January 30, 2023, Defendants filed their Partial Motion to Dismiss Counts I, II, III, IX, and X of the Complaint, pursuant to Rule 12(b)(6), on the basis that these counts fail to state claim upon which relief may be granted. (Doc. 17). Defendants assert the non-enforcement of an order of protection is not a constitutional violation and the Officers have no duty to prevent criminal conduct of a non-state actor. (Id. at 4-7.) Defendants argue the Monell doctrine does not apply to Plaintiff's claim. (Id. at 7; 9-13)

On February 28, 2023, Plaintiff filed her Response to Defendants' Partial Motion to Dismiss. (Doc. 19). Plaintiff argues Defendants had a statutorily created duty to act, in part due to the danger enhanced by Officer Defendants' conduct which "shock the conscience." (Id. at 2; 6; 9). Plaintiff maintains the factual allegations outlined in the Complaint sufficiently allege that Defendant Chief was the final policymaker who established the common policy or practice that led to Ruth's death. (Id. at 13-15).

II. LEGAL STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing she is entitled to relief and giving the defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The court "construe[s] the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [his] favor." Id. A plausible claim is one that alleges factual content from which the court can reasonably infer that the defendants are liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient to state a cause of action. Id.

III. ANALYSIS

In their Partial Motion to Dismiss, Defendants move for the dismissal of Counts I, II, III, IX, and X of the Complaint, pursuant to Rule...