Turner v. M.B. Fin. Bank

TINA TURNER and JAMES GARNER, Plaintiffs, v. M.B. FINANCIAL BANK, et al., Defendants.

Case No. 14-cv-9880

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 3, 2017

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant M.B. Financial Bank's motion to dismiss [92], Defendant Digby's Detective & Security Agency, Inc.'s motion to dismiss [102], and Defendants City of Chicago, Chicago Police Officer V. L. Wathen (Star #19653), and Chicago Police Officer E. E. Kujawa (Star #9325)'s motion to dismiss [93]. For the reasons set forth below, Defendant M.B. Financial's motion [92] and Digby's motion [102] are granted, and Defendants City of Chicago, Officer Wathen, and Officer Kujawa's motion [93] is granted in part and denied in part. This case is set for further status on October 19, 2017, at 9:30 a.m.

I. Background

Plaintiffs Tina Turner and James Garner lived next to a local branch of M.B. Financial Bank, located near Sherman Park in Chicago, Illinois. [86, ¶¶ 11, 12.] M.B. Financial "contracted with Digby's Detective & Security Agency, Inc." ("Digby") to provide "armed security guard services" for its branches, and Digby stationed Andre Lamb as a security guard at the Sherman Park branch on October 30, 2013. Id. ¶¶ 8, 13. At approximately noon that day, Plaintiff Turner was approached by Defendant Lamb while Plaintiff was in the alley between her home and the bank branch. Id. ¶ 10. Plaintiffs allege that Lamb "ran off Bank property and into the alley and aimed a gun at Turner's head, shouting, 'Don't you f*cking move or I'll blow your brains out.'" Id. ¶ 14. Lamb then grabbed Turner; dragged her by the arms and body out of the alley "toward the public sidewalk"; yelled, "I'm taking you inside the Bank"; "violently attacked" Turner on the ground; "and pulled her arms behind her back to restrain her." Id. ¶¶ 16, 17. During these events, Plaintiff Garner allegedly walked outside the house and yelled at Lamb to release Turner. Id. ¶ 18. Lamb then "slammed Turner to the ground and used his fully body weight to restrain Turner" as Bank employees watched. Id. ¶¶ 19, 20.

"Several minutes later," an unidentified "White-Shirt Officer" arrived and then "violently jerked Turner's arms backwards and yelled at her to 'get up.'" [86, ¶¶ 22-25.] Turner alleges that she did not resist—indeed, she could not because Defendant Lamb was still "sitting on her." Id. ¶ 28. "The White-Shirt Officer then handcuffed Turner's hands behind her back," and Defendant Lamb got up from sitting on her. Id. ¶ 30. Defendants Officer V. L. Wathen, Officer E.E. Kujawa, and other officers "arrived on the scene during the course of the struggle." Id. ¶ 31. Turner complained that she needed medical attention, but was placed in a patrol car for 30 minutes. Id. ¶ 32. She was ultimately taken to a hospital and released back into police custody, after which she was charged with misdemeanor offenses, including battery and littering. Id. ¶ 34. Eventually, these charges were dismissed. Id. Plaintiffs contend that these actions were taken in retaliation for unrelated lawsuit that Plaintiffs had filed against the City of Chicago, several officers, and M.B. Financial nearly a year earlier. Id. ¶¶ 35-36.

Based on these events, Plaintiffs filed this lawsuit in December 2014. Plaintiffs proceeded on their own for more than a year. After an arrangement with prospective counsel fell through [see 60], Plaintiffs filed a motion for recruitment of counsel in March 2016. The Court granted the motion, and through counsel Plaintiffs filed a third amended complaint in November2016 asserting thirteen claims against eight defendants, including the City of Chicago. [86.] Plaintiffs pursue claims under 42 U.S.C. § 1983 for excessive force, false arrest, and conspiracy, as well as state law claims for malicious prosecution, assault and battery, intentional infliction of emotional distress, respondeat superior, and indemnification. Defendants M.B. Financial, Digby, the City of Chicago, Officer Wathen, and Officer Kujawa filed three motions to dismiss [92; 93; 102]. The only named Defendant who did not move to dismiss is Defendant Lamb—likely because he has not entered an appearance. Many of the claims against these Defendants are derivative of the claims asserted against Defendant Lamb, and so Defendants challenge these underlying claims as well.

II. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level." E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all ofPlaintiffs' well-pleaded factual allegations and draws all reasonable inferences in Plaintiffs' favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

III. Analysis

This is Plaintiffs' fourth complaint. [See 1; 30; 33; 86.] Plaintiffs' original complaint, filed on December 9, 2014 [1], did not include the names of anyone who interacted with Plaintiffs on October 30, but instead referred to "unknown M.B. Bank Guard" and "Unknown Police Officer." Id. at 2, 4. The same was true of the first amended complaint filed on July 31, 2015, except that Plaintiffs alleged that the white-shirted police officer possibly named Jerome. [30, at 6 (referring to "European-American Male Chicago Police White-Shirted Lieutenant Defendant (Jerome?)").] The second amended complaint filed on August 11, 2015 also did not name these Defendants. The first time that Plaintiffs identified Defendants Lamb and Officers Wathen and Kujawa by name was the third amended complaint, filed on November 16, 2016 [86]. Several Defendants now move to dismiss on statute of limitations grounds, which the Court turns to first.

A. Statute of Limitations

Dismissal based on a statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c)(1). Nevertheless, a court can grant a motion to dismiss where a plaintiff pleads itself out of court by establishing that a defendant is entitled to a statute of limitations defense. See United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (explaining that dismissal is appropriate "where, as here, the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations."); accord Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674-75 (7th Cir. 2009) ("[D]ismissal is appropriate when the plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint's tardiness.").

"In Illinois, the statute of limitations period for § 1983 claims is two years." Draper v.Martin, 664 F.3d 1110, 1113 (7th Cir. 2011) (citing 735 Ill. Comp. Stat. Ann. 5/13-202). "[T]he claim accrues when the plaintiff knows or should know that his or her constitutional rights have been violated." Id. (citation and internal quotation marks omitted). Courts "use a two-step test to determine the accrual date: (1) we identify the injury and (2) we determine when the plaintiff could have sued for that injury." Id. When it comes to state law claims, "Illinois local governmental entities and their employees * * * benefit from a one-year statute of limitations for 'civil actions' against them." Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005) (quoting 745 Ill. Comp. Stat. 10/8-101(a)). State law personal injury claims against non-governmental employees, including for malicious prosecution, must be filed in two years. 735 Ill. Comp. Stat. Ann. 5/13-202. Plaintiffs assert federal and state law claims with different accrual dates against governmental and non-governmental employees. All of them are time-barred.

First, Plaintiffs assert Section 1983 claims against several police officers. Specifically, they allege that Defendant "White-Shirt Officer" used excessive force against Plaintiff Turner (Count I), this Defendant, Officers Wathen and Kujawa, and the other unidentified officers falsely arrested Plaintiff Turner (Count II), and all of these Defendants entered into "spontaneous agreement" with Defendant Lamb to conspire to violate Plaintiffs' constitutional rights (Count IV). [86, ¶¶ 39-52; 60-65.] Plaintiffs' injuries regarding these three claims occurred on October 30, 2013—the date of the alleged false arrest, excessive force, and "spontaneous" conspiracy. The statute of limitations for these claims began to run on this date as well. See Wallace v. Kato, 549 U.S. 384, 397 (2007) ("We hold that the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process."); Gonzalez v. Entress, 133 F.3d 551, 555 (7th Cir. 1998) ("Applicationof excessive...