Bolyard v. Village of Sherman

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JEREMIAH BOLYARD, )

)

)

Plaintiff, )

)

v. ) No. 19-cv-3146

)

CHRIS FULSCHER, )

JOHN TURASKY, )

NICK BYERLINE, )

and THE VILLAGE OF SHERMAN, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss

(d/e 11) filed by Defendants Chris Fulscher, John Turasky, Nick

Byerline, and Village of Sherman. Because the challenged counts

of the Complaint state claims for relief, Defendants’ Motion to

Dismiss is DENIED.

I. BACKGROUND

On June 4, 2019, Plaintiff Jeremiah Bolyard filed an eight-

count Complaint against the Village of Sherman and Village of

Sherman police officers Chris Fulscher, John Turasky, and Nick

Byerline. Plaintiff’s Complaint (d/e 1) alleges five federal claims

pursuant to 42 U.S.C. § 1983, and one state law claim for

malicious prosecution, against Defendants Fulscher, Turasky, and

Byerline in their individual capacities (Counts I through VI). Count

VII alleges that Defendant Village of Sherman is liable for the three

individual Defendants’ malicious prosecution of the Plaintiff under

the doctrine of respondeat superior, insofar as said prosecution

constituted a tort under Illinois state law. Count VIII alleges that

Defendant Village of Sherman must indemnify the three individual

defendants for any compensatory damages pursuant to the Illinois

Tort Immunity Act, 745 ILCS 10/9–102. Plaintiff’s claims all stem

from a series of encounters between Plaintiff and members of the

Village of Sherman Police Department taking place between March

27, 2018 and May 11, 2018.

On September 4, 2019, Defendants jointly filed a motion to

dismiss all of Plaintiff’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6) (d/e 11).

II. LEGAL STANDARD

A motion under Federal Rule of Civil Procedure 12(b)(6)

challenges the sufficiency of the complaint. Christensen v. Cnty. of

Boone, 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 he is entitled to relief and giving the defendant

fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074,

1081 (7th Cir. 2008).

When considering a motion to dismiss under Rule 12(b)(6),

the Court construes the complaint in the light most favorable to

the plaintiff, accepting all well-pleaded allegations as true and

construing all reasonable inferences in plaintiff’s favor. Id.

However, the complaint must set forth facts that plausibly

demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 547 (2007). A plausible claim is one that alleges facts

from which the Court can reasonably infer that the defendants are

liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,

678 (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. FACTS ALLEGED IN THE COMPLAINT

In evaluating the defendants’ motion to dismiss, the Court

accepts the factual allegations of Plaintiff’s complaint as true and

makes every reasonably available inference in favor of Plaintiff.

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The

facts set forth below are therefore assumed to be true.

As of March 27, 2018, Plaintiff Jeremiah Bolyard was or had

been engaged in a “contentious divorce and custody battle” with

his ex-wife. Complaint (d/e 1), at ¶ 8. Sometime before March

27, 2020, Plaintiff and his wife agreed that they would exchange

custody of Plaintiff’s minor daughter at the Sherman police station

by parking on opposite sides of the station and having a police

officer walk their daughter from one car to the other. See id. at ¶¶

9–11. On more than one occasion before March 27, 2018,

Defendant Fulscher expressed hostility to Plaintiff during these

custody exchanges by directing “snide remarks” towards him. Id.

at ¶ 13.

On March 27, 2018, during a custody exchange in front of

the Sherman police station, Defendant Fulscher accused Plaintiff

of having a firearm either on his person or in his car. Id. at ¶¶ 17–

18. Defendant Fulscher ordered Plaintiff to stand facing his

vehicle, patted him down, and searched his vehicle, finding no

evidence of any criminal activity on Plaintiff’s person or in

Plaintiff’s vehicle. Id. at ¶¶ 15–18. After the search of his person

and vehicle, Plaintiff attempted to leave, but he was prevented from

leaving by Defendant Fulscher. Id. at ¶ 27.

Another encounter took place between Defendants Byerline,

Turasky, and Fulscher and Plaintiff Bolyard at a custody exchange

on May 11, 2018. See id. at ¶¶ 32–55. During this encounter,

Plaintiff followed the instructions given by the individual

Defendants and did not contradict or act belligerently towards

them. On May 14, 2018, Defendant Fulscher asked Defendant

Turasky to obtain a warrant for Plaintiff’s arrest, despite the fact

that neither officer had any reason to believe that Plaintiff had

violated any law during the May 11 encounter. See id. at ¶ 58. On

the same day, Defendant Turasky signed a criminal complaint

against Plaintiff for resisting a police officer, falsely alleging that

Plaintiff had disobeyed Defendant Turasky’s orders and behaved

confrontationally at the May 11 custody exchange. See id. at ¶ 56.

Defendant was arrested and tried in state court for resisting a

police officer, and was acquitted. See id. at ¶¶ 60–61.

IV. ANALYSIS

A. The Court Will Not Review Video of the March 20 and

March 27 Custody Exchanges Before Evaluating

Defendants’ Motion to Dismiss.

Defendants seek to introduce video evidence that, they assert,

“irrefutably” proves the reasonableness of searches conducted by

one or more of the Defendants on March 20 and 27 by showing

that Defendant verbally consents to be searched. Motion (d/e 11),

at 2. Generally, a court deciding a motion to dismiss pursuant to

Rule 12(b)(6) may not consider any extrinsic evidence that is not

attached to the complaint—but an exception exists for evidence

that is “critical to the [plaintiff's] complaint and . . . referred to in

it.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir.

2012). The videos that Defendants seek to introduce are not

referred to in Plaintiff’s complaint, although one video may contain

footage of an incident (the March 27 custody exchange) that is

central to Plaintiff’s § 1983 claims.

In 2013, the Northern District of Illinois in Hyung Seok Koh v.

Graf considered a video recording not mentioned in Plaintiff’s

complaint of a police interrogation to determine, for purposes of

deciding a motion to dismiss, whether the videotape clearly

contradicted certain factual assertions central to the statement of

Plaintiff’s claim. See No. 11-CV-02605, 2013 WL 5348326, at *9

(N.D. Ill. Sept. 24, 2013). To the extent that such consideration is

ever permissible at the 12(b)(6) stage,1 a court may review the

video evidence only to discern whether it “clearly contradicts” one

or more factual claims from the complaint that are relevant to the

issue of whether the nonmoving party has adequately stated a

claim. See Jackson v. Curry, 888 F.3d 259, 264 (7th Cir. 2018)

(distinguishing Scott v. Harris, 550 U.S. 372 (2007), on the basis

that the video in that case had “definitively contradicted the

essence and essential details of respondent's account”). Where a

video provides evidence—even highly relevant evidence—that does

not “clearly contradict” a central factual claim of the complaint in a

1 The Supreme Court precedent on which the court in Koh relies

dealt with summary j udgment under Rule 56 rather than dismissal

under 12(b)(6). See Scott v. Harris, 550 U.S. 372 (2007); see also

Sanchez v. Vill. of Wheeling, 447 F. Supp. 3d 693, 703 (N.D. Ill.

2020) (“[I]t is doubtful that video evidence outside the pleadings

can be deployed to dismiss a claim under Rule 12(b)(6) where, as

here, the complaint alleges facts sufficient to support the claim.”).

way that will be “readily ascertainable,” a court will not review it

for purposes of deciding a 12(b)(6) motion. See Jackson v. City of

Peoria, No. 416CV01054SLDJEH, 2017 WL 1224526, at *5 n.4

(C.D. Ill. Mar. 31, 2017) (declining to consider video of police

interview to draw inferences about whether the interviewee was

intoxicated).

Here, Plaintiff’s Complaint does not allege that Plaintiff

refused to verbally consent to a search, but rather that “[t]here was

no probable cause or any other legal justification to search

Plaintiff.” Complaint (d/e 1), at ¶ 25. While a video recording of

Plaintiff consenting to a search would likely be highly relevant to

the disposition of his unreasonable search and seizure claims at

the summary judgment stage, such a video would not “clearly

contradict” any allegation in the complaint. Nor is Plaintiff’s

consent to a search enough, standing alone, to establish as a

matter of law that Defendant Fulscher’s search was “reasonable.”

The question of whether an unreasonable search occurred in a

given instance where the searched party verbally consented to the

search depends on whether “the consent was freely and voluntarily

given”—and this question is a quintessentially fact-dependent one,

requiring a nuanced and holistic “totality of the circumstances”

evaluation. Huff v. Reichert, 744 F.3d 999, 1008 (7th Cir. 2014).

At this procedural juncture, therefore, the Court declines to

consider any extrinsic evidence that is not attached to or

referenced in the Complaint.

B. Count I States an Unreasonable Seizure Claim

For a § 1983 claim against a given defendant to survive a

motion to dismiss, the plaintiff must plausibly allege that the

identified defendant was personally responsible for the claimed

deprivation of an established constitutional right. Duncan v.

Duckworth, 644 F.2d 653, 655 (7th Cir. 1981).

Here, Plaintiff alleges that Defendant Fulscher seized him

without probable cause to believe that he had committed a crime

on March 27, 2018. Complaint (d/e 1), at ¶¶ 15–25. Plaintiff’s

allegation that “[t]here was no probable cause or any other legal

justification to search Plaintiff” is a conclusory legal claim, which

the Court is not obliged to assume the truth of even in the context

of a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Still, Plaintiff also alleges some specific facts (he was

ordered to stand with his face to his vehicle, he was physically

patted down, he attempted to leave but was stopped) that, when

viewed in the light most favorable to Plaintiff, adequately state a

claim for unreasonable seizure in violation of his Fourth

Amendment rights. See Martin v. Marinez, 934 F.3d 594, 603 (7th

Cir. 2019) (holding that plaintiff could recover damages for the

injury to his privacy from unlawful seizure where police officer

stopped his car without probable cause and seized him for a “brief”

period).

C. Count II and III State Unreasonable Search Claims

Plaintiff also alleges sufficient facts to state claims against

Defendant Fulscher for unreasonable searches of Plaintiff’s person

and vehicle. Unreasonable searches—including unreasonable “pat-

down” searches and unreasonable vehicular searches—deprive the

searched person of an established right to privacy. See United

States v. Barnett, 505 F.3d 637, 639 (7th Cir. 2007) (holding that a

pat-down search is a cognizable Fourth Amendment violation when

“no reasonably prudent man would be warranted in the belief that

his safety or the safety of others was in danger”); Huff v. Reichert,

744 F.3d 999, 1010 (7th Cir. 2014) (holding that a vehicle search

is unreasonable and gives rise to cognizable Fourth Amendment

injury when no reasonable articulable suspicion of criminal

behavior exists).

Here, reasonable inferences that can be drawn from the facts

alleged in the Complaint include the inference that Defendant

Fulscher patted down Plaintiff without having any reason to believe

that Plaintiff was a threat to anyone’s safety, and searched

Plaintiff’s vehicle unreasonably without any reason to suspect that

Plaintiff had any contraband inside. See Complaint (d/e 1), at

¶¶ 24–28. Thus, Counts II and III state cognizable claims for

violations of Plaintiff’s Fourth Amendment right to be free from

unreasonable searches.

D. Count IV States a Claim for False Arrest

Count IV of Plaintiff’s complaint alleges that Defendants

Fulscher and Turasky committed a “Fourth Amendment violation”

when they caused the arrest of Plaintiff on May 15, 2018. Taking

all of the factual allegations in the Complaint as true, and making

all reasonable inferences in Plaintiff’s favor, the Complaint alleges

that Defendants Fulscher and Turasky each acted in a way that

they “knew or reasonably should have known” would “cause others

to deprive plaintiff of constitutional rights.” Marshall v. Fries, No.

19 C 55, 2019 WL 4062549, at *3 (N.D. Ill. Aug. 28, 2019) (holding

that § 1983 claim for false arrest was adequately alleged against

defendant who allegedly caused arrest of plaintiff where no

probable cause existed). If, as the Complaint alleges, Defendants

Fulscher and Turasky caused Plaintiff to be arrested, and if there

were no warrant or probable cause for said arrest, Defendants

Fulscher and Turasky would be liable for depriving Plaintiff of his

Fourth Amendment right to be free of unreasonable seizures.

E. Count V States a Claim for Civil Conspiracy

In Count IV, brought pursuant to 42 U.S.C. § 1983, Plaintiff

alleges that Defendants Turasky, Fulscher, and Byerline, acting in

concert, reached an agreement to deprive Plaintiff of his

constitutional rights as described in the Complaint. Complaint

(d/e 1), at ¶¶ 79–83; see id. at ¶¶ 56–62. Plaintiff alleges that the

three officers, acting in concert, reached an agreement to deprive

Plaintiff of his constitutional rights by arresting and detaining him

without probable cause or a warrant. Id. at ¶¶ 80–82; see id. at

¶¶ 32–55, 56–61. The Defendants argue that, if the substantive

claims under Section 1983 fail to state a claim, the conspiracy

claims upon which they are based must also be dismissed. See

Motion (d/e 11), at 11. However, because the Court has found

that the substantive counts state a claim, the Court will not

dismiss Counts V on this ground.

F. Supplemental Jurisdiction Over Plaintiff’s State Law

Claims Exists

Defendants also argue that Counts VI, VII, and VIII, all of

which state claims for relief under state law, should be dismissed

for lack of jurisdiction if Plaintiff’s § 1983 claims are dismissed for

failure to state a claim. Since the Court has not dismissed

Plaintiff’s § 1983 claims, supplemental jurisdiction over the state

law claims exists under 28 U.S.C. § 1367.

V. CONCLUSION

For the reasons stated, Defendants’ Motion to Dismiss

(d/e 11) is DENIED.

ENTERED: November 23, 2020

FOR THE COURT:

s/Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE