Munn v. City of Aurora

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN MUNN, DARRELL MOORE, )

MARCO GOMEZ, ARMANDO )

MONTEMAYOR, ARTURO )

MONTEMAYOR, MICHAEL NILLES, )

LEONARD CASAMASSIMO, JAIMEE )

MOORE, CORENE CASAMASSIMO, )

CARLENE GOMEZ, LORENA )

MONTEMAYOR, MARY MONTEMAYOR, )

ARTURO MONTEMAYOR, SR., E.E., )

a minor, S.O., a minor, E.O., a minor, L.R., )

a minor, A.R., a minor, W.R., a minor, E.R., )

a minor, X.R., E.S., and A.S., a minor, )

)

Plaintiffs, )

) No. 17 C 5296

v. )

) Judge Sara L. Ellis

CITY OF AURORA, a municipal corporation, )

and JO ANN OSBERG, in her individual and )

official capacity, )

)

Defendants. )

OPINION AND ORDER

In response to an Illinois Freedom of Information Act (“FOIA”) request from an

incarcerated felon (“Felon”), Defendants City of Aurora and Jo Ann Osberg released the

personnel files containing the addresses, phone numbers, and social security numbers of the

police officers who participated in the investigation that led to his conviction and incarceration.

Plaintiffs John Munn, Darrell Moore, Marco Gomez, Armando Montemayor, Arturo

Montemayor, Michael Nilles, Leonard Casamassimo, Jaimee Moore, Corene Casamassimo,

Carlene Gomez, Lorena Montemayor, Mary Montemayor, Arturo Montemayor Sr., E.E.,a minor,

S.O., a minor, E.O., a minor, L.R.,a minor, A.R., a minor, W.R., a minor, E.R.,a minor, X.R.,

E.S., and A.S., a minor, are those police officers whose personnel files Defendant Osberg mailed

to the Felon as well as their family members. After discovering the release of this information,

Plaintiffs brought this civil rights action against the City of Aurora and Jo Ann Osberg, in both

her individual capacity and her official capacity as the FOIA Officer for the Aurora Police

Department, pursuant to 42 U.S.C. § 1983. Plaintiffs bring claims against the City of Aurora

and Osberg in her individual capacity for violation of their constitutional rights, as well as three

state law claims. Plaintiffs advance their constitutional claims (Count I against the City of

Aurora, Count II against Osberg in her individual capacity), pursuant to the Fourth and

Fourteenth Amendment, under both a state-created danger theory and a right to informational

privacy theory. Defendants move to dismiss the federal claims for failure to state a claim upon

which relief can be granted. Defendants further move to dismiss Count I for failure to properly

allege a Monell claim and to dismiss Count II on the basis of qualified immunity. Because

Plaintiffs have sufficiently met their pleading burden to survive a motion to dismiss, the Court

declines to dismiss Plaintiffs’ claims on these grounds. Thus, the Court denies Defendants’

motion to dismiss.

BACKGROUND1

In October 2015, Defendants responded to a FOIA request from the Felon. The Felon is

known to be associated with the upper levels of a particularly violent gang known as the “Latin

Kings.” The Officer Plaintiffs each participated in the investigation, which resulted in an 88-

year sentence for the Felon. Defendants mailed the FOIA response, which contained the Officer

Plaintiffs’ personnel files, to the Felon at the Menard Correctional Center. These personnel files

1 The facts in the background section are taken from Plaintiff’s Amended Complaint [37] and are

presumed true for the purpose of resolving Defendants’ motion to dismiss. See Virnich v. Vorwald, 664

F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d

779, 782 (7th Cir. 2007). Though Plaintiffs amended their complaint after the motion to dismiss was

briefed, they merely edited the names of some of the plaintiffs; the substance is the same as the original

complaint [1]. Thus, the briefing on the motion to dismiss still applies.

were “largely un-redacted.” Doc. 37 ¶ 18. The un-redacted information included the Officer

Plaintiffs’ names, home addresses, social security numbers, phone numbers, and information

pertaining to their family members. The Felon possessed this information until approximately

December 2016.

The Officer Plaintiffs discovered that Defendants revealed this information to the Felon

in late 2016, and subsequently filed this lawsuit. In approximately March 2017, the City of

Aurora conducted an audit of its FOIA response procedures and determined that this was not the

only time that the City of Aurora disclosed personal information in response to a FOIA request:

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not

its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-

pleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in

the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive

a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a

claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.

Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678.

ANALYSIS

I. State-Created Danger (Counts I and II)

Plaintiffs allege that Defendants violated their due process rights under a state-created

danger theory. Defendants argue that, because the Amended Complaint does not explicitly

mention this theory, the Court should not permit Plaintiffs to proceed on it. Defendants’

argument misstates the requirements of Rule 8. The Seventh Circuit has held that “the complaint

need not identify a legal theory, and specifying an incorrect theory is not fatal.” Bartholet v.

Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). Under Rule 8, plaintiffs need not

cite the law in their complaints; they are “merely required to relate sufficient facts to state a

plausible claim for relief under Twombly and Iqbal.” Escarzaga v. Bd. of Trs. of Cmty. Coll.

Dist. No. 508, No. 15 C 2568, 2015 WL 6445606, at *4 (N.D. Ill. Oct. 23, 2015). The fact that

Plaintiffs do not explicitly specify the state-created danger theory in their Amended Complaint

does not foreclose the potential of establishing such a claim, so long as they have pleaded

sufficient facts to establish such a claim.

The question then becomes whether Plaintiffs have pleaded sufficient facts to establish a

state-created danger claim. Defendants argue that Plaintiffs have not established the necessary

elements of this claim. Generally, “a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due Process Clause.” DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S. Ct. 998, 103 L. Ed. 2d 249

(1989). There are two narrow exceptions to the DeShaney rule: (1) when the state has a “special

relationship” with the person such as “when it has custody over a person, it must protect him

because no alternate avenues of aid exist,” and (2) under the state-created danger exception,

“‘liability exists when the state affirmatively places a particular individual in a position of danger

the individual would not have otherwise faced.’” Buchanan-Moore v. County of Milwaukee, 570

F.3d 824, 827 (7th Cir. 2009) (quoting Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998)).

For Plaintiffs to establish a claim under the state-created danger exception, (1) “the state,

by its affirmative acts, must create or increase a danger” to them, (2) “the failure on the part of

the state to protect [Plaintiffs] from such a danger must be the proximate cause” of their injury,

and (3) the state’s failure to protect Plaintiffs “must shock the conscience.” King ex rel. King v.

E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817–18 (7th Cir. 2007).

First, Plaintiffs must allege that the state either created or increased the danger to them.

“If the state puts a man in a position of danger from private persons and then fails to protect him,

it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if

it had thrown him into a snake pit.” Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982).

However, to create or increase danger “must not be interpreted so broadly as to erase the

essential distinction between endangering and failing to protect.” Doe v. Vill. of Arlington

Heights, 782 F.3d 911, 917 (7th Cir. 2015) (citation omitted) (internal quotation marks omitted).

Essentially, the Court must decide whether “the state did something that turned a potential

danger into an actual one, rather than that it just stood by and did nothing to prevent private

violence.” Sandage v. Bd. of Com’rs of Vanderburgh County, 548 F.3d 595, 600 (7th Cir. 2008).

Defendants argue that their actions releasing the personnel files only pose a potential

danger to Plaintiffs, not the actual danger necessary to state a claim. In support of their

argument, Defendants point to Sandage, where the Seventh Circuit held that the defendants’

failure to revoke an inmate’s work-release privilege after the plaintiffs’ decedents complained

that he was harassing them did not constitute a state-created danger. Id. at 596. In that case,

allowing the inmate to have work-release privilege perhaps posed some danger to the

community, in light of his conviction. But at that point, the danger posed to the plaintiffs’

decedents was merely potential. The defendants’ actions did nothing to specifically place the

plaintiffs’ decedents in danger, and it was the defendants’ inaction after the plaintiffs’ decedents

complained about the inmate (and were, at that point, in actual danger) that ultimately resulted in

their deaths. Here, Plaintiffs have alleged that the Defendants’ actions caused actual danger to

them. Plaintiffs allege that by placing the Officer Plaintiffs’ personnel files in the hands of the

Felon, whom they had helped put in prison for decades, Defendants placed the Plaintiffs in

danger.

Defendants perhaps confuse “danger” with whether the private actor needs to actually

commit harm to the Plaintiffs for a state-created danger theory to apply. If the government

throws an individual into a snake pit, and the individual is not harmed by the snakes, but hurts

himself escaping the pit, the government has still placed the individual in danger that has caused

the individual harm. For example, in White v. Rochford, the Seventh Circuit found that plaintiffs

had properly pleaded a state-created danger claim. 592 F.2d 381, 384–85 (7th Cir. 1979). There,

police officers arrested the plaintiffs’ uncle while he was driving the plaintiffs (three children),

and the officers left the children in the car on the side of the road on a cold night. Id. at 382. In

the process of removing themselves from the danger, the children “suffered mental pain and

anguish” and one child, an asthmatic, required hospitalization. Id. Similarly, Plaintiffs allege an

actual danger in that the Felon possessed the personnel files, containing personal, private

information, of the Officer Plaintiffs who helped put the Felon in prison. And they allege that

they have suffered actual injury while attempting to alleviate this danger, including installing

home electronic security systems and even relocating. See Doc. 37 ¶ 24. For these reasons, the

Court does not find Defendants’ argument that Plaintiffs are only in potential danger persuasive.

This discussion blurs into Defendants’ second argument, which is that, to the extent any

danger is present, they did not create or increase it. Again, the question is whether Defendants’

actions placed Plaintiffs in danger. According to Defendants, this is the type of danger that

Plaintiffs signed up for when the Officer Plaintiffs became police officers. See Witkowski v.

Milwaukee County, 480 F.3d 511, 513 (7th Cir. 2007) (“[S]omeone who chooses to enter a snake

pit or a lion’s den for compensation cannot complain.”). Witkowski involved a deputy sheriff

who sued after being shot on duty when two fellow deputies failed to take security precautions

(previously determined necessary) against the shooter. Id. at 511–12. The Seventh Circuit found

that the injured deputy sheriff had volunteered for the danger when he became an officer, and

thus the danger was not state-created. Id. at 513. The present facts are different from Witkowski.

The officers involved here were not on duty when the alleged danger occurred. More

importantly, unlike Witkowski, where the defendants did nothing to aid the shooter in obtaining

the gun and discharging it in the plaintiff’s direction, Plaintiffs in this case allege that Defendants

essentially helped the Felon take his first step towards harming them. It is plausible that the

information that Defendants provided to the Felon in the Officer Plaintiffs’ personnel file could

be used to harm Plaintiffs.2 Moreover, the danger associated with the Felon, who has ties to the

upper levels of a violent gang and clear reason for animus against the Plaintiffs, possessing this

type of information is apparent. The Sixth Circuit agrees: in Kallstrom v. City of Columbus, it

considered a case where the city turned over personnel files of police officers to the legal defense

team of a violent gang member whom the officers helped send to jail (the files were then passed

2 Defendants contend that the information contained in the Officer Plaintiffs’ personnel files is already

public, and so to the extent that Plaintiffs faced any danger from the Felon, it was unchanged by the

release of the un-redacted personnel files. See Doc. 26 at 8; Doc. 20-1. At this stage in the litigation, the

Court is confined to the allegations in the Amended Complaint. Based on those allegations, the Court

finds it plausible that the information contained in the personnel files could have significantly contributed

to the security threat that officers faced.

on to the gang member) and held that the city’s actions “substantially increased the officers’ and

their families’ vulnerability to private acts of vengeance.”3 136 F.3d 1055, 1067 (6th Cir. 1998)

(cited approvingly by Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998)). The facts of the

case are virtually the same as the facts alleged here. Thus, Plaintiffs have adequately pleaded

this aspect of their claim.

Second, Plaintiffs must allege that Defendants’ failure to protect them from the danger

proximately caused their injury. Defendants do not address whether Plaintiffs have met this

element, and so the Court treats it as adequately alleged.

Finally, Defendants’ actions must shock the conscience. Mere negligence, or even gross

negligence, does not rise to the level of a constitutional violation. McDowell v. Vill. of Lansing,

763 F.3d 762, 766 (7th Cir. 2014). At the least, the state must act with deliberate indifference.

Id. Cases that establish a claim under the state-created danger theory are “rare and often

egregious.” Doe, 782 F.3d at 917 (citation omitted) (internal quotation marks omitted). The

courts have determined that articulating exactly what qualifies as an act that shocks the

conscience “has proven difficult,” McDowell, 763 F.3d at 766, and so it is instructive to consider

the facts underlying other cases where the courts have found a constitutional violation. See, e.g.,

Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012) (police arrested mentally ill woman in a safe

neighborhood and released her in a significantly more dangerous neighborhood, where she was

physically and sexually assaulted); Monfils, 165 F.3d at 520 (despite their assurances that they

would not provide his identity, police provided tape of informant’s report to those against whom

3 Defendants attempt to undermine Kallstrom with Hart v. City of Little Rock, yet another § 1983 case

brought by police officers against their city for releasing their personnel files to the legal defense team of

a felon against whom they had helped bring charges (the personnel files eventually made their way to the

felon). 432 F.3d 801, 803 (8th Cir. 2005). This attempt is unpersuasive: though the Eighth Circuit

ultimately decided on other grounds that the city should have been granted judgment as a matter of law, it

“assume[d] without deciding that [the city’s] release of [the police officers’] personnel files created

sufficient danger to implicate constitutionally protected privacy interests.” Id. at 805.

he informed, who then took their revenge by murdering the informant); Kallstrom, 136 F.3d at

1067 (city provided police officers’ personnel files to the legal defense team of a violent gang

member whom the officers had helped put in prison). But see McDowell, 763 F.3d at 766–67

(officer responding to a multiple person altercation ordered everyone to get on the ground and

then failed to prevent one of the men who complied from being kicked in the head by a man who

did not comply).

Monfils and Kallstrom are most helpful here. In both cases, the defendants provided the

dangerous private actors with information to aid them in retaliating against the plaintiffs (or the

plaintiffs’ decedent). Kallstrom, as mentioned above, is directly on point with the facts present

in this case. Moreover, the cases in which the courts declined to allow a state-created danger

claim to proceed because it did not meet this third requirement were deciding motions for

summary judgment, where the parties had developed the facts of the case. See McDowell, 763

F.3d at 766–67; King, 496 F.3d at 819. Here, Plaintiffs have alleged that Defendants took

actions that put them in danger, and they have alleged that Defendants took these actions

“knowingly, recklessly, and/or intentionally.” Doc. 37 ¶ 20. In light of this, the Court finds that

Plaintiffs have sufficiently alleged a danger of constitutional dimension.4

II. Monell Claim (Count I)

In Count I, Plaintiffs bring a Monell claim alleging that the City of Aurora, through

Osberg, established a policy, practice, or custom of repeated disclosure of highly sensitive,

prohibited information in response to FOIA requests. Defendants seek dismissal of this Monell

claim, arguing that Plaintiffs have not adequately alleged facts allowing the Court to draw a

reasonable inference that the City of Aurora maintains such a policy, practice, or custom.

4 Because the Court has found that Plaintiffs have sufficiently pleaded Fourteenth Amendment violations

for Counts I and II under a state-created danger theory, it declines to reach the parties’ arguments

regarding whether those claims could proceed under a right to informational privacy theory.

Liability under Monell may be premised on (1) an express policy that, when enforced,

causes a constitutional violation; (2) a widespread practice that, although not authorized by

written law or express municipal policy, is so permanent and well-settled as to constitute a

custom or usage with the force of law; or (3) a constitutional injury caused by a person with final

policymaking authority. McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). To

adequately allege a Monell policy or practice claim, Plaintiffs must “plead[ ] factual content that

allows the Court to draw the reasonable inference that the [City of Aurora] maintained a policy,

custom, or practice” that contributed to the alleged violation. McCauley v. City of Chicago, 671

F.3d 611, 616 (7th Cir. 2011) (internal quotation marks omitted).

Defendants complain that Plaintiffs’ allegations refer only to problems they personally

experienced and thus cannot give rise to a claim for a widespread policy or practice. But

recently, the Seventh Circuit has reminded courts not to apply a “heightened pleading standard”

to Monell claims. White v. City of Chicago, 829 F.3d 837, 844 (7th Cir. 2016) (quoting

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164,

113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993)). This means that a plaintiff need not identify other

examples of the complained of practice in order to state a Monell claim; rather, a plaintiff may

rely solely on his own experience. See id. at 844 (noting that plaintiff “was not required to

identify every other or even one other individual who had been arrested pursuant to a warrant

obtained through the complained-of process”); Williams v. City of Chicago, No. 16-cv-8271,

2017 WL 3169065, at *8–9 (N.D. Ill. July 26, 2017) (“Post-White courts analyzing Monell

claims . . . have ‘scotched motions to dismiss’ premised on arguments that the complaint does

not contain allegations beyond those relating to the plaintiff.” (collecting cases)).

Although Plaintiffs’ allegations regarding their own experiences would allow them to

move past a motion to dismiss, they have included allegations concerning other occasions as

well. See Barwicks v. Dart, No. 14-CV-8791, 2016 WL 3418570, at *4 (N.D. Ill. June 22, 2016)

(at summary judgment, single incident cannot establish Monell claim, but at the motion to

dismiss stage, a plaintiff “need only allege a pattern or practice, not put forth the full panoply of

evidence from which a reasonable factfinder could conclude such a pattern exists” (emphasis in

original)). Plaintiffs also indicate that one of the Defendants conducted an audit of its FOIA

responses and found that City of Aurora employees, including Osberg, “repeatedly knowingly,

recklessly, and/or intentionally disclosed private and personal information in response to FOIA

requests.” Doc. 37 ¶ 26. Plaintiffs added in their response to Defendants’ motion to dismiss that

the audit revealed that Defendants had released personal information regarding one of the Officer

Plaintiffs to yet another incarcerated gang member.5 Doc. 24 at 12. Plaintiffs have thus

sufficiently alleged a pattern of conduct to state a Monell claim.

III. Qualified Immunity (Count II)

Defendants assert that Osberg is entitled to qualified immunity for her actions and thus,

the Court should dismiss Count II. Qualified immunity attaches when an official’s conduct ‘does

not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” White v. Pauly, --- U.S. ----, 137 S. Ct. 548, 551, 196 L. Ed. 2d 463 (2017)

(internal quotation marks omitted). “In other words, qualified immunity shields from liability

[defendants] who act in ways they reasonably believe to be lawful.” Ewell v. Toney, 853 F.3d

911, 919 (7th Cir. 2017) (internal quotation marks omitted). Once raised by the defendant, “a

plaintiff must show (1) that the defendant violated a constitutional right, and (2) that the right

5 The Court can consider information in Plaintiffs’ response to the motion to dismiss so long as the

information contained therein is consistent with the allegations in the Amended Complaint. See Help at

Home, Inc. v. Med. Capital, LLC, 260 F.3d 748, 752–53 (7th Cir. 2001).

was clearly established at the time so that it would have been clear to a reasonable officer that

her conduct was unlawful in the situation.” Id.

Because it has already determined that Plaintiffs have shown that Defendants violated a

constitutional right, the Court turns to whether the right was clearly established. “To be clearly

established, a legal principle must have a sufficiently clear foundation in then-existing

precedent.” Dist. of Columbia v. Wesby, -- U.S. --, 138 S. Ct. 577, 589 (2018). The burden of

showing that a rule is clearly established falls to the plaintiff. Doe, 782 F.3d at 915. Although

the plaintiff does not need to direct the Court to a case directly on point, id., “[t]he precedent

must be clear enough that every reasonable official would interpret it to establish the particular

rule the plaintiff seeks to apply,” Wesby, 138 S. Ct. at 590. Moreover, the rule must “clearly

prohibit the [official’s] conduct in the particular circumstances before him.” Id. According to

Plaintiffs, the stated-created danger theory is a clearly established rule that clearly prohibited

Defendants’ behavior. In support of this, they point to Monfils, the case where the plaintiffs’

decedent provided police officers with a tip that a co-worker was planning to steal from their

employer, and asked repeatedly that his identity remain anonymous. 165 F.3d at 513–15. In

spite of this, police officers provided a tape of the man’s phone call to his co-worker, who was

then able to identify the man and retaliated by murdering him. Id. The Seventh Circuit not only

affirmed that the police officer violated the man’s constitutional rights, but also held that the

officer was not entitled to qualified immunity. Id. at 518. In addition, as noted in earlier

discussions, Monfils approvingly cited Kallstrom, a Sixth Circuit case with virtually the same

fact pattern as the one Plaintiffs alleged in their complaint. Id. at 516. It is true that, in dicta, the

Seventh Circuit questioned whether the Supreme Court superseded Monfils in Sandage. 548

F.3d at 599 (citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S. Ct. 2796, 162 L. Ed.

2d 658 (2005)). However, Sandage had already taken pains to distinguish its case, where no

state-created danger was present, from Monfils, and future Seventh Circuit cases have cited

Monfils as good law. See, e.g., Doe, 782 F.3d at 917; Jackson v. Indian Prairie Sch. Dist. 204,

653 F.3d 647, 655 (7th Cir. 2011).

At this stage in the litigation, the Court can only consider the allegations that Plaintiffs

have set forth in their Amended Complaint. These allegations include that Osberg “knowingly,

recklessly, and/or intentionally[] disclosed significant facts details about Plaintiffs’ private and

personal lives to a known, violent felon who was incarcerated, in part, due to the work of these

very Plaintiff officers.” Doc. 37 § 20. Moreover, the Amended Complaint alleges that Osberg

“knew” that releasing the information “would put the Plaintiff officers and their families in a

state of compromised safety.” Jd. {]21. Taking these allegations as true, if Osberg knowingly

and intentionally gave private, personal information about Plaintiffs to a violent felon, knowing

that her actions would compromise Plaintiffs’ safety, her actions clearly fell under the clearly

established theory of state-created danger. This legal principle is well-established and so would

not allow a reasonable official to conclude otherwise. Thus, the Court finds that Osberg is not

entitled to dismissal for qualified immunity at this time.

CONCLUSION

For the foregoing reasons, the Court denies Defendants’ motion to dismiss [18].

DR

Dated: February 28, 2018 op

SARA L. ELLIS

United States District Judge

13