Hancock v. City Of Chicago

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMAL L. HANCOCK and LAVAN )

GALLERIES LLC, )

)

Plaintiffs, )

) No. 18 C 4580

v. )

) Judge Sara L. Ellis

CITY OF CHICAGO (a Municipal )

Corporation), CITY OF CHICAGO POLICE )

DEPARTMENT, DETECTIVE TIMOTHY E. )

CERVEN (STAR #S 5792,16759,20971), )

OFFICER JOHN WILLIAMSON1 )

(STAR # 14475) OFFICER TRE HARDIMAN, )

OFFICER HARRY JOZEFOWICZ,2 )

SUPERVISING OFFICER TIMOTHY J. )

FLISK (STAR # 1855), SUPERVISING )

OFFICER KATHIE PARK (STAR # 2189), )

GARY METZNER (An Individual), )

)

Defendants. )

ORDER

The Court grants Defendants’ motions to dismiss [26, 27] and dismisses Plaintiffs’

complaint [1] with prejudice. The Court terminates this civil case. See Statement for further

detail.

STATEMENT3

Like Sisyphus rolling the boulder up the hill, Plaintiffs Jamal L. Hancock and Lavan

Galleries LLC (“Lavan Galleries”) continue their pursuit of litigation surrounding events that

occurred as a result of Hancock’s attempt to use Sotheby’s as a broker for his fine arts collection.

Unfortunately, the boulder continues to roll back down on them. The Court discussed the facts

1 Although Hancock named “John Williams” in the complaint, the correct spelling is John Williamson.

See Doc. 27 at 1 n.1.

2 Although Hancock named “Harry Josefowicz” in the complaint, the correct spelling is Harry

Jozefowicz. See Doc. 45 at 1 n.1.

3 The facts in this Order are taken from Plaintiffs’ complaint and exhibits attached thereto [1] and are

presumed true for the purpose of resolving Defendants’ motions to dismiss [26, 27]. 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).

of this case in greater detail in its December 20, 2018 Opinion [29] addressing claims against the

Sotheby’s Defendants in this case as well as Hancock v. Sotheby’s, No. 17 C 7446 (N.D. Ill.).

The Court relies on the same facts and definitions used in that Opinion.

The Court now addresses Plaintiffs’ remaining claims against Defendants City of

Chicago (the “City”) and City of Chicago Police Department (“CPD”), as well as Defendants

Detective Timothy E. Cerven, Officer John Williamson, Officer Harry Jozefowicz, Supervising

Officer Timothy J. Flisk, and Supervising Officer Kathie Park (collectively, the “Officer

Defendants”). Because the Court has already dismissed Counts VII and VIII, it does not address

the parties’ arguments regarding those claims.

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.

I. Chicago Police Department

First, the City seeks to dismiss CPD from the complaint because it is not a proper entity.

CPD is not a suable entity separate from the City of Chicago. Averhart v. City of Chicago, 114

F. App’x 246, 247 (7th Cir. 2004). Plaintiffs concede this point in their response to the City’s

motion. Doc. 5 n.4. Accordingly, the Court dismisses all allegations against CPD.

II. Equal Protection Claim (Count IV)

Both the City and the Officer Defendants move to dismiss Plaintiffs’ equal protection

claim. To state an equal protection claim based on race discrimination,4 a plaintiff must allege

that “‘he was a member of a protected class, and that he was treated differently from members of

the unprotected class.’” Williams v. Cook County, No. 18 C 1456, 2019 WL 952160, at *5 (N.D.

Ill. Feb. 27, 2019) (quoting Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005)). In addition,

Plaintiffs must allege “that the defendants’ actions had a discriminatory effect and were

motivated by a discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635–36 (7th

Cir. 2001).

4 The City and Plaintiffs act under the assumption that Plaintiffs’ equal protection claim is a class-of-one

claim. However, “class-of-one refers not to the number of plaintiffs but to the fact that the plaintiff or

plaintiffs is not suing as a member of an identifiable group, such as race or gender.” Del Marcelle v.

Brown Cty. Corp., 680 F.3d 887, 895 (7th Cir. 2012). Plaintiffs claim that the City and Officer

Defendants discriminated against him based on his race, which is clearly an identifiable group.

Here, Plaintiffs simply have not alleged that the City or the Officer Defendants had a

discriminatory purpose. Plaintiffs describe two reports created by the Officer Defendants (and

through them, the City) related to Plaintiffs’ dispute with Sotheby’s. On March 2, 2016,

Williamson responded after Sotheby’s called the police, and generated a police report based

upon information provided by Sotheby’s employees that was allegedly false. However,

according to the complaint itself, Williamson had no interaction with Hancock. On March 4,

2016, Cerven created a supplementary report in which he noted that he spoke to representatives

from Sotheby’s and advised them to obtain a No Contact Order and call the police if they saw

Hancock near the business again. He further recommended that CPD suspend the investigation

pending Sotheby’s obtaining a No Contact Order. Park approved the supplementary report on

March 5, 2016. None of these allegations show anything other than police officers responding to

a call and following up on that call. The complaint provides no facts to support even an

inference that the Officer Defendants acted with a discriminatory intent.

The complaint does contain a conclusory statement that the “above-described conduct of

named defendants was committed upon Hancock because his [sic] is an African American.”

Doc. 1 ¶ 83. This is insufficient to state a claim. See Hicks v. City of Chicago, No. 15 C 06852,

2017 WL 4339828, at *8 (N.D. Ill. Sept. 29, 2017) (“The problem with this claim is that

[Plaintiff] has not pled any facts that give rise to a plausible inference [of] intentional racial

discrimination. In saying that the officers engaged in ‘purposeful discrimination against Plaintiff

because of her race,’ [Plaintiff] is merely offering a legal conclusion, which this Court need not

accept.” (citations omitted)); McDonald by McDonald v. Haskins, No. 90 C 2797, 1991 WL

61036, at *1 (N.D. Ill. Apr. 10, 1991) (“Plaintiff has failed to plead any facts, apart from his own

race, from which the court can draw an inference that defendants actions were at all motivated by

plaintiff’s race.”), aff’d, 966 F.2d 292 (7th Cir. 1992). Plaintiffs do not satisfy the notice

requirements set forth by the Supreme Court in Twombly and Iqbal. See Iqbal, 556 U.S. at 678

(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”). The Court dismisses their equal protection claim.

III. False Report Claim (Count V)

The Officer Defendants seek dismissal of Plaintiffs’ false report claim on the basis that

Plaintiffs do not identify a constitutional harm that they suffered as a result of the Officer

Defendants’ actions. Plaintiffs allege in the complaint that the Officer Defendants’ actions

violated Hancock’s Fourteenth Amendment right. “[A] violation of the Fourteenth Amendment

does not occur unless a person is ‘deprive[d] . . . of life, liberty, or property, without due process

of law.” Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012) (quoting U.S. Const.

amend. XIV). A plaintiff cannot establish the elements of a constitutional tort without

establishing that the alleged actions caused him some type of injury. See id. And here, Plaintiffs

do not allege any constitutional injury. Nothing ever came of the police reports; Plaintiffs do not

allege that the reports were used as evidence against Hancock. Moreover, Plaintiffs’ claim that

the reports prohibit Hancock from visiting the area around Sotheby’s makes no sense; they are

merely reports and have no control or authority over Hancock’s movements. 5 Along similar

5 Plaintiffs confuse Cerven’s recommendation in the supplementary report that Sotheby’s obtain a No

Contact Order for an actual No Contact Order. The supplementary report is not a No Contact Order.

lines, the Seventh Circuit has noted that “if an officer (or investigating prosecutor) fabricates

evidence and puts that fabricated evidence in a drawer, making no further use of it, then the

officer has not violated due process.” Id. Plaintiffs do not allege that these police reports were

ever actually used against them, and thus they cannot establish a constitutional harm. Because of

this, the Court dismisses this claim.

IV. Conspiracy (Counts VI and X)

The Officer Defendants also move to dismiss Plaintiffs’ constitutional conspiracy claim,

arguing that they have failed to allege an underlying constitutional violation. “Without a viable

federal constitutional claim, the conspiracy claim under § 1983 necessarily fails; there is no

independent cause of action for § 1983 conspiracy.” Katz-Crank v. Haskett, 843 F.3d 641, 650

(7th Cir. 2016). Because Plaintiffs have not alleged a viable federal constitutional claim,

Plaintiffs’ constitutional conspiracy claim (Count VI) fails as well. Moreover, the lack of a

viable federal claim also precludes any chance that Plaintiffs could succeed on their conspiracy

claim under 42 U.S.C. § 1985(3) (Count X). Sow v. Fortville Police Dep’t, 636 F.3d 293, 305

(7th Cir. 2010) (“[T]he absence of any underlying violation of Plaintiff[s’] rights precludes the

possibility of Plaintiff[s] succeeding on a conspiracy claim.”). Because Plaintiffs have had a fair

opportunity to address this issue through the Officer Defendants’ motion to dismiss the

constitutional conspiracy claim, the Court also dismisses the § 1985(3) conspiracy claim.

V. Failure to Train (Count I)

The City argues that the Court should dismiss Plaintiffs’ failure to train claim on the

grounds that Plaintiffs have failed to allege a constitutional violation upon which to base their

Monell claim and they have not pleaded enough facts to link the City to any alleged

constitutional violations.6 To establish liability against the City under Monell, Plaintiffs must

allege that: (1) they suffered a constitutional deprivation, (2) “as a result of either an express

municipal policy, widespread custom, or deliberate act of a decision-maker with final

policymaking authority,” that (3) proximately caused their constitutional injuries. Ovadal v. City

of Madison, Wis., 416 F.3d 531, 535 (7th Cir. 2005). As discussed elsewhere in this Statement,

Plaintiffs do not identify any constitutional deprivation that they have suffered. Plaintiffs’

Monell claim rests on a failure to train theory, alleging that the City’s policies, customs, or

practices led to the Officer Defendants’ actions. Given that the Court has determined that

Plaintiffs failed to allege that the Officer Defendants violated Plaintiffs’ constitutional rights,

Plaintiffs have also failed to allege a sufficient constitutional deprivation to sustain this type of

Monell claim. See Swanigan v. City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (“If a

plaintiff fails to prove a violation of his constitutional rights in his claim against the individual

defendants, there will be no viable Monell claim based on the same allegations.”). Accordingly,

the Court dismisses Plaintiffs’ Monell claim for failure to train.

6 Because the Court finds that Plaintiffs have not sufficiently alleged a constitutional violation, the Court

does not reach the second argument.

VI. Respondeat Superior (Count II) and Indemnification (Count III)

Finally, the City moves to dismiss Plaintiffs’ respondeat superior and indemnification

claims on the grounds that no underlying claims remain to support these claims.

Courts cannot hold a municipality liable under § 1983 on a respondeat superior theory,

Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011), which Plaintiffs

acknowledge, and so this claim is limited to Plaintiffs’ state law claims. None of the state law

claims survived the Court’s December 20, 2018 Opinion [29], however, and so the Court

dismisses Plaintiffs’ respondeat superior claim. See Shelton v. Schneider, No. 05 C 5955, 2006

WL 59364, at *8 (N.D. Ill. Jan. 4, 2006) (dismissing plaintiff’s respondeat superior claim in

light of the fact that no underlying state law claims remained).

Similarly, because the Court has dismissed all of Plaintiffs’ substantive claims, their

claim for indemnification is not viable. The Court dismisses Plaintiffs’ indemnification claim as

well.

VII. Conclusion

As noted in the Court’s December 20, 2018 Opinion [29], this complaint is Plaintiffs’

fourth bite of the apple regarding these facts. Given that Plaintiffs have still been unable to move

past their conclusory statements, the Court finds dismissal with prejudice appropriate.

Date: March 27, 2019 /s/_Sara L. Ellis______________