Fakhoury v. Village of Alsip

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Shereen Fakhoury, )

)

Plaintiff, )

)

)

v. ) No. 18 C 7262

)

Alsip Police Officer James )

Brongiel, et al., )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

Plaintiff Shereen Fakhoury was arrested by the Village of Oak

Lawn Police Department in December of 2013 for driving under the

influence. A warrant for her arrest was issued. On December 18,

2015, the Circuit Court of Cook County entered an Order declaring

that the warrant had been executed. Plaintiff received a copy of

that Order.

On November 1, 2017, Officer Brongiel of the Village of Alsip

Police Department approached plaintiff in the driveway of her

residence in the Village of Alsip and inquired about the warrant.

Plaintiff told Officer Brongiel that the warrant had been executed

and offered to produce a copy of the December 18, 2015, Order from

her home. According to the complaint, Brongiel “contacted Alsip

dispatch to verify the status” of the warrant and “was advised

said warrant remained outstanding.” Compl. at ¶ 21. Brongiel

refused to allow plaintiff to retrieve her copy of the Order and

instead took her into custody.

Brongiel then drove plaintiff to a location on the border of

the Village of Alsip and the Village of Oak Lawn, where he

transferred her into the custody of Officer Carlson of the Oak

Lawn Police Department. Officer Carlson contacted Oak Lawn

Dispatch and, like Officer Brongiel, was advised that the warrant

remained outstanding. Officer Carlson then transported plaintiff

to the Oak Lawn Police Department Lockup. Plaintiff alleges that

throughout this time, she repeatedly told the officers that the

warrant had been executed and that she was in possession of a copy

of the Order. Plaintiff repeatedly requested permission to contact

her brother so that her brother could bring a copy of the Order to

the Oak Lawn Police Station. Her requests were denied. Plaintiff

also advised Officer Carlson that she suffered from an anxiety

disorder requiring medication and requested permission to contact

her brother so that her brother could bring her medication. This

request was likewise denied.

Plaintiff was placed in a cell at the Oak Lawn Police

Department at around noon the same day. Over the next two hours,

plaintiff’s brother contacted the Oak Lawn Police Department to

advise them of the Order stating that the warrant had been

executed, but Officer Carlson and/or other officers of the Oak

Lawn Police Department “continued to refuse to receive said Court

Order” and continued to detain plaintiff. Compl. at ¶ 50. Shortly

before 3:00 p.m., plaintiff complained of pain in her chest and

side. She was transferred to a hospital emergency room ten minutes

later, where she was treated for an aggravation of her anxiety

disorder and returned to the Oak Lawn Police Department shortly

after 7:00 p.m. She remained in the custody of the Oak Lawn Police

Department until her appearance at a hearing pursuant to the

warrant in the Circuit Court of Cook County at 8:35 the following

morning. The judge determined that the warrant had been executed

on December 18, 2015, and entered an order stating that all

warrants issued in plaintiff’s cause prior to the hearing date

were quashed and recalled. Plaintiff was released from custody,

and this lawsuit followed.

The complaint alleges that Officers Brongiel, Carlson,

unknown others, and the Villages of Alsip and Oak Lawn falsely

arrested and falsely imprisoned plaintiff in violation of the

Fourth and Fourteenth Amendment. She also alleges that Officers

Carlson and unknown others, and the Village of Oak Lawn, denied

her medical care in violation of the Fourth and Fourteenth

Amendments. Finally, she asserts against all defendants state law

claims for intentional infliction of emotional distress and false

imprisonment. Against the municipal defendants, plaintiff also

pleads counts captioned respondeat superior and indemnification.

Defendants Brongiel and the Village of Alsip have answered the

complaint. Defendants Carlson and the Village of Oak Lawn (“the

Village”) have moved to dismiss the claims directed to them: false

arrest and false imprisonment in violation of the Constitution and

Illinois state law; denial of medical care in violation of the

Constitution; and intentional infliction of emotional distress

(“IIED”). For the reasons that follow, the motion is granted.

I.

A motion to dismiss tests the sufficiency of a complaint, not

its merits. Gibson v. City of Chicago, 910 F. 2d 1510, 1520 (7th

Cir. 1990). I assume the truth of plaintiff’s factual allegations

and draw all reasonable inferences in her favor. Id. at 1521.

Defendants raise several arguments for dismissal. First, they

assert that the plaintiff’s own allegations establish probable

cause for her arrest, eviscerating her Fourth Amendment and

Illinois wrongful arrest claims. At a minimum, defendants

continue, the alleged facts show that Officer Carlson had “arguable

probable cause” for her arrest, so he is qualifiedly immune from

liability for the alleged constitutional violations. Next,

defendants argue that plaintiff’s allegations do not state an

actionable claim for deliberate indifference to a serious medical

need or IIED. Defendants’ final argument is that there is no basis

for municipal liability because even assuming that the complaint

pleads a constitutional violation by Carlson, it fails to allege

any facts suggesting the existence of a municipal policy, custom,

or practice as required to hold the Village liable under Monell v.

New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978),

and because each of her substantive state law claims is subject to

dismissal. Plaintiff offers no response to defendants’ argument

concerning Monell liability, but she disputes their remaining

arguments seriatim.

II.

I begin with the issue of probable cause, since its existence

“is an absolute defense” to both federal and state claims based on

a wrongful arrest. Mustafa v. City of Chicago, 442 F.3d 544, 547

(7th Cir. 2006) (probable cause defeats claims for false arrest

and false imprisonment; Stokes v. Bd. of Educ. of the City of

Chicago, 599 F.3d 617, 626 (7th Cir. 2010) (same under Illinois

law). An officer has probable cause to arrest when the totality of

the facts and circumstances within the officer’s knowledge

objectively support a reasonable belief that the individual has

committed a crime. Holmes v. Village of Hoffman Estates, 511 F.3d

673, 679 (7th Cir. 2007). “Qualified immunity is available if there

is ‘arguable probable cause’ for the arrest. Muhammad v. Pearson,

900 F.3d 898, 908 (7th Cir. 2018)

At the outset, it bears noting that plaintiff does not allege

that Carlson was involved in the decision to arrest her. Instead,

she states that Carlson took custody of her after she was detained

by Officer Brongiel. See Compl. at ¶ 25 (Officer Brongiel took

plaintiff into custody at her home). According to the complaint,

Brongiel transferred custody of plaintiff to Carlson on a street

corner at the border of Alsip and Oak Lawn. Id. at ¶¶ 26-27. There,

Carlson contacted the Oak Lawn police department and learned—just

as Officer Brongiel had from the Alsip police department—that a

warrant for her arrest was outstanding. Id. at ¶¶ 28, 21. Carlson

then transported plaintiff to the Village lockup. Id. at ¶ 28.

These facts do not easily lend themselves to a claim of false

arrest against Carlson, who had no role in plaintiff’s initial

arrest and took affirmative steps to confirm that her custody was

lawful prior to taking custody of her. Those steps yielded

information supporting probable cause. Moreover, unlike in

plaintiff’s central authority, McMurry v. Sheahan, No. 95 C 999,

1996 WL 296585 (N.D. Ill. May 31, 1996) (Gettleman, J.), plaintiff

neither alleges nor offers facts to suggest that Carlson knew or

should have known that the information he obtained from his fellow

officers was unreliable. Cf. id. at *7. (computerized system

showing outstanding warrants was allegedly known to be “an utter

failure and cannot be relied upon,” and “routinely leads to false

arrests.”)(citations omitted).

“Generally, a person arrested pursuant to a facially valid

warrant cannot prevail in a § 1983 suit for false arrest,” unless

the arresting officer knew the warrant was invalid. Williamson v.

Curran, 714 F.3d 432, 443-44 (7th Cir. 2013) (quoting Baker v.

McCollan, 443 U.S. 137 143 (1979)). Plaintiff insists that she

told Carlson—as she had Brongiel—that her arrest warrant had been

executed, and that she could prove it by showing them the Order.

But even with the Order in hand, Officer Carlson would have been

faced with facially contradictory evidence: information he

obtained from his fellow officers indicating that a warrant for

plaintiff’s arrest was outstanding, and a judicial order that, on

its face, appeared to show the contrary. “Courts, and not the

police, should determine whether to credit a suspect’s claim of

innocence.” Dakhlallah v. Zima, 42 F. Supp. 3d 901, 909 (N.D. Ill.

2014). See also Reynolds v. Jamison, 488 F.3d 756, 762 (7th Cir.

2007) (suspect’s denial of guilt “does not negate probable cause

for his arrest”). While an officer “may not close his eyes to facts

that would clarify the situation,” McBride v. Grice, 576 F.3d 703,

707 (7th Cir. 2009), the Fourth Amendment does not require officers

in the field to resolve inconsistencies in the facts they observe

prior to taking a suspect into custody, see Leaver v. Shortess,

844 F.3d 665, 669 (7th Cir. 2016) (conflicting information

uncovered in police investigation does not “conclusively negate”

probable cause). See also McBride 576 F.3d at 708 (“[t]here is no

constitutional or statutory requirement that before an arrest can

be made the police must conduct a trial.”) (quoting Gramenos v.

Jewel Companies, Inc., 797 F.2d 432, 439 (7th Cir. 1986));

Dakhlallah 42 F. Supp. 3d at 921 (N.D. Ill. 2014) (information

arresting officer obtained from law enforcement database supported

probable cause, notwithstanding suspect’s offer to provide copy of

a court order showing inaccuracy of that information).

At a minimum, Officer Carlson is entitled to qualified

immunity because a reasonable officer in his situation could have

believed that he had probable cause to detain plaintiff “at least

long enough to figure out definitively” whether plaintiff’s arrest

warrant was still outstanding. See Muhammad v. Pearson, 900 F.3d

898, 909 (7th Cir. 2018) (officer executing search warrant had

“arguable probable cause” to arrest individual who “did not look

like the picture” the officer had of the suspect, but who met other

criteria known about the suspect and had no identification to prove

who he was or where he lived). Plaintiff argues that qualified

immunity is inappropriate on the facts alleged, but her cited

authorities confirm the opposite. See Fleming v. Livingston

County, Ill., 674 F.3d 874, 879 (7th Cir. 2012) (granting qualified

immunity to arresting officer who “reasonably, albeit possibly

mistakenly” believed probable cause existed); Duckett v. City of

Cedar Park, Tex., 950 F.2d 272, 278 (5th Cir. 1992) (granting

qualified immunity to officer who arrested the plaintiff based on

“a computer check” that revealed an outstanding warrant,

notwithstanding the plaintiff’s insistence that the warrant had

been withdrawn); Lauer v. Dahlberg, 717 F. Supp 612 (N.D. Ill.

1989)(granting qualified immunity to officer who arrested the

plaintiff based on information from law enforcement database

showing “active status” of warrant, even though the plaintiff

provided a copy of a warrant recall order). Each of these cases

supports the conclusion that based on the complaint’s allegations,

Officer Carlson is entitled to qualified immunity for plaintiff’s

false arrest and imprisonment claims.

Plaintiff’s claim for deliberate indifference similarly fails

on the pleadings. To state an actionable claim for deliberate

indifference, plaintiff must allege both that she suffers from an

objectively serious medical condition and that Officer Carlson

knew about the condition and the risk it posed but recklessly

disregarded the risk. Pyles v. Fahim, 771 F.3d 403, 408-09 (7th

Cir. 2014) (citation omitted). As the Seventh Circuit acknowledged

in one of plaintiff’s cited authorities, a plaintiff “can plead

[herself] out of court by alleging facts which show that [she] has

no claim,” for deliberate indifference. Gutierrez v. Peters, 111

F.3d 1364, 1374 (7th Cir. 1997). Plaintiff has done just that.

By her own account, plaintiff arrived at the Village of Oak

Lawn police station at approximately noon; began complaining of

chest and side pains at 2:44 p.m.; and was transferred to the

hospital for treatment ten minutes later, at 2:54. Sensibly,

plaintiff does not suggest that Officer Carlson or anyone else

acting on behalf of the Village should have responded sooner to

her symptoms, but she claims that they exhibited deliberate

indifference by refusing to allow her brother to bring her anxiety

medication to her before she became symptomatic. The deliberate

indifference analysis considers “the totality of an inmate’s

medical care,” however, id. at 1375, and plaintiff’s description

of defendants’ swift response to her first report of any symptoms

thoroughly undercuts her argument. Moreover, although plaintiff

alleges that a form filled out at the police station indicated

“possible suicidal tendencies,” Compl. at ¶ 42, she does not allege

that Officer Carlson knew about this notation or was aware of any

other facts signaling that plaintiff’s condition posed “an

excessive risk” to her health and safety if left untreated.

Gutierrez, 111 F.3d at 1369 (prison official cannot be liable for

deliberate indifference unless he was “aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists” and actually drew that inference) (quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)). For these reasons, the

complaint fails to attribute to Carlson a “sufficiently culpable

state of mind” to support plaintiff’s claim for deliberate

indifference. Gutierrez, 111 F.3d at 1369 (citation omitted).

Because plaintiff has pled no underlying constitutional

violation by Carlson or any other individual acting on behalf of

the Village, her Monell claim against the Village likewise fails.

Horton v. Pobjecky, 883 F.3d 941, 954 (7th Cir. 2018) (municipality

“cannot be liable under Monell when there is no underlying

constitutional violation by a municipal employee.”). At all

events, even assuming an underlying violation, plaintiff offers no

facts to suggest that any injury she suffered was the result of an

unconstitutional municipal policy, custom, or practice. See Petty

v. City of Chicago, 754 F.3d 416, 424 (7th Cir. 2014).

This leaves only plaintiff’s state law claims for IIED,

respondeat superior, and indemnification, which require little

discussion. With respect to the IIED claim, plaintiff once again

responds to defendants’ argument—here on the issue of whether she

has pled extreme or outrageous conduct—with authorities that

undercut her position. She cites two cases in this connection,

Lopez v. City of Chicago, 464 F.3d 711 (7th Cir. 2006), and Kerr

v. Weidert, No. 4:13-cv-04102-SLD-JEH, 2016 WL 5660383 (C.D. Ill.

Sept. 29, 2016) (Darrow, J.). In Lopez, the Seventh Circuit

reversed a judgment in the defendants’ favor and remanded for a

trial on the plaintiff’s IIED claim, which was based on evidence

that the defendants held the plaintiff shackled to the wall of a

filthy, nine-by-seven-foot interrogation room for four days; gave

him food and drink only once during that time; and granted him

access to a bathroom only after he “scream[ed] from the top of

[his] lungs.” 464 F.3d at 715. Those facts bear no resemblance to

the conduct plaintiff attributes to defendants here, and the

comparison serves only to underscore that the wrongdoing she

alleges falls short of the high bar that applies to such claims.

Indeed, in Kerr, the plaintiff’s IIED claim was based on

allegations that a police officer had tackled the “non-resistant

and peaceful” plaintiff, forced his knee into the plaintiff’s side,

and pulled the plaintiff’s arm behind him. 2016 WL 5660383, at *8.

The court dismissed the claim on the ground that the officer’s

alleged brutality was not “beyond all possible bounds of decency,”

and fell short of the kind of extreme or outrageous conduct

required to support a claim for ITED. Id. at *9. So is it here.

With nothing remaining of plaintiff’s substantive claims

against Officer Carlson or any other individual officer, her claims

for respondeat superior and indemnification against the Village

must be dismissed.

Til.

For the foregoing reasons, defendants’ motion to dismiss is

granted.

ENTER ORDER:

United States District Judge

Dated: July 2, 2019

12