Barbaccia v. Village Of Lombard

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

CHRISTOPHER BARBACCIA,

)

)

Plaintiff,

) No. 19 C 5410

)

v.

) Judge Virginia M. Kendall

)

VILLAGE OF LOMBARD, et al.,

)

)

Defendants.

)

MEMORANDUM OPINION AND ORDER

Village of Lombard Police Officers John Latronica and Garret Klunk pulled

over, arrested, and detained Plaintiff Christopher Barbaccia for multiple motor-vehi-

cle violations under Illinois law. Barbaccia contends that he was driving a low-speed

gas bicycle, which is not a motor vehicle, and therefore the officers lacked probable

cause to seize him for any motor-vehicle infractions. He has brought the instant suit,

claiming that the defendant-officers violated his Fourth Amendment rights and

caused him emotional distress. He also brings a claim against the Village of Lombard

pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978),

alleging that the constitutional violations he suffered were part of a widespread, un-

written practice within the Village of directing officers to arrest civilians without a

legal basis.

The Village and the defendant-officers (collectively “Defendants”) have moved

to dismiss Barbaccia’s complaint, arguing that he has failed to state a claim on the

federal counts and that his state-law claim is time-barred. For the following reasons,

the Court agrees that the Monell and state-law claims should be dismissed. Bar-

baccia’s Fourth Amendment claims against the defendant-officers, however, may pro-

ceed.

BACKGROUND

The following factual allegations are taken from Barbaccia’s complaint and are

assumed true for purposes of this motion. W. Bend Mut. Ins. Co. v. Schumacher, 844

F.3d 670, 675 (7th Cir. 2016).

On or around August 11, 2017, Barbaccia was operating a 48-cc motorized bi-

cycle when he was pulled over by Officer Latronica. (Dkt. 1 ¶¶ 10–11, 14–15). At

the time, Barbaccia was travelling “approximately 20 mph.” (Id. at ¶¶ 10–12). When

Barbaccia asked Officer Latronica why he had been pulled over, Officer Latronica

stated only that Barbaccia could be cited for “numerous violations” without specifying

any in particular. (Id. at ¶ 16). When Officer Latronica asked Barbaccia to produce

his driver’s license and proof of insurance, Barbaccia attempted to tell him that he

was not required to have a license to drive the motorized bicycle. (Id. at ¶¶ 17–21).

In response, Officer Latronica threatened to arrest Barbaccia. (Id. at ¶¶ 17–21).

Officer Latronica looked up Barbaccia’s driver’s license and determined that it

had been suspended. (Id. at ¶ 23). Shortly thereafter, another officer, Officer Klunk,

arrived on scene. (Id. at ¶ 25). Barbaccia again attempted to explain to both officers

that he did not need a driver’s license to operate his motorized bike. (Id. at ¶ 26).

Despite his protestations, the officers arrested Barbaccia for driving with a suspended

license, operating an uninsured vehicle, failing to have registration plates, and driv-

ing on the shoulder. (Id. at ¶¶ 3, 28). Barbaccia’s bike was seized and he was taken

into custody. (Id. at ¶¶ 29–30). He was later released on a recognizant bond. (Id. at

¶ 30). Although Barbaccia was prosecuted, he was ultimately cleared of charges in

early 2018. (Id. at ¶¶ 31–32).

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), the complaint “must con-

tain sufficient factual matter, accepted as true, to state a claim to relief that is plau-

sible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted). A claim is facially plausible “when the plaintiff pleads factual con-

tent that allows the court to draw the reasonable inference that the defendant is lia-

ble for the misconduct alleged.” Id. The Court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Olson v. Champaign Cty., Ill., 784 F.3d

1093, 1099 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Toulon v. Cont’l Cas. Co., 877 F.3d 725, 734

(7th Cir. 2017) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

Barbaccia alleges five counts. Counts One, Two, and Five allege against the

defendant-officers violations of Barbaccia’s Fourth Amendment rights, pursuant to

42 U.S.C. §§ 1983, 1988, for unlawful arrest, illegal search and seizure, and false im-

prisonment, respectively. Barbaccia alleges in Count Three a Monell claim against

the Village of Lombard. And in Count Four, he alleges a state-law claim for inten-

tional infliction of emotional distress (“IIED”). Defendants have moved to dismiss all

five counts.

A. Fourth Amendment Claims

Defendants move to dismiss Counts One, Two, and Five on the grounds that

the defendant-officers had probable cause to seize Barbaccia, and that, even if they

did not have probable cause, they are entitled to qualified immunity.

In Illinois, a low-speed gas bicycle is “[a] 2 or 3-wheeled device with fully oper-

able pedals and a gasoline motor of less than one horsepower, whose maximum speed

on a paved level surface, when powered solely by such a motor while ridden by an

operator who weighs 170 pounds, is less than 20 miles per hour.”

625 ILCS 5/1-140.15. Barbaccia alleges that he was “accused of” multiple violations

pertaining to operating a motor vehicle (Dkt. 1 ¶ 3), despite the fact that his low-

speed gas bicycle is not a motor vehicle. See 625 ILCS 5/1-146.

Defendants point out that Barbaccia has alleged that he was travelling “ap-

proximately 20 mph.” (Dkt 1 ¶ 12). Low-speed gas bicycles are only exempted from

the motor-vehicle definition if they travel below 20 mph. Therefore, Defendants say,

Barbaccia’s admission as to his speed vitiates any argument that the officers lacked

probable cause to consider his bicycle a motor vehicle and to pull him over and arrest

him. See Coleman v. City of Peoria, Illinois, 925 F.3d 336, 350 (7th Cir. 2019) (“Prob-

able cause exists where the police officer is aware of facts and circumstances sufficient

to warrant a prudent man in believing that the petitioner had committed or was

committing an offense.” (internal quotation marks omitted)). And if there was prob-

able cause for his seizure, his Fourth Amendment claims fail. Id. (existence of prob-

able cause defeats a Fourth Amendment claim).

The Court disagrees with this argument. At this stage, we accept Barbaccia’s

allegations as true and draw reasonable inferences in his favor. He has alleged only

that he was travelling approximately 20 miles per hour, which, at this low speed,

leaves room for the inference that he was travelling below that. He could have, for

instance, been travelling at 15 miles per hour. Nor do we know at this point how the

officers determined his speed or whether they had grounds to believe he was travel-

ling at 20 miles per hour or more. Cf. Lund v. City of Rockford, No. 17 C 50035, 2019

WL 1773354, at *3 (N.D. Ill. Apr. 23, 2019) (noting that to have probable cause, offic-

ers must have reasonably determined that the bicycle was going at least 20 miles per

hour, and probable cause existed because officers paced the bicycle on a flat surface

and determined it was going over 20 miles per hour). Without more, we cannot con-

clude from the complaint alone that the officers had probable cause to stop Barbaccia

on the grounds that he was driving a motor vehicle.

Defendants argue in the alternative that the defendant-officers are entitled to

qualified immunity. Police officers are entitled to qualified immunity “for conduct

that ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known’” at the time of the conduct in question. Stewart

v. Parkview Hosp., 940 F.3d 1013, 1016 (7th Cir. 2019) (quoting Kisela v. Hughes, 138

S. Ct. 1148 (2018) (per curiam)). “[Q]ualified immunity provides shelter for officers

who have ‘arguable probable cause’ to arrest—i.e., those officers that reasonably but

mistakenly believe they have probable cause.” Gutierrez v. Kermon, 722 F.3d 1003,

1008 (7th Cir. 2013). “Though they may appear to be the same, the probable-cause

and arguable-probable-cause inquiries are different. . . . An arrest without probable

cause is a violation of a constitutional right, whereas an arrest without arguable prob-

able cause is a violation of a ‘clearly established’ constitutional right.” Id. A qualified-

immunity defense is typically presented at the summary-judgment stage but can also

be presented in a motion to dismiss. Stevens v. Umsted, 131 F.3d 697, 706 (7th Cir.

1997).

As noted above, at this point, the Court has limited facts from which to assess

what actually happened. Further, because we are at the motion-to-dismiss stage, the

Court makes reasonable inferences in favor of Barbaccia. The complaint provides

only that Barbaccia was travelling somewhere in the ballpark of 20 miles per hour

and that he attempted to explain to the officers that his bicycle did not qualify as a

motor vehicle. 625 ILCS 5/1-140.15 is clear as to what constitutes a low-speed gas

bicycle,1 and Illinois courts had, prior to Barbaccia’s arrest, reiterated the require-

ments of that statute. See e.g., People v. Frazier, 62 N.E.3d 1081, 1086 (Ill. App. Ct.

2016); People v. Grandadam, 44 N.E.3d 611, 615 (Ill. App. Ct. 2015). Given the dearth

of information and the fact that the Court construes inferences in Barbaccia’s favor,

1 Since Barbaccia’s arrest, the Supreme Court of Illinois has stated that 625 ILCS 5/1-140.15 “both

provides sufficient notice of what it prohibits to individuals of ordinary intelligence and supplies law

enforcement officers with reasonable standards to prevent arbitrary enforcement.” People v. Plank,

106 N.E.3d 995, 999 (Ill. 2018).

the Court cannot, at this point, conclude that the officers reasonably, even if mistak-

enly, believed they had probable cause to stop, arrest, and detain Barbaccia. The

Court therefore declines to grant qualified immunity on the grounds of arguable prob-

able cause.

That being said, in some cases, even though a grant of qualified immunity is

not appropriate at an early stage in the case, after discovery, facts may emerge that

would make a grant of qualified immunity appropriate. See Bruce v. Guernsey, 777

F.3d 872, 879 (7th Cir. 2015). Defendants, therefore, are not precluded from again

moving for qualified immunity once more facts come to light.

B. Monell Claim

Pursuant to Monell, “[a] local governing body may be liable for monetary dam-

ages under § 1983 if the unconstitutional act complained of is caused by: (1) an official

policy adopted and promulgated by its officers; (2) a governmental practice or custom

that, although not officially authorized, is widespread and well settled; or (3) an offi-

cial with final policy-making authority.” Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d

293, 303 (7th Cir. 2010).

In Count Three, Barbaccia brings a Monell claim against the Village of Lom-

bard. He alleges that the Village trains, encourages, and directs its police officers to

engage in impermissible searches and seizures lacking probable cause, and/or con-

dones such behavior. (Dkt. 1 ¶ 55).

As a preliminary matter, Barbaccia styles his claim as one for failure to train

or supervise. In such claims, under limited circumstances, a municipality’s failure

to train or supervise its employees may “rise to the level of an official government

policy for purposes of § 1983,” Connick v. Thompson, 563 U.S. 51, 61 (2011), if the

failures amount to “deliberate indifference to the rights of persons with whom the

police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989);

see also Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 599 (7th Cir. 2019). In other

words, a municipality may be liable because it fails to implement training despite an

obvious need for it. City of Canton, 489 U.S. at 390. Barbaccia’s complaint, however,

alleges not a lack of training, but instead an intentional practice of teaching and en-

couraging officers to engage in unconstitutional behavior.2 It is an improper-training

rather than a failure-to-train claim, and therefore this Court does not assess it under

the framework applicable to the latter.

The Court now turns back to what Barbaccia has, in fact, alleged, which is “a

common, unwritten practice put in place by the [municipality] that nonetheless has

the force of law.” League of Women Voters of Chicago v. City of Chicago, 757 F.3d 722,

727–28 (7th Cir. 2014); see also Dkt. 1 ¶ 56 (alleging an “unwritten policy, custom, or

pattern of practice”). The constitutional violations he endured, Barbaccia says, were

the result of the Village’s unwritten practice of indiscriminately stopping people with-

out probable cause. (Dkt. 1 ¶¶ 50-58).

2 In his response to the motion to dismiss, Barbaccia vaguely makes reference to an argument that the

Village’s failure to supervise the defendant-officers was the proximate cause of his injuries. Dkt. 21

at 8. But such an argument is untenable even in the failure-to-train context. “In virtually every

instance where a person has had his or her constitutional rights violated by a city employee, a § 1983

plaintiff will be able to point to something the city ‘could have done’ to prevent the unfortunate inci-

dent.” City of Canton, 489 U.S. at 392. Monell claims, however, cannot be based upon this type of “de

facto respondeat superior liability.” Id.

Although there is no heightened pleading standard for such a claim and a

plaintiff need not provide examples of “every other or even one other individual” who

suffered as a result of the unwritten practice, see White v. City of Chicago, 829 F.3d

837, 843–44 (7th Cir. 2016), he must “plausibly allege that such examples exist.” Gill

v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). For example, in White, alt-

hough the plaintiff did not identify other individuals who had been harmed, he did

allege that his injury resulted from the use of a standard but inadequate complaint

form, one that was regularly used by police. 829 F.3d at 840, 844.

Barbaccia’s complaint is entirely devoid of factual allegations that would allow

this Court to draw the reasonable inference that the Village had any widespread un-

written policy or custom. Barbaccia concedes as much, as he notes in his response to

the motion to dismiss that he “can only point to his own individual experiences.” (Dkt.

21 at 8). And while that might be fine if he provided facts that would suggest others

may have suffered the same harm, he has not done so. Yet he requests that the Court

allow him to go on a fishing expedition because “discovery may produce additional

instances of misconduct to support Monell liability.” (Dkt. 21 at 8). That is not how

Monell claims work.

In sum, Barbaccia has essentially claimed that the Village is directing the po-

lice to violate the constitution. That is a quite an accusation to level, and Barbaccia

has alleged no factual content that would move this bold claim from merely conceiv-

able to plausible, as is required under well-established pleading standards. See

McCauley v. City of Chicago, 671 F.3d 611, 618 (7th Cir. 2011) (citing Iqbal, 556 U.S.

at 680). As such, he has failed to state a viable Monell claim.

C. IIED Claim

Under Illinois law, the statute of limitations for an IIED claim against govern-

mental entities and their employees is one year. 745 ILCS 10/8-101(a). And “a claim

of intentional infliction of emotional distress in the course of arrest and prosecution

accrues on the date of the arrest.” Bridewell v. Eberle, 730 F.3d 672, 678 (7th Cir.

2013). Defendants point out that the arrest here occurred on or about August 11,

2017, but Barbaccia did not bring suit until August 10, 2019, past the one-year period.

Therefore, Defendants argue, Barbaccia’s IIED claim is time-barred. Barbaccia, for

his part, has offered no response to this argument. The Court agrees with Defendants

and Count Four is therefore dismissed with prejudice as time-barred. See also Lekas

v. Briley, 405 F.3d 602, 614 (7th Cir. 2005) (claims not addressed in response to a

motion to dismiss are waived).

CONCLUSION

Defendants’ motion to dismiss is granted in part and denied in part. The Court

denies the motion as to Counts One, Two, and Five, although Defendants are not

precluded from again advancing a qualified-immunity argument once more facts have

been developed. The Court grants the motion as to Counts Three and Four. Bar-

baccia has failed to state a Monell claim in Count Three, and this claim is dismissed

without prejudice. Barbaccia has failed entirely to respond to the argument that his

IIED claim in Count Four is time-barred, and this claim is dismissed with prejudice.

Barbaccia is granted leave to amend his complaint consistent with this Opinion, if

possible, within 21 days of the filing of this Opinion.

, I Kabat

ia M. Kendall

Unrted States District Judge

Date: January 29, 2020

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