Hutton v. Barnes, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSHUA HUTTON,

Plaintiff,

v. No. 20-cv-03997

Judge Franklin U. Valderrama

CITY OF CHICAGO, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Joshua Hutton (Hutton) alleges that while riding his bicycle in the

bicycle lane southbound on Clark Street, in the City of Chicago (the City), off-duty

Chicago Police Officer Thomas Ray Barnes, Jr. (Barnes), who was operating a motor

vehicle southbound on Clark Street in and out of the bicycle lane, began harassing

Hutton. Hutton claims that at a stoplight, Barnes exited his vehicle and struck and

beat Hutton. Hutton subsequently filed this action against Barnes and the City,

asserting the following counts: Battery against Barnes (Count I); Battery against the

City based on agency (Count II); Assault against Barnes (Count III); Assault against

the City, based on agency (Count IV); a Section 1983 Fourth Amendment claim

against Barnes based on excessive force (Count V); and an Unlawful Policy and

Procedure claim against the City (Monell claim) (Count VI). R. 1-1, Second Amended

Complaint (SAC).1 Before the Court is the City’s Motion to Dismiss Count VI of

1Citations to the docket are indicated by “R.” followed by the docket number and, where

necessary, a page or paragraph citation.

Hutton’s SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 15, Mot.

Dismiss. For the reasons that follow, the City’s motion is granted.

Background

On the morning of November 21, 2017, Hutton was riding his bicycle

southbound in a designated bicycle lane on Clark Street in the City. SAC ¶ 6.2 At that

time, Barnes was driving his motor vehicle southbound on Clark Street, directly in

front of Hutton. Id. ¶ 7. Barnes’ vehicle was in the designated bicycle lane, obstructing

Hutton’s ability to proceed in the designated bicycle lane. Id. ¶ 8. Hutton, at that

point, attempted to pass Barnes’ vehicle on the left side so he could continue riding

his bicycle in the designated bicycle lane. ¶ 9. After meeting at a stoplight, Hutton

asked Barnes to move out of the designated bicycle lane. Id. ¶ 10. Barnes did not

comply with the request, but instead began to weave his vehicle in and out of the

bicycle lane, as well as increase and decrease the speed of his vehicle, all the while

obstructing Hutton’s path in the bicycle lane. Id. ¶ 11. Hutton and Barnes met again

at a stoplight, at which point, Barnes exited his vehicle and beat and injured Hutton.

Id. ¶¶ 12, 23.

At some point following the incident, a call was made to the Chicago Police

Department to report to the scene. SAC ¶ 14. An ambulance arrived shortly after the

incident to assess and/or treat Hutton. Id. ¶ 15. After the ambulance arrived, Chicago

Police Officers Hakeem Qazi and Brian Galvan responded to the scene. Id. ¶ 16.

2The Court accepts as true all of the well-pleaded facts in the complaint and draws all

reasonable inferences in favor of the plaintiff. Platt v. Brown, 872 F.3d 848, 851 (7th Cir.

2017).

Officer Galvan took Hutton’s statement while Hutton was being evaluated and/or

treated in the ambulance. Id. ¶ 17. Meanwhile, Officer Quazi took Barnes’ statement.

Id. ¶ 18. After learning that Barnes was a Chicago Police Officer, Officers Quazi

and/or Galvan requested a sergeant report to the scene. Id. ¶ 56. Sergeant Thomas

Polick then arrived upon the scene. Id. ¶ 57. After Hutton gave his initial statement

to Officer Galvan, Hutton was taken by ambulance to the hospital. Id. ¶ 19.

Hutton subsequently filed this action against Barnes, alleging state law claims

for battery and assault, and a claim for excessive force pursuant to 42 U.S.C. § 1983

(Counts I, III, and V), and the City, seeking to hold the City responsible for Barnes’

conduct based on the theory of respondeat superior (Counts II, IV) and alleging a

Monell claim. SAC. The City now moves to dismiss Count VI of the SAC pursuant to

Federal Rule of Civil Procedure 12(b)(6). Mot. Dismiss.

Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,

820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and

plain statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual

allegations, accepted as true, sufficient to “state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (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 (citing

Twombly, 550 U.S. at 556). The allegations “must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are

entitled to the assumption of truth are those that are factual, rather than mere legal

conclusions. Iqbal, 556 U.S. at 678–79.

Analysis

In Count VI, Hutton asserts a Monell claim against the City of Chicago.

Specifically, Hutton alleges that the City has an unwritten custom, policy, or practice

whereby investigating Chicago Police Officers refused or declined to, among other

things, adequately investigate and/or arrest Chicago Police Officers implicated in

criminal conduct. SAC ¶¶ 60–64.

A municipality may be held liable under Section 1983 only “when execution of

a government’s policy or custom . . . inflicts the injury that the government as an

entity is responsible for under § 1983.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.

658, 694 (1978). Under Monell, “[a] municipality is a ‘person’ under § 1983 and may

be held liable for its own violations of the federal Constitution and laws.” First

Midwest Bank, Guardian of the Estate of Michael D. LaPorta v. City of Chi., 2021 WL

684365, at *4 (7th Cir. Feb. 23, 2021) (citing Monell, 436 U.S. at 690–91). “[A]

municipality cannot be held liable for the constitutional torts of its employees and

agents” under the doctrine of respondeat superior. Id. (citing Monell, 436 U.S. at 690–

91). For a plaintiff to prevail on Section 1983 claim under Monell, he “must challenge

conduct that is properly attributable to the municipality itself.” Id. (citing Bd. of Cnty.

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403–04 (1997)).

To state a Monell claim, a plaintiff must allege that his or her constitutional

injury was caused by: “(1) an express policy that would cause a constitutional

deprivation if enforced; (2) a common practice that is so widespread and well-settled

that it constitutes a custom or usage with the force of law even though it is not

authorized by written law or express policy; or (3) an allegation that a person with

final policy-making authority caused a constitutional injury.” Rossi v. City of Chi.,

790 F.3d 729, 737 (7th Cir. 2015) (internal citations omitted); Mack v. City of Chi.,

2020 WL 7027649, *5 (N.D. Ill. Nov. 30, 2020). The plaintiff must also plead that the

policy or custom is the “moving force of the constitutional violation.” Monell, 436 U.S.

at 694–95.

The City moves to dismiss Count VI on the basis that Hutton’s claim falls

under the second category of Monell claims but that Hutton fails to allege sufficient

facts to support a claim that the City maintains widespread policies or practices that

violated his constitutional rights. Mot. Dismiss at 2, 4. According to the City, Hutton

has not alleged any facts, other than his own single incident, that show a widespread

custom or policy of investigating Chicago Police Officers refusing or declining to

adequately investigate, discipline, charge, report, or arrest fellow Officers. Id. at 5.

Courts in this District, submits the City, dismiss Monell claims where a plaintiff

alleges only his own incident as an example of a policy or custom without alleging

multiple such incidents. Id. (citing Alcorn v. City of Chi., 2018 WL 3614010, at *17

(N.D. Ill. July 27, 2018); Jordan v. Klamenrus, 2020 WL 4547879, at *5 (N.D. Ill. Aug.

6, 2020); Turner v. City of Chi., 2020 WL 1548957 at *2–3 (N.D. Ill. Mar. 31, 2020);

Jones v. Hunt, 2020 WL 814912, at *2 (N.D. Ill. Feb. 19, 2020); Bishop v. White, 2019

WL 5550576, at *5 (N.D. Ill. Oct. 28, 2019); Carmona v. City of Chi., 2018 WL

1468995, at *3 (N.D. Ill. Mar. 26, 2018)). In short, the City argues that because

Hutton fails to allege more than one incident from which the Court can infer that the

City has a widespread policy or practice that contributed to the violation of Hutton’s

constitutional rights, Hutton’s claim fails. Id. at 6.

Hutton retorts3 that while courts sometimes consider allegations of other

similar instances of misconduct in determining the sufficiency of a Monell claim, that

is not a requirement. R. 18, Resp. at 4. Indeed, asserts Hutton, a plaintiff need not

“identify every other or even one other individual” whose rights were violated because

of the same misconduct at the pleading stage. Id. at 4 (emphasis in original) (quoting

Jones v. Hunt, 2020 WL 814912, at *2 (N.D. Ill. Feb. 19, 2020). Moreover, argues

Hutton, the fact that a plaintiff’s complaint fails to point to “a specific, articulated

policy of the city is not fatal to a plaintiff’s claim.” Id. at 5. Instead, Hutton submits

that the inquiry is whether the facts alleged in a complaint, together with reasonable

inferences to be drawn from them, could lead a reasonable factfinder to conclude that

3Hutton, in his Response, also argues that discovery has revealed a coordinated cover-up of

Barnes’ conduct based on the fact that he was a Chicago Police Officer. Resp. at 6. In its

Reply, the City urges the Court to disregard this argument, as Hutton seeks to amend his

complaint via his Response, which is improper. R. 20, Reply at 2–3. The Court agrees and

does not consider this argument in resolution of the City’s motion. See Pirelli Armstrong Tire

Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011) (holding

that it is an axiomatic rule that a “plaintiff may not amend his complaint in his response

brief.”)

the actions of the City and its employees, by which a plaintiff was constitutionally

deprived of his right to bodily integrity, were the product of some policy or custom of

the municipal entity. Id. (citing Powe v. City of Chi., 664 F. 2d 639, 650 (7th Cir.

1981)).

Hutton is correct that “there is no blanket rule that Monell plaintiffs must

always allege multiple instances of unconstitutional conduct in order to show that a

policy exists.” Jackson v. Vill. of Justice, 2020 WL 1530734, *3 (N.D. Ill. Mar. 31,

2020). The central issue then is as follows: how many, if any, other instances, must a

plaintiff plead for a Monell claim based on widespread policy to survive a 12(b)(6)

motion to dismiss? The SAC identifies no express policy or injury at the hand of a

final policymaker, and Hutton does not argue in his Response that he relies on either

theory. As such, the Court agrees with the City that his Monell claim is of the second

type, and is based upon an informal policy that is so widespread, though unwritten,

that it carries the force of policy. See Rossi, 790 F.3d at 737.

In White v. City of Chicago, 829 F.3d 837, 840–41 (7th Cir. 2016) the plaintiff

alleged, under Monell, that the City of Chicago’s widespread practice of securing

arrest warrants on the basis of conclusory forms resulted in one officer falsely

arresting the plaintiff without probable cause. The District Court granted the City of

Chicago’s 12(b)(6) motion to dismiss, finding that the Monell claim was based solely

on his allegation that the arresting officer “acted in accordance with a widespread

practice of the police department of the City of Chicago when seeking a warrant.” Id.

at 843 (citing White v. City of Chi., 2014 WL 958714 at *2 (N.D. Ill. Mar. 12, 2014).

The Seventh Circuit disagreed, stating that federal courts may not apply a

heightened pleading standard to Monell claims. Id. at 843–44 (citing Leatherman v.

Tarrant Cnty. Narcotics Intel. and Coordination Unit, 507 U.S. 163, 164 (1993)). The

Seventh Circuit held that the 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.” Id. at 844. It found that the allegation in the

plaintiff’s complaint referring to the specific incident, together with the individual

claim against the police officer and the standard printed form for an arrest warrant

application was enough to satisfy Rule 8(a)’s “short and plain statement of the claim”

requirement. Id. “Since White, many courts have declined to grant motions to dismiss

that are premised on the argument that the complaint does not contain allegations

beyond those relating to the plaintiff.” Mack, 2020 WL 7027649, *5 (collecting cases).

Since White, however, courts in this District, as noted by the City, have

generally concluded that to properly state a Monell claim based on a custom or

policy—absent context creating an inference of a widespread policy or custom, as in

White—a plaintiff must allege more than his own single occurrence. Reply at 2 (citing

Alcorn, 2018 WL 3614010, among other cases) (emphasis added). The rationale

underpinning these decisions is that to adequately plead a Monell claim, a plaintiff

“must identify other instances of misconduct similar to what he has experienced in

order to show that there is a true municipal policy at issue, and not a random event.”

Mack, 2020 WL 7027649, at *5 (internal quotations and citations omitted). No bright

line exists as to how many violations it takes to make out a Monell claim, but as noted

above, generally “one instance is not enough.” Slabon v. Sanchez, 2020 WL 5763760,

at *11 (N.D. Ill. Sept. 28, 2020) (citing Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d

293, 303 (7th Cir. 2010)). The Court finds Jackson, 2020 WL 1530734, instructive.

In Jackson, the plaintiff brought a civil rights action against the defendant

Village and several police officers, alleging excessive force by the officers. 2020 WL

1530734, at *1. He alleged a claim under Monell’s second category, asserting that the

Village had failed to properly train its officers, lacked adequate policies related to

training, and maintained a code of silence, which ratified officer misconduct. Id. at

*3. The Village moved to dismiss the plaintiff’s Monell claim, arguing that the

plaintiff failed to allege any other instance of unconstitutional conduct in which police

offers were not reprimanded or disciplined, or that supported the existence of a code

of silence. In granting the motion to dismiss, the District Court pointed out that “there

is no blanket rule that Monell plaintiffs must always allege multiple instances of

unconstitutional conduct in order to show that a policy exists.” Id. Context matters,

and context sometimes allows for a single instance of misconduct to support a Monell

claim where it supports an inference that a systemic policy or custom exists. Id. at

*3–4. However, in Jackson, the court noted that the plaintiff’s allegations were

specific to the plaintiff and did not suggest a custom or practice. Id. at *4. Rather, the

plaintiff “essentially argu[ed] that because he was subjected to excessive force” by the

defendant police officer, the Village as a whole had a widespread policy or custom.

The court found that this was “too large of a logical leap to make.” Id.

Like Jackson, in this case more than one instance must be alleged to make out

a plausible inference of the existence of a widespread but unwritten policy or custom

of Chicago Police Officers failing to investigate the criminal conduct of off-duty Police

Officers like Barnes. Hutton alleges that the investigating Police Officers failed to

adequately investigate and/or arrest Barnes because of his status as an off-duty

Chicago Police Officer. SAC § 63. Hutton, however, does not point to any other similar

misconduct that might suggest the existence of such a custom or policy. That is,

Hutton “must set forth some facts that his incident was not an isolated or random

occurrence.” Turner, 2020 WL 1548957 at *2. Hutton has not pled “enough facts to

nudge his claim across the line from conceivable to plausible.” Jones, 2020 WL

814912, at *3 (citing Twombly, 550 U.S. at 570). The Court cannot make the logical

leap to infer that there is a widespread custom or policy.

Conclusion

For the foregoing reasons, Defendant City of Chicago’s Motion to Dismiss

Count VI of Plaintiff's Second Amended Complaint [15] is granted, and the Court

dismisses Count VI without prejudice. Plaintiff is granted leave to file an Amended

Complaint on or before 03/24/2021. A status hearing is set for 04/01/2021 at 9:30 a.m.,

but to track the case only (no appearance is required; the case will not be called).

Dated: March 3, 2021 nntbrlaw 7 ob. □

United States District Judge

Franklin U. Valderrama

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