Cuevas v. Hernandez

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Carlos Cuevas, )

)

Plaintiff, ) Case No. 19 CV 8347

)

v. )

) Judge John Robert Blakey

Benjamin Hernandez (Star #254), )

et al. )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Carlos Cuevas sues Berwyn Police Officers Benjamin Hernandez,

Joseph Green, and Juan Salgado pursuant to 42 U.S.C. § 1983, alleging excessive

force (Count I), false arrest/unlawful detention (Count II), conspiracy (Count III),

failure to intervene (Count IV), and fabrication of evidence (Count V); Plaintiff also

seeks indemnification from the City of Berwyn for the individual Defendants’ liability

(Count VI). Defendants jointly move to dismiss Counts II, III, and V for failure to

state a claim.1 See [37]. For the reasons stated below, this Court denies the motion.

I. The Complaint’s Allegations

This case arises out of an interaction between Plaintiff and the individual

Defendants that took place on the night of December 28, 2017. [34] ¶ 1. Defendants

Hernandez, Green, and Salgado all serve as Berwyn Police Officers employed by

Defendant City of Berwyn, and were at all relevant times acting under color of law

1 Defendants answered Counts I, IV, and VI. See [39], [40].

as Berwyn Police Officers within the course and scope of their employment. Id. ¶ 6.

Defendant City of Berwyn is a municipal corporation which employs or employed the

individual Defendants at the time of the alleged events. Id. at ¶ 5.

Sometime late in the evening on December 28, 2017, Plaintiff’s newborn

daughter, Lucia, needed urgent medical care for significant health problems she had

experienced since birth. Id. ¶ 10. Plaintiff’s wife, Fatima, waited for Plaintiff to

return home from work so she could take Lucia to the hospital while Plaintiff

remained at home with their elder daughter, Ximena. Id. ¶¶ 11, 16. When Plaintiff

arrived home, Fatima and Lucia left for the hospital. Id. ¶ 13. Ximena, who was

dressed for bed given the lateness of the hour, wanted to wave goodbye to her mother

and sister as they left for the hospital. Id. ¶¶ 12, 15. So Plaintiff took Ximena to the

window located in the interior hallway of their apartment building, where they

watched Fatima and Lucia leave. Id. ¶¶ 16, 18. Upon returning to their apartment

door and attempting to re-enter, Plaintiff found that the door had closed behind them,

locking them out. Id. ¶ 19. Plaintiff had neither his keys nor a working cell phone.

Id. ¶¶ 8, 20. Unable to contact his wife, and unable to obtain assistance from his

neighbors given the time, Plaintiff decided to call the police in order to gain access to

his apartment. Id. ¶¶ 21–23.

Still wearing his jacket from work, Plaintiff took Ximena into his arms and

placed her within his jacket, securing it around her so that she remained covered and

warm at all times. Id. ¶ 27. Plaintiff then carried Ximena inside his jacket to the

closest open business with a phone—a nearby gas station located about 600 feet away

from his apartment building. Id. ¶¶ 23, 28. It took Plaintiff three minutes or less to

get inside the gas station from his apartment building. Id. ¶ 29. During those three

minutes, Ximena was wrapped in his jacket, protected from the cold. Id. Once inside

the gas station, Plaintiff called the police and waited for them to arrive. Id. ¶ 31.

Defendants Hernandez and Salgado arrived on the scene, followed by

Defendant Green, and Plaintiff told them what had happened. Id. ¶¶ 33–34. Rather

than assist Plaintiff, Defendants accused Plaintiff of having drugs (though they found

no drugs after searching Plaintiff); the police then took Plaintiff and his daughter to

the hospital. Id. ¶¶ 36, 38, 40.

After releasing Ximena to her mother at the hospital, Defendants arrested

Plaintiff for willfully or knowingly endangering the life of his child, Ximena, under

720 ILCS 5/12C-5. Id. ¶¶ 43–44; [39] ¶ 44. Defendants never sought medical care

for Ximena, even though they had brought her to a hospital. [34] ¶ 42.

Plaintiff alleges that the Defendant officers fabricated evidence and took overt

acts in furtherance of their conspiracy to deprive Plaintiff of his constitutional rights,

which included: (1) filing a false criminal complaint against Plaintiff when

Defendants knew Plaintiff had not endangered the life of his child; (2) writing a false,

misleading, and incomplete police report; (3) filing a false DCFS report claiming that

Ximena had been neglected, when she had not; (4) providing false statements to

prosecutors that Ximena’s life was endangered and that Plaintiff had taken Ximena

outside for an extended period of time; and (5) making false statements under oath

in the criminal trial against Plaintiff. Id. ¶ 70.

Following his arrest, Plaintiff was held in custody until he could post bond. Id.

¶ 48. Defendants’ pursuit of the criminal complaint against Plaintiff ultimately led

to a bench trial in state court, where Plaintiff was found not guilty. Id. ¶ 57.

Plaintiff filed this action on December 20, 2019. [1]. Following Defendants’

initial joint motion to dismiss, Plaintiff elected to amend his complaint, and filed the

operative complaint [34] on May 27, 2020. The operative complaint asserts six claims;

Defendants move to dismiss three of them under Federal Rule of Civil Procedure

12(b)(6). [37].

II. Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

a complaint must provide a “short and plain statement of the claim” showing that the

pleader merits relief, Fed. R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the

claim “and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also

contain “sufficient factual matter” to state a facially plausible claim to relief—one

that “allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 570). This plausibility standard “asks for more than a sheer

possibility” that a defendant acted unlawfully. Iqbal, 556 U.S. at 678. Thus,

“threadbare recitals of the elements of a cause of action” and mere conclusory

statements will not suffice. Tobey v. Chibucos, 890 F.3d 634, 639 (7th Cir. 2018)

(quoting Iqbal, 556 U.S. at 678). In evaluating a complaint under Rule 12(b)(6), this

Court accepts all well-pleaded allegations as true and draws all reasonable inferences

in the plaintiff’s favor. Iqbal, 556 U.S. at 678.

III. Discussion & Analysis

Defendants argue that Plaintiff fails to allege sufficient facts to support his

claims for (1) false arrest/unlawful detention (Count II); (2) conspiracy (Count III);

and (3) fabrication of evidence (Count V). [37] at ¶ 14. Defendants alternatively

argue that these claims must be dismissed because the Defendant Officers are

entitled to qualified immunity. Id. at ¶ 15. This Court will address these arguments

in turn.

A. Plaintiff’s False Arrest Claim (Count II)

In Count II, Plaintiff alleges that the individual Defendants violated his

constitutional rights when they falsely arrested and unlawfully detained him. To

prevail on a false arrest claim under § 1983, a plaintiff must show there existed no

probable cause for his arrest. Neita v. City of Chicago, 830 F.3d 494, 497 (7th Cir.

2016). In determining the existence of probable cause, this Court examines the facts

and circumstances known to the police officers at the time of the arrest. Id. at 497.

A police officer has probable cause to arrest if, “at the time of the arrest, the facts and

circumstances within the officer’s knowledge are sufficient to warrant a prudent

person, or one of reasonable caution, in believing . . . that the suspect has committed,

is committing, or is about to commit an offense.” Id. (quoting Gonzalez c. City of

Elgin, 578 F.3d 526, 537 (7th Cir. 2009)). The determination of probable cause

depends upon the elements of the underlying criminal offense. Stokes v. Bd. of Educ.,

599 F.3d 617, 622 (7th Cir. 2010). Here, the individual Defendants arrested Plaintiff

for violating 720 Ill. Comp. Stat. 5/12C-5, which provides that a person commits the

crime of endangering the life or health of a child when he knowingly: (1) causes or

permits the life or health of the child to be endangered; or (2) causes or permits a

child to be placed in circumstances that endanger the child’s life or health.

In moving to dismiss, Defendants argue that Plaintiff’s allegations

demonstrate that they possessed probable cause to arrest him. [38] at 6–7. Not so.

Plaintiff alleges that Defendants lacked probable cause to arrest him for this (or any

other) offense because they knew that he had not knowingly endangered his

daughter’s health or life. Instead, they knew from Plaintiff’s statement that, even

though Plaintiff took his daughter out in her pajamas late at night during the winter,

he did so only because he had been locked out of his apartment by accident, and that

he kept her swaddled in his jacket the entire time to shield her from the cold. Plaintiff

further alleges that Defendants, in fact, knew neither Ximena’s life nor health had

been endangered, as evidenced by the fact that they never sought medical treatment

for her. Plaintiff’s allegations, taken as true at this stage, properly allege an absence

of probable cause that Plaintiff committed, was committing, or was about to commit

the crime of child endangerment at the time of arrest, and thus that Defendants

lacked probable cause to arrest him. Neita, 830 F.3d at 497. Based upon these

allegations, the Court denies Defendants’ motion to dismiss Count II.

B. Plaintiff’s Conspiracy Claim (Count III)

In Count III, Plaintiff alleges that Defendants conspired to deprive him of his

constitutional rights. A conspiracy claim under § 1983 requires Plaintiff to show that

Defendants made an expressed or implied agreement to deprive Plaintiff of his

constitutional rights, and that their overt acts in furtherance of the agreement

actually caused a deprivation of his rights. Hegwood v. City of Berwyn, No. 09-C-

7344, 2011 WL 3882558 at *6 (N.D. Ill. Sept. 2, 2011) (citing Williams v. Seniff, 342

F.3d 774, 785 (7th Cir. 2003)).

Defendants contend that Plaintiff has failed to state a claim for conspiracy

because Plaintiff “does not properly allege when a conspiratorial agreement between

the Defendant Officers was formed or what the terms of this alleged conspiracy

actually were.” [38] at 12. The Court disagrees. Initially, to survive a motion to

dismiss, Plaintiff need not plead the exact terms of the conspiracy with specificity;

indeed, “conspiracies are often carried out clandestinely and direct evidence is rarely

available.” Beaman v. Freesmeyer, 776 F.3d 500, 511 (7th Cir. 2015); see also

Williams, 342 F.3d at 785. Instead, Plaintiff can rely upon circumstantial evidence

to allege a conspiracy, as long as that evidence does not rest upon speculation. Id.

Here, Plaintiff pleads that the individual Defendants conspired with each

other to “cover up” their use of excessive force and for falsely arresting him; he also

alleges that Defendants formed this conspiracy “after the officers failed to find drugs

. . . and before Ximena was given to her mom.” [34] ¶ 69. Plaintiff additionally pleads

that Defendants acted in furtherance of this agreement by: filing a false criminal

report against Plaintiff for endangering the life of his child when Defendants knew

Plaintiff had not done so; writing a false, misleading, and incomplete police report;

filing a false DCFS report claiming Ximena had been neglected when Defendants

knew Plaintiff had protected her from the cold; providing false statements to

prosecutors that Plaintiff had endangered his child’s life; and making false

statements under oath at Plaintiff’s criminal trial. Id. ¶ 70(a)-(e). These factual

allegations (again, taken as true at this early stage of the proceedings) state a

plausible claim for conspiracy. See Iqbal, 556 U.S. at 678. Accordingly, the Court

denies Defendants’ motion to dismiss Count III.

C. Plaintiff’s Fabrication of Evidence Claim (Count V)

In Count V, Plaintiff alleges that Defendants fabricated evidence, including

false police reports, a false criminal complaint, a false claim of neglect to DCFS, and

false statements to prosecutors. Defendants move to dismiss this claim, arguing that

Plaintiff’s allegations are entirely “conclusory” and should be given little weight. [38]

at 14.

Plaintiff does not specifically say in his complaint which constitutional right

he claims Defendants violated when they fabricated evidence. But, to the extent he

is seeking to claim a violation of his Fourteenth Amendment due process right, the

Court agrees that the claim necessarily fails, but not for the reason Defendants urge.

“Allegations of evidence fabrication may state a colorable due process claim” but only

when the fabricated evidence results in a deprivation of liberty. See, e.g., Bianchi v.

McQueen, 818 F.3d 309, 319 (7th Cir. 2016). Plaintiff alleges that he was “improperly

placed in custody before he was able to post bond,” then found not guilty following a

bench trial. [34] at ¶¶ 48, 57. And Plaintiff’s release on bond and acquittal at trial

foreclose a § 1983 claim based upon fabrication of evidence claim in this Circuit. See

Bianchi, 818 F.3d at 315 (plaintiff who was immediately released on bond and

acquitted of all charges suffered no liberty deprivation and thus no due-process

violation); Saunders-El v. Rohde, 778 F.3d 556, 561 (7th Cir. 2015) (plaintiff who was

released on bond following his arrest and acquitted at trial cannot make out an

evidence fabrication-based due process violation); Fox v. Hayes, 600 F.3d 819 (7th Cir.

2010) (declining to allow an acquitted plaintiff who suffered pretrial detention to

bring a due process claim for fabrication of evidence); Brooks v. City of Chi., 564 F.3d

830 (7th Cir. 2009) (same). Because the law precludes Plaintiff from asserting a

fabrication of evidence claim based upon the current allegations, the Court finds that,

to the extent Count V claims a violation of his Fourteenth Amendment due process

rights, it must be dismissed.

Plaintiff’s allegations, however, also implicate the Fourth Amendment. E.g.

Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019) (“the Fourth Amendment, not

the Due Process Clause, governs a claim for wrongful pretrial detention”). Although

Plaintiff’s allegations do not specifically allege that Defendants’ false statements

formed the basis for any probable cause determination or pretrial detention, he does

allege, that Defendants fabricated police reports and made false statements to justify

their decision to arrest Plaintiff, to initiate criminal proceedings against Plaintiff,

and to refer the matter to DCFS. He alleges, in other words, that Defendants

knowingly and intentionally made false statements to support their probable cause

narrative, and such allegations sufficiently state a Fourth Amendment claim. E.g.,

Washington v. Haupert, 481 F.3d 543, 551 (7th Cir. 2007) (fabricating a police report

to justify an arrest violates the Fourth Amendment). This is so whether Defendants

fabricated evidence to support their arrest or to support a judicial determination of

probable cause. Indeed, under Manuel v. City of Joliet, ––– U.S. ––––, 137 S.Ct. 911,

920 (2017), which holds that detention without probable cause violates the Fourth

Amendment when it precedes, and when it follows, the start of legal process in a

criminal case, the distinction is immaterial. Plaintiff may proceed on Count V.

D. Qualified Immunity

Finally, Defendants argue that, even if Plaintiff has sufficiently stated his

claims, the Court should nonetheless dismiss the challenged counts because the

doctrine of qualified immunity shields Defendants from liability.

While defendants normally present a qualified immunity defense on summary

judgment, a court may, in some circumstances, consider the argument on a motion to

dismiss. E.g., Rusinowski v. Vill. of Hillside, 835 F. Supp. 2d 641, 650 (N.D. Ill. 2011);

Stevens v. Umsted, 131 F.3d 697, 706 (7th Cir. 1997). Dismissing a § 1983 suit at the

initial pleading stage based upon qualified immunity is a “delicate matter”: “on the

one hand, qualified it immunity is a defense to suit rather than just liability, and

should be addressed as early as possible”; on the other hand, Federal Rule of Civil

Procedure 8 “does not require plaintiffs to anticipate a qualified immunity defense

and allege every fact needed to defeat it in the complaint.” Rusinowski, 835 F. Supp.

2d at 650. See also Chi. Bldg. Design v. Mongolian House, Inc., 770 F.3d 610, 613

(7th Cir. 2014) (a plaintiff ordinarily need not anticipate and attempt to plead around

affirmative defenses). Because affirmative defenses frequently turn on facts not

before the court at the pleading stage, dismissal is only appropriate when the factual

allegations unambiguously establish all of the elements of the defense. Brooks v.

Ross, 578 F.3d 574, 579 (7th Cir. 2009). That is, the plaintiff “must affirmatively

plead himself out of court.” Chi. Bldg. Design, 770 F.3d at 614. That is not the case

here.

Qualified immunity “shields government officials from liability under § 1983

‘for actions taken while performing discretionary functions, unless their conduct

violates clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Gruenberg v. Gempeler, 697 F.3d 573, 578 (7th Cir. 2012)

(citation omitted). Thus, courts must consider: (1) whether Plaintiff’s allegations

establish that Defendants violated a constitutional right; and (2) whether that

constitutional right was clearly established at the time of Defendants’ conduct.

Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473 (7th Cir. 2011) (citing

Siliven v. Ind. Dep’t. of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011)). A court

maintains discretion to decide which of the two prongs of the qualified immunity

analysis to address first in light of the circumstances in the case at hand. Id. (quoting

Siliven, 635 F.3d at 926.

Based on the current record, this Court finds dismissal under the doctrine of

qualified immunity inappropriate. Plaintiff sufficiently alleges that Defendants

lacked probable cause to arrest him for endangering the life or health of his child, and

there can be no question that, in 2017, the Fourth Amendment right to be free from

arrest without probable cause was clearly established. See, e.g., Driebel v. City of

Milwaukee, 298 F.3d 622, 652 (7th Cir. 2002) (“innumerable decisions rendered prior

to January 1998 have clearly established the right to be free from arrest without

probable cause.”); Jenkins v. Keating, 147 F.3d 577, 585 (7th Cir. 1998) (noting that

the constitutional right to be free from arrest without probable cause was clearly

established by at least 1991). Plaintiff also alleges that Defendants fabricated false

police reports to justify their decision to arrest him; again, there can be no dispute

that, in 2017, it was clearly established that fabricating a police report to justify an

arrest violated the Fourth Amendment right to be free from unreasonable seizure.

Washington, 481 F.3d at 551 (noting that, in 2001, a reasonable officer would have

understood that fabricating a police report to justify an arrest violated arrestees’ right

to be free from unreasonable seizure). Based upon the record at this stage of the

proceedings, this Court therefore denies Defendants’ motion to dismiss based upon

qualified immunity.

IV. Conclusion

For the reasons explained above, the Court denies Defendants’ motion to

dismiss Counts IT, III, and V [87]. Defendants shall file amended answers by April

16, 2021, and the parties shall file a joint status report by April 23, 2021, proposing

a reasonable fact discovery deadline, indicating whether they will need expert

discovery, and indicating whether they are interested in a settlement conference.

This Court will set case management deadlines in a future order.

Dated: March 26, 2021

Entered:

J Robert Blakey 7

United States District Judge

12