The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AGWU MONG,
Plaintiff
No. 21 CV 2420
v.
Judge Jeremy C. Daniel
STEVEN M. MCKENZIE et. al,
Defendants
ORDER
For the reasons stated in this order, the defendants’ motion to dismiss the plaintiff’s
amended complaint, R. 23, is granted in part and denied in part. All claims against
the City of Chicago (and the City of Chicago Law Department) are dismissed. The
plaintiff’s conspiracy, unlawful search, and excessive force claims are dismissed as to
each remaining defendant. The plaintiff’s unlawful arrest claim survives as to each
remaining defendant. The plaintiff has until December 15, 2023, to file an amended
complaint if he can do so consistent with Rule 11 of the Federal Rules of Civil
Procedure. Status hearing set for December 19, 2023, at 9:30 a.m.
STATEMENT
Plaintiff Agwu Mong filed a complaint alleging that Defendants City of Chicago (“the
City”), Steven McKenzie of the City Law Department, and Chicago Police Department
officers Jose Lisowski, Jesus Vasquez, Raul Cervantes, and Muniz (collectively, the
“Defendant Officers”) conspired to violate his civil rights by unlawfully arresting him,
unlawfully searching him, and using excessive force. R. 13. The defendants filed a
Rule 12(b)(6) motion to dismiss Mong’s first amended complaint. R. 23.
To survive a motion to dismiss under Rule 12(b)(6), a complaint only needs to contain
factual allegations that, when accepted as true, are sufficient to “state a claim that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 554-57 (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.” Id. at 678. When
considering a Rule 12(b)(6) motion to dismiss, the Court “must draw all reasonable
inferences in the plaintiff’s favor.” Vimich v. Vorwald, 664 F.3d 206, 212 (7th Cir.
2011). The Court, however, “need not accept as true statements of law or unsupported
conclusory factual allegations.” Bilek v. Fed. Ins. Co., 8 F.4th 581, 586 (7th Cir. 2021).
As a threshold matter, there appears to be some confusion as to whether the plaintiff
named the City of Chicago Law Department as a defendant. The defendants believe
so, given their argument that the Law Department cannot be sued. R. 23 at 13-14.
The Court understands the complaint to name the City of Chicago as a defendant, as
well as Steven McKenzie of the City of Chicago Law Department. Either way, neither
the City nor its Law Department are proper defendants in this case. “Local
governments are liable for damages under § 1983 only for violations of federal rights
that occur ‘pursuant to official municipal policy of some nature.’” Bradley v. Vill. of
Univ. Park, Ill., 929 F.3d 875, 884 (7th Cir. 2019) (citing Monell v. N.Y.C. Dep’t of Soc.
Servs, 436 U.S. 658, 691 (1978)). Here, the complaint seeks to establish Monell
liability by alleging there was a policy of “trespassing at 324 N. Lotus Ave[.], Chicago,
IL, 60644.” R. 13 at 3. But this only describes the specific action that the plaintiff
alleges was improper—not the custom, policy, or practice under which the trespass
occurred. As such, the complaint fails to state a claim against the City.
To the extent the complaint named the Law Department itself as a defendant, any
claims against the Law Department fail because it is “merely an instrumentality” of
the City with “no independent legal existence apart from the [City].” See Yachnin v.
Vill. of Libertyville, 803 F. Supp. 2d 844, 847 (N.D. Ill. 2011). As such, the complaint
fails to state a claim against the Law Department.
With respect to the remaining defendants, McKenzie and the Defendant Officers,
they contend dismissal of the complaint is warranted because it contains “no factual
allegations of misconduct.” R. 23 at 7. Though the plaintiff checked boxes for unlawful
search and excessive force, nothing in the complaint supports those allegations.
Unsupported conclusory factual allegations do not state a § 1983 claim. Bilek, 8 F.4th
at 586. Accordingly, the defendants’ motion to dismiss the plaintiff’s conspiracy,
unlawful search, and excessive force claims is granted.
The complaint does, however, contain allegations sufficient to state a claim for
unlawful arrest and conspiracy to commit unlawful arrest. To state a claim for
unlawful arrest, a plaintiff must plausibly allege “that he was arrested without
probable cause.” Snodderly v. R.U.F.F. Drug Enf’t Task Force, 239 F.3d 892, 899 (7th
Cir. 2001). “To state a civil conspiracy claim, ‘a plaintiff must allege an agreement
and a tortious act committed in furtherance of that agreement.’” Summerland v.
Exelon Generation Co., 510 F. Supp. 3d 619, 630 (N.D. Ill. 2020) (citation omitted).
Here, the complaint states that the Defendant Officers arrested the plaintiff without
probable cause and provides some information concerning the circumstances of his
arrest, including that on the day of his arrest, McKenzie sent a letter containing
inaccurate information to the Defendant Officers to have him falsely arrested. R. 13
at 2, 5. The complaint further alleges that “McKenzie and his associates have worked
together to sabotage [the plaintiff’s] works and relationships” and suggests that
McKenzie used the “false arrest to deter [the plaintiff]” from fighting for his family
property. R. 13 at 5. These allegations state a claim for conspiracy and unlawful
arrest as to McKenzie and the Defendant Officers.
The defendants argue that the plaintiff cannot plausibly state an unlawful arrest
claim because footage from the Defendant Officers’ body-worn cameras (BWC)
demonstrates that the arrest was supported by probable cause. R. 23 at 8-12. “In
order to apply the ‘narrow’ doctrine of incorporation-by-reference, the BWC videos
need to be referenced in [the] complaint and central to his claim.” Brown v. City of
Chi., 594 F. Supp. 3d 1021, 1030 (N.D. Ill. 2022). The complaint does not mention the
Defendant Officers’ BWC videos at all, nor does the footage supply a basis for the
plaintiff’s claims. The incorporation-by-reference doctrine is therefore inapplicable,
and the Court declines to consider the BWC footage in resolving Defendants’ motion
to dismiss.
The defendants also argue that the plaintiff’s unlawful arrest claim should be
dismissed because his complaint did not identify the Defendant Officers as being
involved in any of the alleged constitutional deprivations. R. 23 at 6. But the plaintiff
identified the Defendant Officers in the complaint and a reasonable inference could
be drawn that it was these officers who participated in his arrest after receiving the
letter from McKenzie. Although the plaintiff will ultimately have to demonstrate that
each defendant was personally responsible for his unlawful arrest, the failure to
ascribe specific conduct to a specific officer is not fatal at this stage. See, e.g., Fulton
v. Bartik, 547 F. Supp. 3d 799, 810 (N.D. Ill. 2021) (denying motion to dismiss despite
the defendant’s argument that the plaintiff had failed to allege personal involvement
where the complaint attributed misconduct to collectively defined subgroups of
defendants).
Finally, the defendants argue that they are entitled to qualified immunity. Although
it is prudent to address qualified immunity promptly, dismissing on such grounds at
the motion to dismiss stage is inappropriate where ‘the existence of qualified
immunity . . . depend[s] on the particular facts of a given case.’” Brown, 594 F. Supp.
at 1039 (citation omitted). There are many factual issues remaining in this case,
including whether McKenzie intentionally provided outdated information to the
Defendant Officers and whether the Defendant Officers properly relied on that
information. These considerations do not allow the Court to decide the applicability
of qualified immunity at this time.
The Court grants the plaintiffs request for leave to amend his complaint. R. 33 at 3.
Leave to amend shall be freely given absent undue delay or prejudice to the opposing
party. Fed. R. Civ. P. 15(a), (b). Accordingly, the plaintiff will have 30 days to file a
second amended complaint if he can do so consistent with the Federal Rules of Civil
Procedure. <> .
Date: 11/14/2023 To
JEREMY C. DANIEL
United States District Judge