Vogen v. Village of Dwight

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

TIMOTHY VOGEN, )

)

Plaintiff, )

)

v. ) Case No. 1:23-cv-1446

)

VILLAGE OF DWIGHT and )

OFFICER WATSON MCKEE, )

)

Defendants. )

ORDER & OPINION

This matter is before the Court on Defendants’ Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). (Doc. 6). Plaintiff responded (doc. 8), making

this matter ripe for review. For the following reasons, Defendants’ Motion to Dismiss

is denied in part and granted in part.

BACKGROUND1

On December 13, 2023, Plaintiff Timothy Vogen (“Plaintiff”) filed a Complaint

against Watson McKee (“Officer McKee”), a police officer, and his employer, the

Village of Dwight (“Village”) (collectively referred to as “Defendants”). (Doc. 1). The

claims stem from an incident that occurred on December 20, 2022, after Officer

McKee responded to a call at Plaintiff’s house, where he lived with his fiancé, Melinda

McGraw, and their child. (Doc. 1 at 3). When Officer McKee arrived, Plaintiff was

1 The following facts are drawn from the allegations of the Complaint and are taken

as true for the purposes of this Order. See U.S. ex rel. Berkowitz v. Automation Aids,

Inc., 896 F.3d 834, 839 (7th Cir. 2018).

recording him from behind a fence on his property. (Doc. 1 at 1, 5, 8). He was shouting

at Officer McKee to “do [his] job[,]” with respect to the dispute Plaintiff was having

with his neighbor, Thomas Worby, at the property line. (Doc. 1 at 8). Plaintiff and his

family had experienced harassment from Worby, and at the time of the incident, had

a no-contact order against him. (Doc. 1 at 3–4). The police were called after Worby

violated the order by speaking to the Vogen family and pointing the edge of a rake at

Plaintiff’s face. (Doc. 1 at 5).

Officer McKee ordered Plaintiff to stop talking, told him to put his phone away,

and indicated that he was already recording on his body camera. (Doc. 1 at 8). Officer

McKee said, “[I]f you keep walking up to people and holding your phone up in their

face, somebody’s gonna do something bad to you,” and later stated that if a stranger

were to start recording him like Plaintiff had, he would “put ‘em on the ground.” (Doc.

1 at 10, 23). After his initial interaction with Plaintiff, Officer McKee turned his

attention to Worby, instructed him not to speak to McGraw, and asked Worby about

his version of the events. (Doc. 1 at 9–10).

McGraw explained to Officer McKee that Worby was hitting their fence with

his rake despite their no-contact order against him. (Doc. 1 at 10). She said that this

was her property, which prompted an acquaintance of Worby’s, who was also near

the property line, to drive a steel rod into the ground on Plaintiff’s side. (Doc. 1 at 10).

Plaintiff removed the rod from the ground and tossed it away. (Doc. 1 at 10). In

response, Officer McKee said “[D]on’t” and ordered Plaintiff to put his hands behind

his back. (Doc. 1 at 10, 11). After pleading with Officer McKee not to arrest him,

Plaintiff placed his hands behind his back to be handcuffed. (Doc. 1 at 11). While

Officer McKee led Plaintiff towards his police car, he excessively tightened the

handcuffs. (Doc. 1 at 11). Officer McKee attempted to place Plaintiff in the police car,

but Plaintiff started to breathe heavily, stated he was claustrophobic, and asked not

to be put in the car. (Doc. 1 at 12). Plaintiff was then slammed against the side of the

car and then onto the concrete where Officer McKee landed on top of him. (Doc. 1 at

12–13). For the second time, Officer McKee brought him towards the car and

attempted to force him in, slamming Plaintiff into the inside of the open car door

while Plaintiff protected his head. (Doc. 1 at 13, 14). Officer McKee tried a third time

to force him into the car, but Plaintiff was slammed onto the concrete ground again,

and, after he repeatedly stated that he could not breathe, Officer McKee pressed his

body weight against him and elbowed his chest. (Doc. 1 at 14). Plaintiff sustained

multiple serious injuries, both physical and psychological, from this incident. (Doc. 1

at 15).

The instant lawsuit includes eight claims against the Defendants. Counts I

and II, brought against Officer McKee, allege violations of Plaintiff’s Fourth

Amendment rights pursuant to 42 U.S.C. § 1983 for false arrest and the use of

excessive force. (Doc. 1 at 16–22). Count III uses 42 U.S.C. § 1983 to allege against

Officer McKee a violation of Plaintiff’s First Amendment rights. (Doc. 1 at 22–25).

Count IV attempts to hold the Village accountable for the unconstitutional actions of

Office McKee under a theory of Monell liability. (Doc. 1 at 25–27). Counts V and VI

are state-law claims of willful and wanton conduct and battery alleged against Officer

McKee. (Doc. 1 at 27–30). Counts VII and VIII are claims of respondeat superior and

indemnification, seeking to hold the Village liable for Officer McKee’s conduct under

state law. (Doc. 1 at 30–31). Defendants move to dismiss all the claims contained in

the Complaint. (Doc. 6).

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6), the complaint must contain “a short and plain statement”

of the plaintiff’s claim sufficient to plausibly demonstrate entitlement to relief. Fed.

R. Civ. P. 8(a); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

“Rule 8(a)’s notice pleading standard applies to pendant state law claims that are

pleaded in federal court.” Christensen v. Cnty. of Boone, IL, 483 F.3d 454, 459 (7th

Cir. 2007). When considering a motion to dismiss, the Court construes the complaint

in the light most favorable to the plaintiff, accepting all well-pleaded factual

allegations as true and drawing “all reasonable inferences from those facts in favor

of the plaintiff.” Berkowitz, 896 F.3d at 839. Those statements which are legal

conclusions rather than factual allegations are not taken as true but are disregarded

at this stage. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.

2012).

DISCUSSION

As stated, the Complaint contains eight counts: five against Officer McKee and

three against the Village. Defendants’ Motion pertains to all eight counts. Plaintiff

brings claims under 42 U.S.C. § 1983 and § 1988, authorizing this Court to address

Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331 and § 1343.2 There is

supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the related state-law

claims.

The Court reminds Plaintiff that a wide variety of constitutional rights are

enforced by using § 1983. These rights are incorporated and applied to the states by

the Fourteenth Amendment’s Due Process Clause. See McDonald v. City of Chi., 561

U.S. 742, 763 (2010). They include the Fourth Amendment’s protections against

unreasonable searches and seizures and the free-speech protections of the First

Amendment. Thus, Plaintiff’s constitutional claims are derived from the Fourteenth

Amendment, and his Complaint should reflect that—Plaintiff must amend his

pleading to modify any constitutional claims to also allege violations under the

Fourteenth Amendment. The Court sua sponte dismisses Counts I, II, and III without

2 Plaintiff does not indicate that he was charged with any criminal offense after the

altercation on December 20, 2022. At this time, the Court does not believe there is an

ongoing criminal proceeding that would implicate the abstention principles

articulated in Younger v. Harris, 401 U.S. 37, 54 (1971), or bar the claims under Heck

v. Humphrey, 512 U.S. 477, 487 (1994).

prejudice3 for this reason; however, Defendants’ arguments as to those claims will be

discussed here for the purpose of efficiency.

I. Count I

Count I is brought pursuant to § 1983 and alleges Officer McKee falsely

arrested Plaintiff in violation of his Fourth Amendment rights. (Doc. 1 at 16). To state

a false-arrest claim, Plaintiff must plead that he was arrested without probable

cause. See Johnson v. Myers, 53 F.4th 1063, 1068 (7th Cir. 2022) (citing Gaddis v.

DeMattei, 30 F.4th 625, 630 (7th Cir. 2022)). In moving to dismiss, Defendants argue

that Plaintiff has pleaded sufficient facts to establish Officer McKee had probable

cause to arrest Plaintiff for three offenses: disorderly conduct, resisting arrest, and

obstructing a peace officer. (Doc. 6 at 5–6). In response, Plaintiff criticizes Defendants’

“alternative characterizations” of the allegations of the Complaint as being in the

light most favorable to them and being more “inflammatory and aggressive” than

pleaded. (Doc. 8 at 5).

The existence of probable cause typically depends on the elements of the

criminal offense as defined by state law. See Doe v. Gray, 75 F.4th 710, 718 (7th Cir.

2023) (cleaned up); see also Stokes v. Bd. of Educ., 599 F.3d 617, 622 (7th Cir. 2010)

(“A police officer’s probable cause determination depends on the elements of the

3 If Plaintiff does not amend, the remaining federal claim will be dismissed without

prejudice, as the Monell claim will fail without an underlying constitutional violation.

See Swanigan v. City of Chicago, 775 F.3d 953, 962 (7th Cir. 2015) (“If the plaintiff

fails to [plead or] prove a [plausible] violation of his constitutional rights in his claim

against the individual defendants, there will be no viable Monell claim based on the

same allegations.”). The Court would likely decline to exercise supplemental

jurisdiction over the pending state-law claims.

applicable criminal statute.”). Under Illinois statute, disorderly conduct is committed

when one knowingly “does any act in such unreasonable manner as to alarm or

disturb another and to provoke a breach of the peace.” 720 ILCS 5/26-1(a)(1). The

Complaint alleges that Plaintiff shouted at Officer McKee when he arrived, was told

to stop talking, and later tossed a rod on his own property. (Doc. 1 at 8, 10). These

allegations are not enough to constitute disorderly conduct. See, e.g., Idris v. Conway,

No. 12 C 6271, 2014 WL 4244222, at *6 (N.D. Ill. Aug. 27, 2014) (“Illinois courts have

consistently held that arguing with a police officer, even if done loudly, or with

profane or offensive language, will not in and of itself constitute disorderly conduct.”).

The allegations related to Plaintiff’s conduct do not demonstrate that the actions

constituted harassment, were inherently unlawful, or were taken “in such an

unreasonable manner as to alarm or disturb [Officer McKee] and provoke a breach of

the peace.” Gaddis, 30 F.4th at 631. Construing the Complaint in the light most

favorable to Plaintiff as required at this pleading stage, with all reasonable inferences

in his favor, he has not pleaded himself out of court on the issue of probable cause.

Plaintiff shouted and tossed a metal rod—he does not allege that he tossed it towards

another person or in a violent manner, as Defendants argue. To the extent

Defendants dispute the factual allegations and assert that Plaintiff’s actions were

more inflammatory than he pleaded, that is not a question for the Court to decide at

this stage. See United States v. Ellis, 499 F.3d 686, 688 (7th Cir. 2007) (explaining

how probable cause may be properly analyzed by a court as a question of law if there

are no factual disputes). As pleaded, the Complaint allows for the plausible inference

that Officer McKee did not have probable cause to arrest Plaintiff for disorderly

conduct.

The next issue is whether Plaintiff plausibly alleges that Officer McKee did not

have probable cause to arrest him for resisting arrest and obstructing the

performance of official functions in violation of Illinois law. (Doc. 6 at 6). This offense

is committed when one knowingly “(1) resists arrest, or (2) obstructs the performance

by one known to the person to be a peace officer, firefighter, or correctional institution

employee of any authorized act within his or her official capacity[.]” 720 ILCS 5/31-

1(a). Despite Defendants’ colorful depictions of Plaintiff’s behavior, there are no

allegations pleaded in the Complaint that indicate any of Plaintiff’s actions

obstructed the performance of Officer McKee’s official functions, and Defendants do

not cite statements in the Complaint in support of their argument. Additionally,

Defendants cannot argue that Plaintiff resisted arrest and therefore violated 5/31-

1(a) because the allegations in the Complaint do not demonstrate that he committed

an underlying offense as required by Subsection (d). See 5/31-1(d) (noting that an

individual “shall not be subject to arrest for resisting arrest . . . unless there is an

underlying offense for which the person was initially subject to arrest.”). Therefore,

Defendants’ argument that Officer McKee had probable cause is without merit.4

4 The Court notes that Defendants may ultimately establish that Officer McKee

reasonably believed that he had probable cause to arrest Plaintiff, but at this stage

in the proceedings, “it is too early to determine the issue[.]” Romando v. City of

Naperville, No. 20 C 2701, 2021 WL 1853304, at *3 (N.D. Ill. May 10, 2021); see also

Higgins v. Village of Lyons, 661 F. Supp. 3d 816, 820, 822 (N.D. Ill. 2023) (collecting

cases where the issue of probable cause was untimely on a motion to dismiss). Thus,

at this time, Defendants’ argument that Officer McKee had probable cause fails.

Therefore, the Complaint plausibly alleges that Officer McKee falsely arrested

Plaintiff.5 Defendants’ Motion is denied as to Count I; however, the Court sua sponte

dismisses the claim without prejudice for failure to plead under the Fourteenth

Amendment.

II. Count II

Count II is a § 1983 claim against Officer McKee for his use of excessive force

in violation of Plaintiff’s Fourth Amendment rights. (Doc. 1 at 20). These types of

claims “should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). To survive a motion to

dismiss, Plaintiff must allege that “in light of the totality of the facts and

circumstances,” Officer McKee used an objectively unreasonable amount of force. Id.

at 397. Objective reasonableness is evaluated from “the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight[,]” and is a fact-

intensive inquiry. Id. at 396; Alton v. City of Naperville, No. 16 CV 6640, 2016 WL

6877678, at *2 (N.D. Ill. Nov. 22, 2016) (citation omitted). In moving to dismiss,

5 Briefly, Defendants allude to the possibility that Officer McKee detained Plaintiff

as part of an investigative stop; thus, he did not need probable cause. (Doc. 6 at 5–6).

Although the Complaint alleges that Officer McKee told Plaintiff he was being

detained rather than arrested (doc. 1 at 11), “[i]t does not matter for current purposes

what label the officer applied at the scene; analysis under the [F]ourth [A]mendment

is objective.” United States v. Jackson, 377 F.3d 715, 717 (7th Cir. 2004) (citation

omitted). What the Complaint actually describes—handcuffing and attempting to

place Plaintiff in a police car—demonstrates the “hallmark[s] of a formal arrest[,]”

that at this stage of the proceedings, the Court cannot squarely say was within the

scope of an investigatory detention. Matz v. Klotka, 769 F.3d 517, 526 (7th Cir. 2014).

Thus, Defendants’ argument that Officer McKee conducted merely an investigatory

stop is not persuasive at this time.

Defendants attempt to demonstrate that Plaintiff was injured because he refused to

cooperate. (Doc. 6 at 6–8). Defendants cite to case law but make no arguments as to

how those sources are applicable—they do not explain why dismissal is appropriate

under these circumstances, and the Court will not do that for them. (Doc. 6 at 6).

In light of how courts “have determined that the necessary reasonableness

inquiry cannot usually be conducted at the motion to dismiss stage[,]” the Court will

not entertain a factual analysis of Officer McKee’s actions at this time, if that is what

Defendants are requesting. Pitzer, 708 F. Supp. 2d at 749. Motions to dismiss test the

legal sufficiency of a pleading, not the merits of a claim. See Alton, 2016 WL 6877678,

at *2. The Complaint alleges that Officer McKee seized Plaintiff and over-tightened

his handcuffs, tackled and slammed Plaintiff to the ground twice, violently slammed

Plaintiff into the side of the police car and the inside of the police car door, pushed

his bodyweight into Plaintiff after body-slamming him the first time, and dug his

elbow into Plaintiff’s chest after body-slamming him again. (Doc. 1 at 20). Plaintiff

alleges that he sustained injuries because of Officer McKee’s conduct. (Doc. 1 at 14–

16, 21). These allegations are sufficient to state a claim of excessive force at this stage

of the proceedings. See Matthews v. Prokopiuk, No. 23 C 455, 2024 WL 774872, at *6

(N.D. Ill. Feb. 26, 2024) (allowing an excessive force claim to proceed at the dismissal

stage because the plaintiff alleged that, after he attempted to flee, the officers “beat,”

“kick[ed],” and “punch[ed],” him, had one of their knees on his neck, and handcuffed

and shackled him too tightly, among other things, causing him to sustain injuries).

Therefore, Defendants’ Motion to Dismiss is denied as to Count II; however, as

earlier alluded, the Court sua sponte dismisses the claim without prejudice for failure

to plead under the Fourteenth Amendment.

III. Count III

Brought pursuant to § 1983, Count III alleges that Officer McKee arrested

Plaintiff in retaliation for the exercise of his First Amendment rights. (Doc. 1 at 22).

To state a retaliatory-arrest claim, Plaintiff must allege that “(1) he engaged in

activity protected by the First Amendment; (2) he suffered a deprivation that would

likely deter First Amendment activity in the future; and (3) the First

Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to

take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)

(citation omitted). A plaintiff bringing a retaliatory arrest claim must also “plead and

prove the absence of probable cause for the arrest.” Nieves v. Bartlett, 587 U.S. 391,

402 (2019). If the plaintiff demonstrates that the retaliation was a motivating factor

behind the arrest, the defendant can prevail only by showing that the arrest would

have been initiated without respect to retaliation. Id. at 404. In the alternative, a

plaintiff does not have to establish the absence of probable cause “when the plaintiff

presents objective evidence that he was arrested when otherwise similarly situated

individuals not engaged in the same sort of protected speech had not been.” Id. at

407.

The Complaint alleges that Plaintiff engaged in constitutionally protected

speech, including telling Officer McKee to “do his job,” videotaping him, taking

photos, verbally criticizing Officer McKee’s handling of the situation, and making

requests of Officer McKee. (Doc. 1 at 22–23). The subsequent arrest, he alleges, was

in retaliation for and motivated by those actions. (Doc. 1 at 24). The law is clear that

“[t]he act of making [a] recording is necessarily included within the First

Amendment’s guarantee of speech and press rights[.]” ACLU v. Alvarez, 679 F.3d 583,

595 (7th Cir. 2012). And “the First Amendment protects a significant amount of

verbal criticism and challenge directed at police officers” including “[t]he freedom

of individuals verbally to oppose or challenge police action without thereby risking

arrest.” Houston v. Hill, 482 U.S. 451, 461–63 (1987). Plaintiff’s allegations establish

the first element of a First Amendment retaliation claim—that he engaged in

protected activity. He has similarly alleged the second element, that he suffered a

deprivation that would likely deter First Amendment activity in the future, when he

pleaded that Officer McKee arrested him and used excessive force. (Doc. 1 at 23–24).

The third element, which Defendants challenge in their Motion, is the

requirement that Plaintiff show “his protected conduct was at least a motivating

factor of the adverse action.” Holleman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020)

(citation omitted). Defendants argue that there was “no connection between

Plaintiff’s alleged use of a cell phone camera, his alleged detention, and his alleged

injuries.” (Doc. 6 at 9). However, Officer McKee’s comments relating directly to

Plaintiff’s recording activity adequately support a plausible inference that Plaintiff’s

protected activity was at least a motivating factor in the decision to arrest him. (See

doc. 1 at 23) (noting comments by Officer McKee that he would put a stranger on the

ground for recording him like Plaintiff did, and that Plaintiff would get “what was

coming to him”). Plaintiff has adequately pleaded this element of his First

Amendment claim.

Defendants’ other argument for dismissal is that Officer McKee had probable

cause. As noted in the Court’s analysis of Count I, Plaintiff has satisfied, at this stage,

the general requirement that a plaintiff must plead “the absence of probable cause”

in his retaliatory arrest claim. Nieves, 587 U.S. at 402. Even if this were not the case,

Plaintiff alleges that Officer McKee treated him and Worby’s acquaintance

differently, although they were similarly situated and only Plaintiff engaged in

protected activity. At this stage of review, Plaintiff has stated a claim for retaliatory

arrest under the First Amendment. Thus, Defendants’ Motion to Dismiss is denied

as to Count III; however, the Court sua sponte dismisses the claim without prejudice

for failure to plead under the Fourteenth Amendment.

IV. Count IV

Count IV is a § 1983 claim that alleges the Village is responsible for the

violation of Plaintiff’s constitutional rights under a theory of municipal liability. (Doc.

1 at 25). A municipality may be held liable 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).

While “[a] municipality is a ‘person’ under § 1983 and may be held liable for its own

violations of the federal Constitution and laws,” it is not “liable for the constitutional

torts of its employees and agents” under the doctrine of respondeat superior. First

Midwest Bank, Guardian of the Estate of Michael D. LaPorta v. City of Chi., 988 F.3d

978, 977–78 (7th Cir. 2021) (citing Monell, 436 U.S. at 690–91). A plaintiff “must

challenge conduct that is properly attributable to the municipality itself.” Id.

(citations omitted). To state a Monell claim, a plaintiff must allege his 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) (citations omitted). 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.

In their Motion, Defendants argue that the Village may not be held liable

because the Complaint fails to allege the existence of a widespread custom of training

failures, or that Plaintiff suffered a constitutional injury. (Doc. 6 at 9–10, 12). In

response, Plaintiff contends that Defendants have mischaracterized his allegations

related to Monell liability. He states that Defendants wrongly focused on a failure-to-

train theory, while he is actually alleging liability based on a widespread practice of

“retaining officers known to be unfit for duty” and on the decision of a final

policymaker, the Village Board, that voted to retain Officer McKee. (Doc. 8 at 14).

The Complaint sufficiently alleges that Plaintiff has suffered a constitutional

violation—Defendant’s arguments in favor of dismissing Counts I–IV have proven

meritless. The next issue is whether Plaintiff has alleged a widespread-practice

theory of liability. The Complaint’s allegations include some related to Officer

McKee’s background: after he pleaded guilty to driving under the influence over a

decade ago, the Village Board voted to retain him as a police officer. (Doc. 1 at 5, 6).

Shortly after the vote, members of the community petitioned for the reversal of this

decision and gathered comments critical of Officer McKee. (See doc. 1 at 6) (alleging

that Officer McKee had “harassed many people in this town and set a bad example

as a police officer,” and “even before this incident, several residents made complaints

about” Officer McKee). Plaintiff alleges that the Village was aware of the complaints

against Officer McKee and his DUI and “failed to adequately discipline or train [him]

upon becoming aware of his criminal activity[.]” (Doc. 1 at 26). These failures, he

states, were moving forces behind the subsequent constitutional violations of which

he now complains. (Doc. 1 at 26).

A municipality is liable for a plaintiff’s constitutional injuries if they are caused

by a widespread practice “so permanent and well-settled that it constitutes a custom

or practice” of the municipality. Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d

509, 515 (7th Cir. 2007). Where a plaintiff premises his claim of municipal liability

on an alleged policy of inaction, a showing that municipal policymakers were actually

or constructively aware of “[a] pattern of similar constitutional violations . . . is

‘ordinarily necessary’ to demonstrate deliberate indifference . . . .” Connick v.

Thompson, 563 U.S. 51, 62 (2011) (citation omitted). Although the Seventh Circuit

has declined to adopt “bright-line rules defining a widespread custom or practice,”

generally a plaintiff must allege more than one, and sometimes more than three,

instances of misconduct. Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th

Cir. 2010). The other instances of misconduct must be similar enough to the

complained-of constitutional violations to make it plausible that the particular

custom or practice had the force of law. Calhoun v. Ramsey, 408 F.3d 375, 380 (7th

Cir. 2005).

In his Complaint, Plaintiff offers no other instances of unconstitutional

misconduct to establish a pattern. The Complaint does not allege any previous

incident during which Officer McKee or another officer violated a citizen’s

constitutional rights because of the Village’s alleged failure to train, retrain, or

discipline its officers. While the comments on the community petition may suggest

that Officer McKee has a history of misconduct, there is no information suggesting

that the commenters suffered constitutional violations sufficient to place the Village

on notice of a widespread pattern. In sum, Plaintiff does not offer the necessary

details for this Court to find he has alleged the Village was aware or constructively

aware of the failures that purportedly caused Plaintiff’s constitutional violations. He

therefore fails to state a Monell claim.

Turning to Plaintiff’s responsive argument, which is that Monell liability is

also premised on the decision of the Village Board to retain Officer McKee, the Court

notes that this allegation is seemingly missing from Count IV. Plaintiff only includes

in his Complaint that the Village “consciously disregarded and were [sic] deliberately

indifferent to the danger to the community posed by Officer McKee, yet allowed

Officer McKee to remain a Dwight Police Officer.” (Doc. 1 at 26). Even when reviewing

the Complaint in the light most favorable to Plaintiff, the Court cannot say that this

general (and mostly conclusory) statement is sufficient to allege a final-policymaker

theory of liability. Plaintiff would still need to include factual allegations that

demonstrate maintaining Officer McKee in his employment posed a “substantial risk”

of a constitutional violation, and the policymakers were deliberately indifferent to

those risks. Frake v. City of Chi., 210 F.3d 779, 782 (7th Cir. 2000). It is not clear that

Plaintiff has sufficiently pleaded that the known and obvious consequences of

retaining an employee who allegedly drove under the influence off-duty is that he

would violate a citizen’s constitutional rights while on duty. As is, the Complaint does

not plausibly state a Monell claim. If Plaintiff can cure the identified defects, he may

amend his claim against the Village. Thus, Defendants’ Motion to Dismiss is granted

as to Count IV, and this claim is dismissed without prejudice.

V. Counts V and VI

Counts V and VI are state-law claims of willful and wanton conduct and

battery brought against Officer McKee for his actions when arresting Plaintiff. (Doc.

1 at 27–29). Defendants generally argue that Plaintiff fails to state a claim for willful

and wanton conduct, and that both claims should be dismissed because under Section

2-202 of the Tort Immunity Act, Officer McKee is immune to liability for his actions.

(Doc. 6 at 12–13).

Willful and wanton conduct is considered “an aggravated form of negligence,”

rather than an independent tort, and requires the plaintiff to first allege that “(1)

defendant owed a duty to the plaintiff, (2) defendant breached the duty, and (3) the

breach was the proximate cause of the plaintiff’s injury.” Cochran v. Securitas Sec.

Services USA, Inc., 2016 IL App (4th) 150791, ¶ 32. The breach must be not merely

negligent but committed with “conscious disregard for the welfare of the plaintiff.”

Doe-2 v. McLean Cty. Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 514 (7th Cir. 2010).

Plaintiff, in his Complaint, has pleaded allegations that support Officer McKee owed

him a duty, as a police officer, to refrain from willful and wanton actions that caused

harm. (Doc. 1 at 27). To allege a battery, Plaintiff must plead “(1) an intentional act

on the part of the defendant, (2) resulting in offensive contact with the plaintiff's

person, and (3) lack of consent to the defendant’s conduct.” Obermeier v. Nw. Mem'l

Hosp., 2019 IL App (1st) 170553, ¶ 62. The Complaint alleges facts that demonstrate

Plaintiff did not consent to the harmful, offensive, and intentional contact by Officer

McKee. (Doc. 1 at 29).

The Local Governmental and Governmental Employees Tort Immunity Act

(“Tort Immunity Act”) shields public employees from liability for any “act or omission

in the execution or enforcement of any law” that does not constitute willful and

wanton conduct. 745 ILCS 10/2-202. Similar to the common law definition, the Act

defines willful and wanton conduct as “a course of action which shows an actual or

deliberate intention to cause harm or which, if not intentional, shows an utter

indifference to or conscious disregard for the safety of others or their property.” 10/1-

210.

Despite Defendants’ arguments to the contrary, the Complaint demonstrates

that Officer McKee acted with “utter indifference and conscious disregard for

[Plaintiff’s] health and safety” when he used excessively tightened Plaintiff’s

handcuffs, tackled and slammed him into the police vehicle and ground, and used

force “a reasonable person would believe to likely cause death or serious bodily

injury[.]” (Doc. 1 at 28). Additionally, Officer McKee’s actions accompanied his own

unprovoked statements describing how he would physically harm someone who held

a recording device up to his face like Plaintiff did. (Doc. 1 at 10, 23). At this stage,

these allegations are enough to state a claim that Officer McKee acted willfully and

wantonly, and to preclude immunity under Section 2-202 for both state-law claims.

See Tyehimba v. Cook Cnty., No. 22-CV-01139, 2024 WL 1142017, at *5 (N.D. Ill. Mar.

15, 2024) (allowing willful and wanton conduct claims to proceed at dismissal stage

because the plaintiff alleged that the officer “(1) . . . closed his hand in the cell door

chuckhold, (2) proceeded to painfully twist and turn Tyehimba’s fingers, (3) snapped

the bone as Tyehimba screamed ‘Please stop, you’re hurting me!’, (4) saw and heard

Tyehimba’s finger break, and then (5) proceeded to call him a racial slur”); Simmons

v. Parkinson, No. 119CV01231, 2022 WL 4225387, at *6 (C.D. Ill. Sept. 13, 2022)

(denying a motion to dismiss a battery claim and stating “it is plausible to infer that

[the officer], in her anger at Plaintiff . . . deliberately or with conscious disregard for

Plaintiff’s safety twisted the wrist she knew was injured and pulled down, forcing

him to fall to the ground”). Defendants’ Motion to Dismiss as to Counts V and VI is

denied.

VI. Count VII

Count VII seeks to hold the Village liable for Officer McKee’s actions under a

theory of respondeat superior, or vicarious liability. (Doc. 1 at 30). This type of liability

allows an employer to be held accountable for the torts of its employees when those

torts were committed “within the scope of the employment.” McQueen v. Green, 2022

IL 126666, ¶ 37 (citing Adames v. Sheahan, 233 Ill.2d 276, 298 (2009)). It extends to

the “negligent, willful, malicious or even criminal acts of its employees[.]” Adames,

233 Ill.2d 276, 298 (citation omitted). While respondeat superior is not itself a cause

of action, a plaintiff may plead it as a basis for holding a defendant responsible for

the actions of its agents. Winn v. City of Chi., No. 20 C 5246, 2022 WL 80272, at *7

(N.D. Ill. Jan. 6, 2022).

Defendants’ sole argument for dismissal of this claim is that Officer McKee is

not liable, and therefore the Village may not be held liable. (Doc. 6 at 14). The Court

has denied the Defendants’ Motion to dismiss the underlying state-law claims, and

Plaintiff sufficiently alleges that Officer McKee was acting within the scope of his

employment as a police officer when the alleged misconduct occurred. Therefore,

Plaintiff has demonstrated that the Village can be held vicariously liable, and

Defendants’ Motion to Dismiss is denied as to Count VII.

VII. Count VIII

Count VIII alleges a claim of indemnification against the Village. (Doc. 1 at

31). This type of claim triggers Section 9-102 of the Tort Immunity Act, which directs

municipalities to pay compensatory damages from any tort judgments and

settlements for which its employees, acting within the scope of their employment, are

liable. 745 ILCS 10/9-102. In moving to dismiss, Defendants once again argue that

Officer McKee is not liable, so, the Village has no duty to indemnify. (Doc. 6 at 14).

Plaintiff has sufficiently stated two claims against Officer McKee for his

conduct committed in the scope of his employment and is able to amend the other

three claims; thus, Plaintiff has plausibly alleged that the Village is liable under a

theory of indemnification at this stage. See King v. City of Chi., No. 22 C 4605, 2023

WL 4473017, at *7 (N.D. Ill. July 11, 2023) (denying a motion to dismiss an

indemnification claim against the municipality because the claims against the

officers remained). Therefore, Defendants’ Motion to Dismiss is denied as to Count

VIII.

CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (doc. 6) is

DENIED in part and GRANTED in part. Counts I, II, III, and IV are DISMISSED

WITHOUT PREJUDICE. Plaintiff is granted leave to amend his Complaint to cure

the defects identified herein within twenty-one (21) days of the date of this Order.

SO ORDERED.

Entered this 11th day of September 2024.

s/ Joe B. McDade

JOE BILLY McDADE

United States Senior District Judge