Allen v. Kevin Taylor

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARIO D. ALLEN, )

)

Plaintiff, ) Case No. 23-cv-16748

)

v. ) Hon. Steven C. Seeger

)

KEVIN TAYLOR, GABRIEL )

RODRIGUEZ, DANIEL FAIR, JEFFREY )

MORROW, UNKNOWN OFFICERS, )

and CITY OF CHICAGO, )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION AND ORDER

Mario Allen drove around town before the Fourth of July, and wound up in jail. Officers

from the Chicago Police Department pulled him over for failing to signal. When they

approached the car, they smelled marijuana in the vehicle.

A search soon followed, and things went from bad to worse for Allen. The officers

opened two backpacks and claimed to discover marijuana and a gun. The officers attributed the

backpacks to Allen, and placed him under arrest. The officers let his passengers go.

The state charged Allen with several felonies, including drug and gun offenses. Allen

spent a few days in custody. The charges were later dismissed. Months later, Allen was

indicted, but the state eventually dropped the case.

Allen responded by filing suit against a group of officers, plus the City of Chicago.

Defendants filed two motions to dismiss.

For the following reasons, the motions to dismiss are granted in part and denied in part.

Background

At the motion-to-dismiss stage, the Court must accept as true the well-pleaded allegations

of the complaint. See Lett v. City of Chicago, 946 F.3d 398, 399 (7th Cir. 2020). The Court

“offer[s] no opinion on the ultimate merits because further development of the record may cast

the facts in a light different from the complaint.” Savory v. Cannon, 947 F.3d 409, 412 (7th Cir.

2020).

On July 3, 2020, Mario Allen was out for an afternoon drive on Chicago’s South Side.

See Am. Cplt., at ¶ 16 (Dckt. No. 5). Allen was behind the wheel, rolling around town with three

passengers. Id. at ¶ 18.

Things soon came to a halt. Officer Kevin Taylor and other unidentified officers of the

Chicago Police Department stopped Allen for failing to signal. Id. at ¶ 16. When they

approached the car, the officers “claimed to smell cannabis emanating from inside [Allen]’s

vehicle.” Id. at ¶ 17.

A search of the car soon followed. The complaint isn’t entirely consistent about who,

exactly, searched the car. At one point, the complaint alleges that Officer Taylor “and other

officers” performed a search. Id. at ¶ 2. Later, the complaint says that Officer Taylor searched

the car. Id. at ¶ 19. So, Officer Taylor searched the car, and maybe other officers pitched in too.

Officer Taylor recovered two backpacks containing “various pieces of contraband.” Id. at

¶ 3; see also id. at ¶ 19.

The complaint does not come out and say what that “contraband” was. Id. But it comes

close. The complaint alleges that Allen was later charged with possession of cannabis and a gun.

Id. at ¶ 23. So a reasonable inference is that the officers found cannabis and a gun.

Officer Taylor attributed the ownership of the backpacks and their contents to Allen. Id.

at ¶ 20. But according to Allen, Officer Taylor had “no evidence” to support the notion that they

belonged to him. Id.

Officer Taylor arrested Allen, but let the passengers go. Id. at ¶ 21. Allen was charged

with “several felony offenses” by the Cook County State’s Attorney. Id. at ¶¶ 4–5. Allen

remained in custody until July 6, 2020, when he posted bond. Id. at ¶ 25. So he spent three days

in custody.

Seven months later, the charges were dismissed. Id. at ¶ 5. But not for long.

The State’s Attorney convened a grand jury and indicted Allen in October 2021. The

charges included “manufacture and delivery of cannabis and aggravated unlawful use of a

weapon.” Id. at ¶ 23. Officer Taylor testified before the grand jury, which “lead [sic] to the

indictment.” Id. at ¶ 24.

After the indictment, Allen spent another day in custody, before posting bond for the

second time. Id. at ¶ 25.

The case lasted about a year and a half. All charges against Allen were dropped a second

time on April 11, 2023. Id. at ¶ 26. Allen believes that the prosecution lacked evidence to charge

him. Id. at ¶¶ 20, 23.

Allen also believes that the reason for the dismissal had a lot to do with the background

of the officers at the traffic stop. Allen alleges that Officer Taylor is on the Cook County State’s

Attorney’s “Do Not Call List.” Id. at ¶ 29.

The “Do Not Call List” is a list of officers that prosecutors do not call to testify because

the officers “themselves have faced criminal charges or accusations of other serious

misconduct.” Id. at ¶ 31. If prosecutors called those officers to testify at trial, they would have

to disclose the officers’ misconduct (or allegations of misconduct) to defense counsel, which

might sink their case. Id. at ¶ 30 (citing Brady and Giglio).

Allen asserts “on information and belief” that Officer Taylor’s presence on the list is the

“primary reason” that the State’s Attorney dismissed the charges. Id. at ¶ 32.

According to the complaint, another Defendant, Officer Fair, is also on the “Do Not Call

List.” The complaint points to a report published by WGN News in March 2023. Id. at ¶ 33.

Officer Fair allegedly was charged with a felony for obstruction of a criminal investigation

and/or falsifying evidence. Id. at ¶¶ 35–36.

The complaint is murky when it comes to the role that Officer Fair allegedly played in

Allen’s arrest and prosecution. The complaint alleges that Defendants insisted on a prosecution

despite “Officer Fair’s lack of credibility.” Id. at ¶ 45. But the complaint leaves the reader

hanging. Officer Fair lacked credibility when he said what, when, and where? The complaint

doesn’t say what Officer Fair said, if anything.

The complaint includes statistics about other incidents of misconduct by CPD officers. It

alleges that “the City of Chicago has failed to adopt policies or procedures” to prevent civil-

rights violations. Id. at ¶¶ 37–42.

The complaint includes five counts.

Allen brings three federal claims under 42 U.S.C. § 1983. The first claim is a malicious-

prosecution claim under the Fourth Amendment against Taylor and the City of Chicago (Count

I). The second claim is an abuse-of-process claim against all Defendants (Count II). The third

claim is a Monell claim against the City of Chicago (Count III), alleging that other officers failed

to step in and prevent misconduct due to a “Code of Silence.”

Allen also brings two state-law claims. He alleges intentional infliction of emotional

distress by all Defendants (Count IV). And he brings an indemnification claim against the City

of Chicago (Count V).

Defendants moved to dismiss the complaint. See generally Defs.’ Mtn. to Dismiss (Dckt.

No. 21); Def. City of Chicago’s Mtn. to Dismiss (Dckt. No. 22).

Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not

its merits. See Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-

pleaded facts in the complaint and draws all reasonable inferences from those facts in the

plaintiff's favor. See AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).

To survive a Rule 12(b)(6) motion, the complaint must provide the defendant with fair

notice of the basis for the claim, and it must be facially plausible. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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.” See Iqbal, 556 U.S. at 678.

Analysis

The Court will begin with Allen’s federal claims against the officers, before turning to the

Monell claim against the City of Chicago. Then, the Court will turn to the state-law claims.

I. Malicious Prosecution (Count I)

The first claim is a federal claim of malicious prosecution against Officer Taylor and the

City of Chicago. See Am. Cplt., at ¶¶ 43–49 (Dckt. No. 5).

A plaintiff can bring a malicious-prosecution claim under at least one, and possibly two,

constitutional amendments. The Supreme Court has recognized a malicious-prosecution claim

under the Fourth Amendment. See Thompson v. Clark, 596 U.S. 36, 39 (2022). The Supreme

Court left open whether the Due Process Clause of the Fourteenth Amendment might give rise to

a malicious-prosecution claim, too. Id. at 43 n.2 (“It has been argued that the Due Process

Clause could be an appropriate analytical home for a malicious prosecution claim under § 1983.

. . . But we have no occasion to consider such an argument here.”) (citation omitted).

The Seventh Circuit has noted the uncertainty. “Whether the Fourteenth Amendment’s

procedural due process component ensures a right to be free from malicious prosecution is an

open question.” See Jones v. York, 34 F.4th 550, 564 n.8 (7th Cir. 2022) (citing Thompson, 596

U.S. at 43 n.2).

In any case, malicious prosecution under the Fourteenth Amendment is not at issue here.

Allen does not invoke the Fourteenth Amendment, and he doesn’t mention the Due Process

Clause. See generally Am. Cplt. (Dckt. No. 5). The right to due process never came up in the

complaint.

In contrast, Allen did cite the Fourth Amendment in the complaint, and he discussed

probable cause at length in his response brief. Id. at ¶ 7; Pl.’s Resp. in Opp. to Mtn. to Dismiss,

at 4–5 (Dckt. No. 28). So the Court will treat his claim as a malicious-prosecution claim under

the Fourth Amendment.

The Supreme Court recognizes “a Fourth Amendment claim under § 1983 for malicious

prosecution.” Evans v. Matson, 2024 WL 2206638, at *2 (7th Cir. 2024) (citing Thompson, 596

U.S. at 42, 44). The claim is sometimes called “unreasonable seizure pursuant to legal process.”

Id. (quoting Thompson, 596 U.S. at 42); see also Manuel v. City of Joliet, 580 U.S. 357, 369

(2017) (“Our holding [is] that the Fourth Amendment governs a claim for unlawful pretrial

detention even beyond the start of legal process.”).

A malicious-prosecution claim under section 1983 “incorporat[es] into federal law the

common-law tort of malicious prosecution as it existed in 1871, when § 1983 was enacted.”

Dorsey v. City of Chicago, 2025 WL 327425, at *8 (N.D. Ill. 2025) (citing Thompson, 596 U.S.

at 42–43) (dismissing malicious-prosecution claims by a different plaintiff against Officers

Taylor, Fair, and Morrow).

The Seventh Circuit recently elaborated on the requirements for a “Fourth Amendment

claim under § 1983 for malicious prosecution.” Evans, 2024 WL 2206638, at *2. The Seventh

Circuit discussed three elements, after taking another requirement – the existence of a seizure –

as a given.

Treating the existence of a seizure as a given makes sense. The sine qua non of a Fourth

Amendment claim is the existence of a search or seizure, because the Fourth Amendment applies

only to unreasonable searches and seizures. See Thompson, 596 U.S. at 43 n.2 (“Because this

[malicious-prosecution] claim is housed in the Fourth Amendment, the plaintiff also has to prove

that the malicious prosecution resulted in a seizure of the plaintiff.”) (citing Manuel, 580 U.S. at

365–66).

If a seizure took place, then the plaintiff must prove three elements. “Provided that the

conduct results in the plaintiff’s ‘seizure,’ the [malicious-prosecution] claim arises if a criminal

prosecution (1) was instituted without probable cause; (2) for a ‘malicious’ motive – a purpose

other than bringing the defendant to justice; and (3) ‘ended without a conviction.’” Evans, 2024

WL 2206638, at *2 (quoting Thompson, 596 U.S. at 44, 49).

Another recent Seventh Circuit case echoed the Evans three-part test. See Lee v. Harris,

127 F.4th 666, 676 (7th Cir. 2025). The Court of Appeals did not explicitly mention a

requirement of “seizure,” probably because it goes without saying. Id. at 675–76.

Here, Allen satisfies the requirement of a seizure. He was detained for three days after

his initial arrest in July 2020, and was detained for another day after his indictment in October

2021. See Am. Cplt., at ¶ 25 (Dckt. No. 5).

When it comes to the three-part test, two of the three elements aren’t at issue in the

motion to dismiss. The parties do not discuss the second element, the existence of malice.1 The

third element, the “favorable termination” requirement, isn’t up for grabs either. All charges

against Allen were dismissed. Id. at ¶ 6. That’s a favorable termination. See Thompson, 596

U.S. at 39 (“To demonstrate a favorable termination of a criminal prosecution for purposes of the

Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need only show that

his prosecution ended without a conviction.”).

The only issue is the first element, meaning the existence of probable cause to charge

Allen. To state a claim, Allen must allege a lack of probable cause.

Officer Taylor and the City argue that the complaint fails to allege a lack of probable

cause. They argue that, if anything, the complaint alleges that they did have probable cause.

Officer Taylor also argues that he is entitled to qualified immunity.

A. Probable Cause

The first question is whether the complaint alleges a lack of probable cause.

1 As an aside, the Supreme Court in Thompson reserved the question “whether a plaintiff bringing a

Fourth Amendment claim under § 1983 for malicious prosecution must establish malice (or some other

mens rea) in addition to the absence of probable cause.” See Thompson, 596 U.S. at 44. As the name

suggests, the common-law tort of malicious prosecution does require malice. Id. at 60 (Alito, J.,

dissenting).

“Probable cause means that there are ‘facts and circumstances within the officer’s

knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in

believing, in the circumstances shown, that the suspect has committed, is committing, or is about

to commit an offense.’” United States v. Slone, 636 F.3d 845, 849 (7th Cir. 2011) (quoting

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).

As applied to malicious prosecution, probable cause means “the existence of such facts

and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the

knowledge of the prosecutor, that the person charged was guilty of the crime for which he was

prosecuted.” Penn v. Chicago State Univ., 162 F. Supp. 2d 968, 976 (N.D. Ill. 2001), aff’d sub

nom. Penn v. Harris, 296 F.3d 573 (7th Cir. 2002).

Probable cause is “a common-sense inquiry requiring only a probability of criminal

activity . . . .” Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010). A district court must assess

probable cause “objectively,” after considering “the conclusions that the arresting officer

reasonably might have drawn from the information known to him.” Holmes v. Village of

Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007).

“Probable cause is a low bar.” Rainsberger v. Benner, 913 F.3d 640, 649 (7th Cir. 2019)

(Barrett, J.). Probable cause “requires only the ‘kind of fair probability on which reasonable and

prudent [people,] not legal technicians, act.’” See Kaley v. United States, 571 U.S. 320, 338

(2014) (Kagan, J.) (alterations in original) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).

Against that backdrop, the Court considers the allegations in Allen’s complaint. Reading

the complaint liberally and drawing all reasonable inferences in his favor, Allen adequately

alleges a lack of probable cause to charge him with possessing cannabis and a gun.

The gist of Allen’s complaint is that the officers pulled him over, smelled cannabis

coming from his car, searched the vehicle, and found two backpacks with unspecified “pieces of

contraband.” See Am. Cplt., at ¶¶ 3, 16–19 (Dckt. No. 5). Allen also alleges that Taylor

“attributed the ownership of the backpacks and their contents to [Allen] with no evidence to

support [Taylor’s] assertion.” Id. at ¶ 20. Taylor let the three passengers go, but arrested Allen.

Id. at ¶ 21.

A few things aren’t at issue. Allen doesn’t allege that the police lacked a basis to pull him

over. The legitimacy of the traffic stop isn’t disputed.

Allen also does not allege that the police lacked a basis to perform a search. If anything,

the complaint comes close to alleging the opposite. The complaint alleges that the police

“claimed to smell cannabis emanating from inside Plaintiff’s vehicle.” Id. at ¶ 17.

The police have probable cause to perform a search of a vehicle when they smell

marijuana. See United States v. Jackson, 103 F.4th 483, 488 (7th Cir. 2024) (“The smell of

marijuana alone justifies a Fourth Amendment search or seizure.”) (collecting cases); United

States v. Mosby, 541 F.3d 764, 768 (7th Cir. 2008) (“The smell [of marijuana] alone was enough

to give rise to probable cause to search the entire vehicle, including closed containers like the

garbage bag.”). A “plain sniff” rule applies – if the police smell marijuana, they can search the

car.

That principle applies even in states like Illinois, which has “legalized marijuana for adult

recreational use.” See Jackson, 103 F.4th at 488. “The possession of marijuana is illegal under

federal law.” Id. Illinois, after all, is in America, and federal law applies in America. Federal

law is the “supreme Law of the Land,” including the Land of Lincoln. See U.S. Const. art. VI,

cl. 2.

The ability to search a car flows naturally from the automobile exception. “Under the

automobile exception to the Fourth Amendment’s warrant requirement, officers may conduct ‘a

warrantless search of a vehicle . . . so long as there is probable cause to believe it contains

contraband or evidence of illegal activity.’” See United States v. Hays, 90 F.4th 904, 907 (7th

Cir. 2024) (citation omitted). “It is well settled that officers can search a car without a warrant

where there is probable cause to believe that illegal substances are present.” Id.; see also

Wyoming v. Houghton, 526 U.S. 295, 300 (1999) (confirming that officers can conduct a

warrantless search of a vehicle when they “had probable cause to believe there were illegal drugs

in the car”).

Allen does not challenge the search of the backpacks, either. “If probable cause justifies

the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its

contents that may conceal the object of the search.” See United States v. Ross, 456 U.S. 798, 825

(1982).

It doesn’t matter who owned the backpacks. The police could search the backpacks, even

if they belonged to one of the passengers. The ability to perform a search applies “broadly to all

containers within a car, without qualification as to ownership.” See Houghton, 526 U.S. at 301

(emphasis in original). That is, “police officers with probable cause to search a car may inspect

passengers’ belongings found in the car that are capable of concealing the object of the search.”

Id. at 307; see also Hays, 90 F.4th at 907 (“[O]fficers may search all containers within a car

‘where they have probable cause to believe contraband or evidence is contained.’ . . . This is true

‘without qualification as to ownership’ of the containers searched.”) (citations omitted).

Once the police searched the backpacks for contraband, the discovery of contraband is

fair game – even if the police found a different type of contraband than what they were looking

for. See Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir. 1992) (“The ‘plain view’ doctrine . . .

allows officers executing a valid search warrant to seize contraband or incriminating evidence

that they see in the course of their search even though the items in question were not named in

the warrant.”).

So it doesn’t matter if the police found a gun when they were looking for a marijuana. If

a search is lawful, then anything found during that search is fair game. See United States v.

Cherry, 920 F.3d 1126, 1137–38 (7th Cir. 2019) (“Under this plain view doctrine, a warrantless

seizure is justified if first, the law enforcement officer did not violate the Fourth Amendment in

arriving at the place from which evidence could be plainly viewed; second, the item was in plain

view; and third, its incriminating character was immediately apparent.”); see also Coolidge v.

New Hampshire, 403 U.S. 443, 465 (1971).

The only issue is whether the officers had a basis to attribute the contraband in the

backpacks to Allen. The amended complaint alleges that Officer Taylor “attributed the

ownership of the backpacks and their contents to Plaintiff with no evidence to support his

assertion.” See Am. Cplt., at ¶ 20 (Dckt. No. 5).

That allegation might not age well. In fact, that allegation sits uncomfortably with the

allegations of the original complaint.

The original complaint gave a reason why the officers thought that the backpacks

belonged to Allen. The original complaint alleged that the two backpacks contained “various

items of contraband [and] other items including a U.S. Bank receipt and insurance form with

Plaintiff’s name on them.” See Cplt., at ¶ 19 (Dckt. No. 1). “As a result of the bank receipt and

insurance form, Officer Kevin Taylor attributed the ownership of the backpacks to Plaintiff.” Id.

at ¶ 20.

Those details went mysteriously missing in the amended complaint. The amended

complaint doesn’t say anything about any documents in the backpacks.

So, the original complaint alleged that Officer Taylor attributed the backpacks to Allen

because they included a bank receipt and an insurance form “with Plaintiff’s name on them.” Id.

at ¶ 19 (emphasis added). But the amended complaint deleted that allegation, and then alleged

the opposite. The amended complaint alleged that Officer Taylor had “no evidence” to attribute

the backpacks to Allen. See Am. Cplt., at ¶ 20 (Dckt. No. 5).

It’s hard to know what to make of that change.

Probable cause is a low bar. If the officers opened the backpacks and found documents

with Allen’s name on them, that’s more than enough to support an inference that the backpacks

belonged to Allen. The officers would have had probable cause to believe that Allen possessed

the backpacks, and anything inside them.

The Federal Rules require a good-faith basis for alleging a fact in a complaint. See Fed.

R. Civ. P. 11(b). And by implication, the Federal Rules should require a good-faith basis for

removing a fact from a complaint. See Lance v. Betty Shabazz Int’l Charter Sch., 2014 WL

340092, at *1 (N.D. Ill. 2014) (Dow, J.) (expressing skepticism when a plaintiff “delete[d] . . .

bad facts that contributed to [the] [p]laintiff pleading himself out of court the first time”).

Removing a bad-but-true fact from a complaint simply to avoid a motion to dismiss is not

consistent with the truth-seeking function of litigation.

So the Court orders the following. One week after the date of this order, Allen’s counsel

must file a statement and must explain the removal of the allegation about the contents of the

backpacks, meaning the sentence in the original complaint. Allen’s counsel also must address

whether the police found documents with Allen’s name on them inside the backpacks. Maybe

the original complaint was mistaken, and the police didn’t find any such documents in the

backpacks. But if that’s the case, then counsel must say so (and one wonders how such an

allegation could have made its way into the original complaint by mistake).

In the meantime, the amended complaint is what matters. An amended complaint

supersedes an earlier complaint. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632,

638 (7th Cir. 2004) (“It is axiomatic that an amended complaint supersedes an original complaint

and renders the original complaint void.”); Lance, 2014 WL 340092, at *1 (“The Court’s

expectation was . . . not that Plaintiff would change (or delete) the bad facts that contributed to

Plaintiff pleading himself out of court the first time. Nevertheless, the Court may consider only

the first amended complaint.”). The Seventh Circuit has frowned on looking at an earlier

complaint when addressing a motion to dismiss a later complaint. See Kelley v. Crosfield

Catalysts, 135 F.3d 1202, 1204 (7th Cir. 1998) (“[F]acts not incorporated into the amended

pleading . . . cannot be considered by the court on a motion to dismiss the amended complaint. A

court cannot resuscitate these facts when assessing whether the amended complaint states a

viable claim.”).

The operative complaint alleges that Officer Taylor had no reason to believe that the

backpacks belonged to Allen. For now, that allegation is enough to survive a motion to dismiss.

Whether the police had probable cause to attribute the backpacks to Allen is a fact-specific

enterprise, and the amended complaint doesn’t give much to go on.

The Supreme Court encountered a similar situation in Maryland v. Pringle, 540 U.S. 366

(2003). There, a police officer pulled over a car with three occupants at 3:16 a.m., and

discovered $763 in rolled-up cash and five baggies of cocaine. The cocaine was “behind the

back-seat armrest and accessible to all three men.” Id. at 368. But all of them denied ownership.

The Supreme Court found probable cause to arrest the driver. “We think it an entirely

reasonable inference from these facts that any or all three of the occupants had knowledge of,

and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude

that there was probable cause to believe Pringle committed the crime of possession of cocaine,

either solely or jointly.” Id. at 372; see also id. at 373 (“[A] car passenger . . . will often be

engaged in a common enterprise with the driver, and have the same interest in concealing the

fruits or the evidence of their wrongdoing.”) (quoting Houghton, 526 U.S. at 304–05); see also

Young v. City of Chicago, 987 F.3d 641, 644 (7th Cir. 2021) (finding probable cause when

officers “found a gun right next to [the suspect] in the car he was driving,” even though the

driver said that the gun belonged to the passenger) (emphasis added).

Maybe the same conclusion will apply here, but it’s hard to say without knowing the

facts. The complaint does not allege where the backpacks were located. The facts could reveal

other reasons to think that the backpacks belonged to Allen, or other reasons to conclude that

they belonged to someone else.

For example, imagine if the bag in question was a purse that a woman was wearing

around her neck in the backseat. See, e.g., United States v. Eymann, 962 F.3d 273, 287 (7th Cir.

2020) (finding a lack of probable cause to arrest a driver on marijuana charges when another

passenger readily admitted to ownership of the marijuana in the car). In that situation, there

might be good reason to think that the bag didn’t belong to Allen. It’s hard to say in the abstract.

For now, the claim survives. It might not be long for this world, but for now, it lives to

see another day.

B. Qualified Immunity

Taylor and the City of Chicago also move to dismiss the malicious-prosecution claim

based on qualified immunity.

Qualified immunity protects public officials “from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

overcome qualified immunity, a plaintiff must show “(1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818).

Qualified immunity and a motion to dismiss sometimes make an odd couple. See

generally Costa v. Ramaiah, 689 F. Supp. 3d 553, 577 (N.D. Ill. 2023) (discussing the tension

that arises when a defendant moves to dismiss based on qualified immunity).

After all, qualified immunity is an affirmative defense. See Smith v. Finkley, 10 F.4th

725, 737 (7th Cir. 2022). And “moving for judgment on the pleadings under Rule 12(c) is the

more appropriate way to address an affirmative defense.” See Calchi v. TopCo Assocs., LLC,

2024 WL 4346420, at *5 n.2 (N.D. Ill. 2024) (quoting Benson v. Fannie May Confections

Brands, Inc., 944 F.3d 639, 645 (7th Cir. 2019)). A motion to dismiss under Rule 12(b)(6) is not

the preferred way to raise qualified immunity.

But that’s not the only reason why a motion to dismiss and qualified immunity are an odd

fit. Qualified immunity is a fact-intensive analysis. And “[b]ecause a qualified immunity

defense so closely depends on the facts of the case, a complaint is generally not dismissed under

Rule 12(b)(6) on qualified immunity grounds.” Reed v. Palmer, 906 F.3d 540, 548 (7th Cir.

2018). The fact-gathering comes later, during discovery.

At the pleading stage, a plaintiff “need not include every detail or fact related to the basis

of her allegations.” Id. Instead, a plaintiff needs to plead “only enough facts to state a claim to

relief that is plausible on its face.” See Twombly, 550 U.S. at 570.

“That plausibility standard creates tension at this stage of litigation between developing

the requisite facts for a well-informed qualified immunity determination and preserving a

government official’s right to avoid the burdens of pretrial matters, including discovery.” See

Reed, 906 F.3d at 548.

So qualified immunity is “sometimes a factual question better reserved for summary

judgment.” See Ewell v. Toney, 853 F.3d 911, 920 (7th Cir. 2017) (emphasis added); see also

Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J., concurring in part

and concurring in the judgment) (“Rule 12(b)(6) is a mismatch for immunity and almost always

a bad ground of dismissal.”); Reed, 906 F.3d at 549 (collecting cases).

Another layer of tension comes from the nature of a plaintiff’s burden. On the one hand,

once a defendant raises qualified immunity, “the plaintiff carries the burden of showing that

defendants are not immune.” See Sebesta v. Davis, 878 F.3d 226, 233 (7th Cir. 2017) (citing

Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017)).

On the other hand, a complaint doesn’t need to “anticipate and overcome” a qualified-

immunity defense at the motion-to-dismiss stage. See Roldan v. Stroud, 52 F.4th 335, 339 (7th

Cir. 2022) (quoting Jacobs, 215 F.3d at 765 n.3). A plaintiff simply needs to “include enough

facts to present ‘a story that holds together.’” Id. (quoting Reed, 906 F.3d at 548).

So a plaintiff has the burden of overcoming an assertion of qualified immunity. But a

complaint doesn’t have to allege the absence of qualified immunity, either.

In the end, it is sometimes possible to succeed on a qualified-immunity defense at the

motion-to-dismiss stage. “Simply put, a plaintiff can plead himself out of court on qualified

immunity grounds.” See Sabo v. Erickson, 128 F.4th 836, 842 (7th Cir. 2025) (en banc)

(collecting cases). Everyone can trip over their own two feet. And a complaint can always show

itself the door.

Dismissal is appropriate if the complaint itself shows the existence of qualified immunity.

See Hanson v. LeVan, 967 F.3d 584, 591 (7th Cir. 2020) (recognizing that a district court can

dismiss a complaint based on qualified immunity “if the allegations in the complaint fail to state

a claim of a clearly established right having been violated”).

Putting it all together, a complaint will overcome a motion to dismiss based on qualified

immunity when “(1) the plaintiff[] adequately alleged facts that, if true, would constitute a

violation of a statutory or constitutional right, and (2) the right was ‘clearly established’ at the

time of the alleged violation, such that a reasonable public official would have known his

conduct was unlawful.” Id. at 592.

The first requirement is a violation of a federal right. Again, Allen has adequately alleged

a malicious-prosecution claim under the Fourth Amendment.

The second requirement is a violation of a “clearly established right.” See Pryor v.

Corrigan, 124 F.4th 475, 488 (7th Cir. 2024); see also Archer, 870 F.3d at 613. To make that

showing, the plaintiff must “show[] that there is a case ‘on point or closely analogous’ that

allows [the Court] to conclude that a reasonable government employee would or should know

that her conduct is unlawful.” See Sebesta, 878 F.3d at 234 (quoting Boyd v. Owen, 481 F.3d

520, 527 (7th Cir. 2007)).

The Supreme Court has emphasized that the “‘clearly established law’ should not be

defined ‘at a high level of generality.’” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Al-Kidd,

563 U.S. at 742). Instead, the formulation of the clearly established right “must be

‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

Even at the motion-to-dismiss stage, “the crucial question” is “whether the official acted

reasonably in the particular circumstances that he or she faced.” See Sabo, 128 F.4th at 844

(emphasis added) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).

However, at the motion-to-dismiss stage, “[a]sserting a qualified immunity defense . . .

subjects the defendant to a more challenging standard of review than would apply on summary

judgment.” See Reed, 906 F.3d at 549 (citation omitted). That’s because “it is the defendant’s

conduct as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.’” Id.

(emphasis in original) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)).

As a result, courts focus less on whether the plaintiff has pleaded a right with factual

precision. Courts focus more on whether the plaintiff has pleaded facts that present “a story that

holds together.” See Roldan, 52 F.4th at 339 (quoting Reed, 906 F.3d at 548). That is, courts

look for a story that plausibly suggests the violation of a clearly established right.

In other words, even though the clearly established right needs to be specific, the

complaint does not need heightened specificity. After all, Rule 8, not Rule 9, governs

complaints, even when a defendant asserts qualified immunity. And Rule 8 requires only a

“short and plain statement of the claim.” See Fed. R. Civ. P. 8(a)(2).

The parties can add details later, including pinning down the exact parameters of the

clearly established right. See Roldan, 52 F.4th at 340 (“At the dismissal stage, however, we

cannot draw an inference against [the plaintiff] or somehow hold him to a pleading standard

beyond Rule 8 just because the defendants invoked qualified immunity as a defense.”). “If the

question turns on the facts, the issue of qualified immunity is best left for a later day.” Costa,

689 F. Supp. 3d at 577.

At the motion-to-dismiss stage, courts in this district have not required much specificity

about the clearly established right. For example, another court in this district held that “it has

been clearly established that it was unconstitutional for the [defendants] to continue to detain [the

plaintiff] without probable cause and based on a falsified arrest report.” Alcorn v. City of

Chicago, 2018 WL 3614010, at *9 (N.D. Ill. 2018) (Kendall, J.); see also Lankamer v. Lalley,

2024 WL 4119152, at *6 (N.D. Ill. 2024) (holding that the complaint alleged a clearly

established right by “alleging that [the decedent] had a Fourth Amendment right to medical

attention in response to a serious medical condition”); Washington v. Bd. of Educ., 2021 WL

5881682, at *10 (N.D. Ill. 2021) (denying a motion to dismiss when the complaint “sufficiently

allege[d] that [the defendants] violated [the] clearly established right to be free from

discrimination based on his gender”); Gupta v. Owens, 2014 WL 1031471, at *3 (N.D. Ill. 2014)

(denying a motion to dismiss because the plaintiff “had a clearly established right to be free from

arrest without probable cause” and “a reasonable person in [the defendant]’s position would have

known that probable cause was required to make an arrest”).

After all, “an immunity defense usually depends on the facts of the case,” so the plaintiffs

in each case had met their burden to allege a clearly established right at the pleading stage. See

Doe v. Village of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015) (quoting Alvarado, 267

F.3d at 651).

True, the existence of a clearly established right is a legal question, not a factual question.

But pinning down the legal question depends on the facts. After all, a district court might need to

know the facts – the actual conduct alleged to be unlawful – to know whether a case is “on point

or closely analogous.” See Sebesta, 878 F.3d at 234.

Allen satisfies this standard. He alleges that the officers violated his “right not to be

maliciously prosecuted.” See Pl.’s Resp., at 5 (Dckt. No. 28). In his view, Manuel recognized

the existence of that right, well before Allen got pulled over. Id.

The Supreme Court did not explicitly formulate the right in Manuel as a right to be free

from malicious prosecution. Id. But the Supreme Court did state that the “Fourth Amendment

prohibits government officials from detaining a person in the absence of probable cause.” See

Manuel, 580 U.S. at 367–68. So the plaintiff in Manuel “stated a Fourth Amendment claim

when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-

process) pretrial detention.” Id.

The officers attempt to reframe the right by posing a narrow question: “does a police

officer have probable cause to believe a driver of a vehicle actually or constructively possesses

contraband that is recovered from two backpacks inside his vehicle?” See Defs.’ Mtn. to

Dismiss, at 10 (Dckt. No. 21). As the officers see it, the clear answer is yes, so they violated no

clearly established right. Id.

But that question speaks to whether there was a violation at all, not whether the right was

clearly established. That is, that question is about the first prong of the qualified-immunity

analysis (i.e., the existence of a violation), not the second prong (i.e., the existence of a clearly

established right).

“Simply put, whether [Officer-Defendants] had probable cause to [detain Allen] requires

more discovery, as does the question of their entitlement to qualified immunity.” Green, 2024

WL 1363543, at *5 (N.D. Ill. 2024); see also id. at *6 (“Simply put, there are too many factual

questions regarding probable cause to grant qualified immunity on a motion to dismiss.”).

At this stage, Allen has adequately alleged his malicious-prosecution claim. For now, the

officers cannot avail themselves of qualified immunity because Allen has identified a clearly

established right to be free from unlawful custody as part of a prosecution.

At this point, a reader could be forgiven for thinking that the discussion of qualified

immunity contains a bunch of legalese. So, the Court will sum it up in plain English. It’s too

early to say what happened during the traffic stop. The facts are up in the air. So it’s too early to

say whether the officers violated a clearly established right.

In sum, the malicious-prosecution claim against Officer Taylor (Count I) survives.

Allen also brings a malicious-prosecution claim against the City of Chicago. See Am.

Cplt., at ¶¶ 43–49 (Dckt. No. 5). But a municipality is not a proper defendant under section 1983

except through a Monell claim. See Bradley v. Village of University Park, 929 F.3d 875, 884 (7th

Cir. 2019) (“Local governments are liable for damages under § 1983 only for violations of

federal rights that occur ‘pursuant to official municipal policy of some nature.’”) (quoting Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). So the Court dismisses the malicious-

prosecution claim (Count I) against the City of Chicago.

II. Abuse of Process (Count II)

Allen also brings an abuse-of-process claim under section 1983. See Am. Cplt., at ¶¶ 50–

54 (Dckt. No. 5).

The parties disagree about whether a plaintiff can bring an abuse-of-process claim under

section 1983. Defendants contend that Seventh Circuit case law does not permit a federal abuse-

of-process claim when there is an adequate state remedy. See Defs.’ Mtn. to Dismiss, at 11

(Dckt. No. 21); see also Adams v. Rotkvich, 325 F. App’x 450, 453 (7th Cir. 2009) (“[A]buse of

process is not a free-standing constitutional tort if state law provides a remedy for abuse of

process. Illinois provides such a remedy. Accordingly, [a] claim for abuse of process [is] not

cognizable under § 1983.”). On the other side, Allen believes that Adams is no longer good law.

See Pl.’s Resp., at 6 (Dckt. No. 28).

This Court does not need to get into whether Adams remains good law. The complaint

does not state a claim, even if a federal abuse-of-process claim is theoretically viable.

An abuse-of-process claim under section 1983 has the same elements as an abuse-of-

process claim under state law. See Hart v. Mannina, 798 F.3d 578, 593 (7th Cir. 2015)

(“Assuming abuse of process is cognizable under § 1983, we would look to state law to

determine the elements of the claim.”). The “only elements necessary to plead a cause of action

for abuse of process under Illinois law are (1) the existence of an ulterior purpose or motive and

(2) some act in the use of legal process not proper in the regular prosecution of the proceedings.”

Pace v. Timmermann’s Ranch & Saddle Shop Inc., 795 F.3d 748, 757 (7th Cir. 2015).

Allen’s complaint does not allege any facts that could give rise to a plausible claim. The

complaint does not allege anything about an ulterior purpose or motive. The complaint does not

allege any improper act, either.

At best, the complaint alleges that Officer Taylor attributed the backpacks to Allen,

without a factual basis for doing so. That’s not enough to state a claim for abuse of process.

Allen also brought the abuse-of-process claim against Officers Fair, Morrow, and

Rodriguez. The complaint alleges even less about them than it does about Officer Taylor. The

complaint does not come close to alleging any facts that could give rise to an abuse-of-process

claim against them. The complaint does not allege a violation, let alone that they had personal

involvement in any violation. See Gonzalez v. McHenry Cnty., 40 F.4th 824, 828 (7th Cir. 2022).

The abuse-of-process claim (Count II) is dismissed.

III. Section 1983 – Monell Claim (Count III)

The next claim is a Monell claim against the City of Chicago.

A Monell claim allows a plaintiff to hold a municipality liable under section 1983 for

“conduct that is properly attributable to the municipality itself.” First Midwest Bank v. City of

Chicago, 988 F.3d 978, 986 (7th Cir. 2021) (citing Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397,

403–04 (1997)).

To bring a Monell claim, a plaintiff must allege the existence of “(1) an express policy

that causes a constitutional deprivation when enforced; (2) a widespread practice that is so

permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the

constitutional injury was caused by a person with final policymaking authority.” Id. (quoting

Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019)).

Allen had three different paths to choose from. But he didn’t pick a lane.

The complaint alleges almost no facts about the Monell claim. The complaint alleges that

“four officers” in the Fifth District “terrorized the southside of Chicago.” See Am. Cplt., at ¶ 56

(Dckt. No. 5). And then, the complaint alleges that no officers stepped in to prevent the

“egregious behavior” because of a “Code of Silence.” Id. at ¶ 57.

That’s it. And that’s not enough. A complaint does not state a Monell claim by using the

catch-phrase “Code of Silence.” A claim must rest on facts, not buzzwords. See Slabon v.

Sanchez, 2020 WL 5763760, at *1 (N.D. Ill. 2020) (“The Court does not need to accept

conclusions, boilerplate, buzzwords, or legalese. Mouthing the magic words adds air, but no

weight.”).

Allen does not muster a defense of the Monell claim in his response brief. In fact, Allen

did not address the Monell claim at all. See Pl.’s Resp. (Dckt. No. 28). So any argument is

waived.

“A litigant ‘waives an argument by failing to make it before the district court.’ This rule

applies when ‘a party fails to develop arguments related to a discrete issue’ and also when he

‘effectively abandons’ the issue ‘by not responding to alleged deficiencies in a motion to

dismiss.’” Braun v. Village of Palatine, 56 F.4th 542, 553 (7th Cir. 2022) (quoting Alioto v. Town

of Lisbon, 651 F.3d 715, 720–21 (7th Cir. 2011)), reh’g denied, 2023 WL 2188741 (7th Cir.

2023).

The waiver didn’t stop with the Monell claim. In fact, Allen didn’t file any response to

the City’s motion to dismiss. That is, Allen responded to the motion to dismiss filed by the

Officer-Defendants, but did not file a response to the City’s motion to dismiss. See generally

Pl.’s Resp. (Dckt. No. 28); see also Def. City of Chicago’s Reply, at 2–3 (Dckt. No. 29).

When it comes to the City’s motion to dismiss, Allen had nothing to say. So everything is

waived. See Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005).

The Monell claim (Count III) is dismissed.

IV. Intentional Infliction of Emotional Distress (Count IV)

The next claim is intentional infliction of emotional distress. Allen runs into similar

problems.

A claim of intentional infliction of emotional distress requires “(1) extreme and

outrageous conduct; (2) intent or knowledge by the actor that there is at least a high probability

that his or her conduct would inflict severe emotional distress and reckless disregard of that

probability; and (3) severe and emotional distress.” Adams v. Sussman & Hertzberg, Ltd., 684

N.E.2d 935, 941 (Ill. App. Ct. 1997). The conduct must be so extreme, so outrageous, and “so

severe that no reasonable man could be expected to endure it.” McGrath v. Fahey, 533 N.E.2d

806, 809 (Ill. 1988).

Here, the complaint marches through the elements, but offers nothing else. The

complaint alleges that the “acts and conduct of Defendant Officer Kevin Taylor and his fellow

officers were extreme and outrageous.” See Am. Cplt., at ¶ 60 (Dckt. No. 5). That’s a

conclusion, and conclusory allegations carry no weight. See Bronson v. Ann & Robert H. Lurie

Children’s Hosp. of Chicago, 69 F.4th 437, 448 (7th Cir. 2023) (“[L]egal conclusions and

conclusory allegations merely reciting the elements of the claim are not entitled to [the]

presumption of truth.”).

The complaint does not allege any conduct by Officer Taylor, except searching the

vehicle and attributing the contents of the backpacks to Allen. Maybe Officer Taylor made a

mistake in doing so. But a mistake is not enough to give rise to a claim for an intentional tort.

The complaint also alleges that Officer Taylor testified before the grand jury, and that his

testimony led to the indictment. See Am. Cplt., at ¶ 24 (Dckt. No. 5). Maybe so. But that

allegation isn’t enough to give rise to a claim, either.

If there are any facts that could support a claim, the complaint doesn’t allege them.

In his brief, Allen tries to come to the rescue of the claim. But he doesn’t save it.

By the look of things, Allen’s brief attempts to expand the allegations of the complaint.

Allen argues that a “police officer giving false testimony at a grand jury, and the conduct of

defendant Fine [sic] in allegedly planting guns on citizens, is [sic] precisely the kind of extreme

and outrageous conduct that the law prohibits . . . .” See Pl.’s Resp., at 6 (Dckt. No. 28).

That argument comes out of nowhere. The complaint does not allege that any officer

gave false testimony to the grand jury, let alone reveal what it was.

The complaint also does not allege anything about anyone planting a gun in Allen’s car,

including the backpacks. In fact, the complaint does not even squarely allege that the officers

found a gun (except by inference, based on the criminal charge of gun possession). The

complaint refers obliquely to “various pieces of contraband,” and then leaves it to the reader to

connect the dots. See Am. Cplt., at ¶ 3 (Dckt. No. 5).

True, Allen alleges that Officer Fair “was under investigation for destroying evidence and

planting guns on unsuspecting citizens in order to charge them with false allegations far before

the arrest of Plaintiff in this case.” Id. at ¶ 36. But the complaint is not about “unsuspecting

citizens” generally. The complaint is about Allen, and the complaint does not allege that Officer

Fair planted a gun in Allen’s car.

The claim of intentional infliction of emotional distress (Count IV) is dismissed.

V. Indemnification (Count V)

The last claim is an indemnification claim against only the City of Chicago. See Am.

Cplt., at ¶¶ 67–69 (Dckt. No. 5).

An indemnification claim presupposes that some other claim will survive. That is, an

indemnification claim assumes that there is something to indemnify a party for.

The City moved to dismiss the indemnification claim if the Officer-Defendants ran the

table on their motion to dismiss. See Def. City of Chicago’s Mtn. to Dismiss, at 12 (Dckt. No.

22) (“Should the Court find the Defendant Officers’ Motion is well-taken across the board, the

City respectfully requests the indemnification claim against it be dismissed as well.”) (emphasis

added).

As explained above, the malicious-prosecution claim against Officer Taylor survives. So,

to that limited extent, the indemnification claim survives too. The indemnification claim is

otherwise dismissed.

Conclusion

For the foregoing reasons, the Officer-Defendants’ motion to dismiss (Dckt. No. 21) is

hereby granted in part and denied in part, and the City of Chicago’s motion to dismiss (Dckt. No.

22) is hereby granted in part and denied in part. The malicious-prosecution claim against Officer

Taylor (Count I) survives, and so does the indemnification claim against the City (Count V) to

that limited extent. The amended complaint is otherwise dismissed.

Date: March 21, 2025 1 Gy

Steven C. Seeger

United States District Judge

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