Ali v. Vill. of Tinley Park

• Decision Date: 07 January 2015
• Docket Number: Case No. 14 C 4053.
• Citation: 79 F.Supp.3d 772
• Parties: Omar ALI, Plaintiff, v. VILLAGE OF TINLEY PARK, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

79 F.Supp.3d 772

Omar ALI, Plaintiff

v.VILLAGE OF TINLEY PARK, et al., Defendants.

Case No. 14 C 4053.

United States District Court, N.D. Illinois, Eastern Division.

Signed Jan. 7, 2015.

Richard J. Dvorak, Law Offices of Richard Dvorak, Oak Brook Terrace, IL, Iveliz Maria Orellano, Dvorak Law Offices, LLC, Theresa H. Kleinhaus, Chicago, IL, for Plaintiff.

Michael Russell Hartigan, Patrick Halpin O'Connor, Hartigan & O'Connor P.C., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

Omar Ali (“Ali”) has brought this action against the Village of Tinley Park (“Village”) and its firefighters Kevyn Holdefer (“Holdefer”), John Duffy (“Duffy”) and Steve Griffin (“Griffin”), charging the firefighters with violations of 42 U.S.C. §§ 1983 and 1981¹ and seeking indemnification from Village for any recovery on those claims. Ali also brings a number of state law claims under the auspices of 28 U.S.C. § 1367 (“Section 1367 ”). All defendants move to dismiss the federal claims pursuant to Fed.R.Civ.P. (“Rule”) 12(b)(6) and the state law claims under Rule 12(b)(1). For the reasons stated in this opinion, this Court grants the motion to dismiss the Section 1981 claims with prejudice, but it denies the remainder of the motion.

Standard of Review

Under Rule 12(b)(6) a party may move for dismissal of a complaint for the “failure to state a claim upon which relief can be granted.” Familiar Rule 12(b)(6) principles require the district court to accept as true all of plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff ( Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir.2013) ), while “legal conclusions or conclusory allegations that merely recite a claim's elements” are not entitled to such a presumption of truth (Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012) ). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction are evaluated under the same standard (Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir.2012) ).

In recent years the Supreme Court has made an important change in the evaluation of Rule 12(b)(6) motions via what this Court regularly refers to as “the Twombly–Iqbal canon” (a usage drawn from (1) Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as more finely tuned in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), and (2) Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). That canon has introduced a notion of “plausibility” into the analysis, and in that respect our Court of Appeals has “interpreted Twombly and Iqbal to require the plaintiff to provid[e] some specific facts to support the legal claims asserted in the complaint” (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.2011) (internal quotation marks omitted but brackets in original)). As McCauley, id. went on to reconfirm, “the plaintiff must give enough details about the subject-matter of the case to present a story that holds together.”

Statement of Facts

Ali is African American and of Muslim faith (FAC ¶ 4).² One afternoon in May he was walking home along the sidewalk directly across the street from the Tinley Park Fire Department wearing a “clearly visible turbin [sic] on his head” (id. ¶ 6). At that time firefighters Holdefer, Duffy and Griffin were “on duty” and “operating the equipment of the Fire Department as part of their routine duties” (id. ¶ 8). “Suddenly” Holdefer sprayed Ali with a “powerful” fire hose (id. ¶ 9), an act that Ali claims was purposeful and on account of his race or Muslim faith or both (id. ¶ 11). At the same time the other two firefighters—Duffy and Griffin—“observed Firefighter Holdefer's actions, had a reasonable opportunity to intervene, and did nothing to stop him” (id. ¶ 10). Based on that incident, Ali asserts (1) several claimed violations of state law (which this opinion does not enumerate), (2) a claimed denial of equal protection in violation of Section 1981 and (3) several theories advanced under Section 1983 : the denial of equal protection, the use of excessive force and the failure to intervene.

Ali's Section 1981 Claims

Campbell v. Forest Pres. Dist. of Cook County, Ill., 752 F.3d 665, 671 (7th Cir.2014) has recently held that Section 1981 does not create a private right of action against state actors—instead Section 1983 provides the exclusive remedy for such claims. Indeed, Ali's Mem. 1 n. 1 has expressly abandoned reliance on that section. Accordingly this Court dismisses the Section 1981 claims with prejudice.

Ali's Section 1983 Claims

To state a claim for relief under Section 1983, Ali must allege (1) misconduct that “was committed by a person acting under the color of state law” and (2) that as a result he was deprived of a right “secured by the Constitution and the laws of the United States” (West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ). Defendants argue that Ali's Section 1983 claims fail on two grounds: first, that the firefighters were not acting “under the color of state law,” and second, that even if they were, they did not violate any of Ali's federally protected rights. For the reasons stated hereafter, the Section 1983 claims survive.

Action Under Color of State Law

Defendants contend that Holdefer was not acting under the color of state law because spraying a fire hose at a single individual outside of the context of an emergency is not a part of a firefighter's regular duties, and one cannot misuse power that one does not possess (see Gibson v. City of Chicago, 910 F.2d 1510, 1518 (7th Cir.1990) ). That argument creates something of a slippery slope—after all, Section 1983 was designed to curtail abuses of power, and by definition any abuse of power falls outside of the scope of one's authority.

Action under the color of state law is defined as the “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law” (United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) ). On that score the truly seminal opinion in Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) taught:

It is clear that under “color” of law means under “pretense” of law.

Hence officers may act under the color of state law even if they are not obeying it (see id. ). Of course Section 1983 does not cover actions by officers entirely “in the ambit of their personal pursuits” (id. ), nor does the “mere assertion that one is a state officer” lead to the inexorable conclusion “that one acts under color of state law” (Wilson v. Price, 624 F.3d 389, 392 (7th Cir.2010) ). As stated above, the key is that the office is acting with the pretense of legal authority to perpetrate a deprivation of rights.

However artificial such a distinction may be, in defining what is “under color of law” the cases draw a distinction between activities that are so wholly unconnected to one's authority that they are functionally equivalent to those of any private citizen (and so are not under color of law) and those that are improper extensions of one's authority (and thus do count as under color of law). Inevitably that inquiry ends up becoming highly fact-specific. For instance, Wilson, id. at 393 held that an alderman was not acting under the color of state law when he showed up at an auto repair shop and punched an auto mechanic, even though he was visiting the auto repair shop to address a problem raised by his constituents. Even if he arrived at the shop “in a capacity legitimately related to his role as legislator,” the ensuing decision to haul off and punch the mechanic was wholly unconnected to his legislative duties (id. ). It “entered the realm of law enforcement” (id. ).

Moreover, the fact that an individual uses the accoutrements of state authority is not always conclusive (see Gibson, 910 F.2d at 1516 ), though of course it can be relevant. In Vanderlinde v. Brochman, 792 F.Supp. 52, 53–54 (N.D.Ill.1992), a case that defendants argue parallels the one at hand, this Court found no action under color of law when a duo of firefighters flashed their badges, proclaimed that they were “the law in Oak Lawn” and proceeded to brutally beat up two individuals. In that context the firefighters were not misusing any power that they “possessed by virtue of state law,” because law enforcement was no part of their job definition.

This is not to say that only law enforcement officers can act under color of law when they use such force. For example, some colleagues of this Court have upheld claims against non-law-enforcement officers when the use of force is simultaneous with and triggered by an official duty. For example, Cole v. City of Chicago, 06 C 4704, 2008 WL 68687, at *4 (N.D.Ill. Jan. 4, 2008) held that a paramedic acted “under color of state law” when he allegedly used excessive force while moving the plaintiff in and out of the ambulance, and Travis v. Keiper–Knapp, 09 C 3469, 2011 WL 5395821, at *3 (N.D.Ill. Nov. 8, 2011) held similarly where paramedics used force “in part ... so that the paramedics ... could complete their duties.”

On analysis this case comes closer to the paramedic cases than to Vanderlinde —Ali's allegations create the plausible inference that the firefighters' use of force was coextensive with the exercise—though an improper exercise—of a job-related duty. As the FAC alleges, the firefighters were on duty and operating the equipment as part of their ordinary duties at the point that Holdefer sprayed Ali with the fire hose. Other factors, too, support the conclusion that Ali has adequately pleaded action under color of state law: Unlike the firefighters in Vanderlinde, Holdefer used a fire hose—a tool with which he was uniquely entrusted by virtue of his official position—to perpetrate the alleged harm. In addition, he was then clearly on duty—and at the station...