Cazares v. Rand
| Decision Date | 24 March 2022 |
| Docket Number | 21-cv-1022 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | ADRIANA CAZARES, on behalf of herself and as administrator of the estate of Victor M. Cazares, Jr., AND MICHELLE CAZARES, Plaintiffs, v. FRANK R. RAND, JUSTIN ZHENG, GENE LAZCANO, and TOWN OF CICERO, ILLINOIS, a municipal corporation, Defendants. |
Before this Court is a lawsuit brought under 42 U.S.C. § 1983 centered on a photograph of Victor M. Cazares, Jr. (“Mr. Cazares”) taken after he was tragically shot in Cicero, Illinois, during the June 2020 civil unrest. On behalf of themselves and as administrator of Mr Cazares's estate, Mr. Cazares' sisters, Adriana and Michelle Cazares, bring this action against a retired Cicero Fire Department Lieutenant and two EMT paramedics, alleging that the three men took a photo of Mr. Cazares as he died and posted it on Facebook. Plaintiffs seek damages from all three Defendants and indemnification from the Town of Cicero alleging that dissemination of the photo violated their rights under federal and state law.
The Town of Cicero and EMT Paramedics, Justin Zheng and Gene Lazcano, have moved to dismiss the Complaint [1] against them in its entirety. For the reasons that follow, the Court grants motions [19, 22] because Plaintiffs have failed to allege the deprivation of a fundamental right and thus cannot maintain their § 1983 claims (Counts One and Two). Counts Three and Four also are subject to dismissal, as stipulated by the Plaintiffs. And Counts Five, Six, Seven Eight and Nine-all state law claims-are dismissed without prejudice as the Court declines to exercise supplemental jurisdiction given the dismissal of all federal claims.[1] Accordingly, the Court dismisses the Complaint [1] in its entirety. A final judgment will be entered consistent with Federal Rule of Civil Procedure 58 in favor of Defendants and against Plaintiffs on Counts One through Four.[2] Plaintiffs are free to refile Counts Five through Nine in state court within one year pursuant to 735 ILCS 5/13-217. Civil case terminated.
During the summer of 2020, millions of individuals gathered across the country to engage in protest activity, including in the town of Cicero, Illinois. [1 (Compl.) at ¶¶ 1, 21]. Among other things, the protesters called for an end to racial injustice and excessive use of force by members of law enforcement. [Id.]. On June 1, 2020, while protests were ongoing in Cicero, police reported that looting and vandalism had also broken out. [Id. at ¶¶ 21-22]. Victor M. Cazares, Jr. (“Mr. Cazares”) gathered with several neighbors in front of a local grocery to discourage looting. [Id. at ¶¶ 4, 23-24]. At around 6 p.m., shots fired by an unknown person hit Mr. Cazares in the head. [Id. at ¶ 25]. The Town of Cicero dispatched two Cicero Fire Department EMT paramedics, Justin Zheng and Gene Lazcano, to administer emergency medical care. [Id. at ¶¶ 16, 17, 26]. When Zheng and Lazcano reached Mr. Cazares at 6:23 pm, he was still breathing and had a pulse. Paramedics Zheng and Lazcano dispensed medical aid to him. [Id. at ¶¶ 27-28]. Nevertheless, Mr. Cazares died later that evening. [Id. at ¶¶ 29, 4].
Central to this Complaint, a photo of Mr. Cazares, wounded and on a stretcher, was disseminated on social media. According to the Complaint, while administering aid, “Zheng and Lazcano, took or caused another to take, one or more photograph[s] of Mr. Cazares without his consent.” [1 (Compl.) at ¶ 30]. According to the Complaint, the photograph depicts “Mr. Cazares on the ambulance stretcher, his head having been bandaged and dying” with the stretcher “covered in blood and the bandage roll on Mr. Cazares' head * * * red and wet.” [Id. at ¶ 31]. Another individual, Defendant Frank R. Rand, posted that photograph of Mr. Cazares to an 8, 000-member Facebook group “for people who grew up in Cicero, Illinois” at 6:25 p.m., i.e., within two minutes of the paramedics' arrival on the scene. [Id. at ¶ 32]. Accompanying the photo is the message, [Id. at ¶ 34].
Also relevant here, the Complaint alleges that Rand has “significant contacts” with Zheng, Lazcano, and the Cicero Fire Department (CFD) and that all three men played a role in the disclosure of the photograph. [1 (Compl.) at ¶ 15]. Although Rand is a resident of Michigan, he is also a former lieutenant of the CFD, for which he worked for twenty-six years until his retirement in 2019. [Id.]. The Complaint further states that the Paramedics played a role in the disclosure of the photo:
[b]ased on the fact that [the] photo shows Mr. Cazares on the ambulance stretcher with wounds bandaged, was posted within two minutes of the ambulance arrival, and was posted by a person with ties to the CFD, Plaintiffs are informed and believe that Defendants Zheng and Lazcano took the photograph and supplied it to Rand, or acted in conspiracy with another who did so.
[Id. at ¶ 35]. The Complaint also alleges that Mr. Cazares, his family, and “others associated with them” endured offensive comments and taunts following the Facebook post and “suffered grievous injuries” “as a result of Defendants' actions.” [Id. at ¶¶ 36-37].
This lawsuit followed. Mr. Cazares' sister, Adriana Cazares, filed suit in federal court on behalf of herself and as Administrator of the Estate of Victor M. Cazares, Jr. Another sister, Michelle Cazares, is a co-Plaintiff. Paramedics Zheng and Lazcano, Frank R. Rand, and the Town of Cicero (“Cicero”) are the four Defendants. In the Complaint [1], Plaintiffs allege that Defendants violated 42 U.S.C. § 1983 by depriving and conspiring to deprive Plaintiffs of their federal due process rights under the Fourteenth Amendment (Counts One and Two), together with a mixture of state law claims for invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, and state law conspiracy (Counts Three, Four, Five, Six, Seven). The Complaint also seeks indemnification from Cicero (Count Eight) and to hold Cicero liable under the principle of respondeat superior (Count Nine) as Zheng's and Lazcano's employer.
Three of the four defendants moved to dismiss the Complaint in its entirety. Defendant Town of Cicero (“Cicero”) moved [19] to dismiss under Federal Rule of Civil Procedure 12(b)(6). Subsequently, Defendants Zheng and Lazcano (collectively “Paramedic Defendants”) moved [22] pursuant to Rule 12(b)(6). Those motions are now before this Court.
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint typically must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S at 555). In determining whether the complaint meets this standard, the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth, 507 F.3d at 618. III. Analysis
Both Cicero and the Paramedic Defendants move to dismiss the Complaint [1] in its entirety. In its motion [19], Cicero argues that (1) it is not liable to indemnify the Individual Defendants, (2) the Complaint does not state plausible claims for a violation of substantive due process, defamation, breach of contract, and respondeat superior, (3) the conspiracy counts should also therefore be dismissed, and (4) the Tort Immunity Act bars liability against the Town for violations of the remaining state law claims. Similar to Cicero's second basis for dismissal, the Paramedic Defendants assert in their motion [22] that the Complaint fails to plausibly allege the deprivation of a fundamental right for substantive due process purposes or conspiratorial agreement among the Paramedic Defendants and Mr. Rand. The Paramedic Defendants likewise seek the dismissal of the remainder of the Complaint, arguing that (1) state-law claims for invasion of privacy, defamation, and intentional infliction of emotional distress do not survive the death of Mr. Cazares, (2) the Complaint does not state a claim for breach of contract, and (3) the allegations do not state Michelle Cazares' damages.
The Court begins and ends this order-and the entire case in federal court-with its assessment of Plaintiffs' federal law claims. Counts One and Two of the Complaint allege that Defendants violated 42 U.S.C. § 1983 by depriving (Count One) and conspiring to deprive (Count Two) Plaintiffs' substantive due process rights under the Fourteenth Amendment. Both Cicero and Paramedic Defendants assert that the Complaint fails to allege a violation of a fundamental right. Plaintiffs respond that the Complaint adequately alleges that the Paramedic Defendants deprived and conspired with Rand to deprive Plaintiffs of the “qualified constitutional right to medical privacy” under color of law. ( )) .
Defendants have the better of the argument. The Due Process Clause of the Fourteenth Amendment “provides heightened protection against government interference with certain...
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