Cui v. Elmhurst Police Dep't, Corp.

• Decision Date: 14 May 2015
• Docket Number: No. 14 C 8330,14 C 8330
• Court: U.S. District Court — Northern District of Illinois
• Parties: HANG CUI, Plaintiff, v. ELMHURST POLICE DEPARTMENT, a municipal corporation, LYNN KUBYCHECK, an individual, and JON KUBYCHECK, an individual, Defendants.

HANG CUI, Plaintiff, v. ELMHURST POLICE DEPARTMENT, a municipal corporation,LYNN KUBYCHECK, an individual, and JON KUBYCHECK, an individual, Defendants.

No. 14 C 8330

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 14, 2015

Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Court Judge:

Pro se Plaintiff Hang Cui ("Cui") brings a nine-count complaint against Defendants City of Elmhurst Police Department ("EPD"), Lynn Kubycheck, ("Lynn") and Jon Kubycheck ("Jon"). The complaint alleges violations of Cui's civil rights protected by the Constitution and laws of the United States under 42 U.S.C. §§ 1983, 1985, and 1986, as well as violations of state law. EPD moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ For the following reasons, we grant EPD's motion but allow Cui to amend the complaint to pursue certain claims against the City of Elmhurst and individual EPD officers. If Cui chooses to file an amended complaint consistent with the opinion, he must do so on or by June 12, 2015.

BACKGROUND

Lynn became the owner of the property at 506 E. Park Avenue, in Elmhurst, Illinois, which Cui then rented. Cui alleges that, on June 27, 2012, Lynn and Jon broke into his home and evicted Cui and his family, with the help of police officers Joseph Dudek and Tim Westering. (Dkt. No. 22 (Am. Compl.) ¶ 6.) Cui refused to leave and, as a result, a police officer served him a trespass warning notice. (Id.) On June 28, 2012, Cui filed a complaint against Lynn and Jon with EPD. (Id.) EPD allegedly refused to take the complaint. (Id.)

On January 9, 2013, Lynn filed a complaint with EPD against Cui regarding an insufficiently funded check. (Id.) Cui alleges that, without thorough investigation into the rental dispute between Cui and Lynn, the police arrested him on March 12, 2013.² (Id.) On May 2, 2014, the prosecutor dropped the criminal case against Cui. (Id. ¶ 13.)

On September 24, 2014, Cui filed a complaint against Defendants in state court. (Dkt. No. 1-1, Ex. A (9/24/14 Circuit Ct. Compl.) ¶ 1.) In his complaint, Cui brings claims under 42 U.S.C. §§ 1983, 1985 and 1986 and alleges, among other things, that Defendants violated the Constitution and laws of the United States. (Id.) EPD removed this action to federal court on October 23, 2014. (Dkt. Nos. 1, 6.) EPD subsequently filed the present motion to dismiss. (Dkt. No. 7.)

STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to "test the sufficiency of the complaint, not to decide the merits of the case." Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts "to state a claim [for] relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618-19 (7th Cir. 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." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Although a facially plausible complaint need not contain "detailed factual allegations," it must allege facts sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Id. at 555, 127 S. Ct. at 1964.

Even if sufficiently plead, a complaint can also fail under Rule 12(b)(6) if the defendant can show that relief is barred by the applicable statute of limitations. Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920 (2007); Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 802 (7th Cir. 2008). A statute of limitations defense "may be raised in a motion to dismiss if 'the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense.'" Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). Although a complaint need not anticipate and address affirmative defenses, "dismissal is appropriate when the plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint's tardiness." Cancer Found., Inc. v. CerberusCapital Mgmt., LP, 559 F.3d 671, 674-75 (7th Cir. 2009); Hollander v. Brown, 457 F.3d 688, 690 (7th Cir. 2006).

In evaluating the allegations, we also bear in mind that we are under a special obligation to construe Cui's pleadings liberally because of his pro se status. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007); Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996).

ANALYSIS

In its motion, EPD argues that it is not a suable entity, a question we address first below. We then consider whether we should permit Cui to amend the complaint to include either the City of Elmhurst or the individual police officers as defendants to his federal and state claims.

A. EPD Is Not a Suable Entity

EPD argues that the claims against it must be dismissed because it is not a suable entity. Under Rule 17(b), a defendant in a lawsuit must possess the legal capacity to be sued, and, in this instance, that capacity is analyzed under the law of the state where the court is located. Fed. R. Civ. P. 17(b). Illinois law is thus applicable and provides that "[a] party to litigation must have a legal existence, either natural or artificial, to sue or be sued." Hall v. Will. of Flossmoor Police Dep't, No. 11 C 5283, 2012 WL 379902, at *2 (N.D. Ill. Feb. 1, 2012) (quoting Jackson v. Vill. of Rosemont, 180 Ill. App. 3d 932, 937, 536 N.E.2d 720, 732 (1st Dist. 1988)).

It is well-settled that a city's police department is not a separate legal entity under Illinois law and cannot be sued directly. Chan v. City of Chi., 123 F.3d 1005, 1007 (7th Cir. 1997); see also Posey v. Pruger, 762 F. Supp. 2d 1086, 1089-90 (N.D. Ill. 2011) (explaining further that "[a]ny action against the CPD therefore signifies the City as the real party in interest"); Yachninv. Vill. of Libertyville, 803 F. Supp. 2d 844, 847 (N.D. Ill. 2011) (stating that the Libertyville police department, like other departments, is an instrumentality of the town and has no separate legal existence); Williams v. Hutchens, 870 F. Supp. 857, 860 (N.D. Ill. 1994) (concluding that the Downers Grove police department is "merely an organizational division" of that town and cannot be sued); Niebur v. Town of Cicero, 212 F. Supp. 2d 790, 825 (N.D. Ill. 2002) (dismissing claims against Cicero police board). As such, Cui cannot sue EPD. We therefore grant EPD's motion and dismiss all claims against it with prejudice.

B. The City of Elmhurst as a Defendant

The next question we must address is whether to allow Cui to amend his complaint to add the City of Elmhurst ("City") as a defendant in lieu of EPD.³ Pursuant to Rule 15(a)(2), we should freely give leave for amendments "when justice so requires." Fed. R. Civ. P. 15(a)(2); Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008). Although Rule 15 "reflects a liberal attitude towards the amendment of pleadings," we may deny an amendment for various reasons, such as if amendment would be prejudicial or futile, or if it would unduly delay the proceedings. Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 848-49 (7th Cir. 2002); see Arlin-Golf, LLC v. Vill. of Arlington Heights, 631 F.3d 818, 823 (7th Cir. 2011); London v. RBS Citizens, N.A., 600 F.3d 742, 747 n.5 (7th Cir. 2010).

Here, we consider whether any potential amendment would be futile; that is, whether an amended complaint brought against other defendants could survive a subsequent motion to dismiss. Gen'l Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997); Dewick v. Maytag Corp., 296 F. Supp. 2d 905, 907 (N.D. Ill. 2003). We begin with the potential federal claims and then address whether Cui may amend the complaint to assert state-law claims against the City. As discussed in detail below, Cui's allegations—with the exception of malicious prosecution—would not survive a motion to dismiss if brought against the City.

1. Sufficiency of Federal Constitutional Claims (Counts III, V, VII, and IX)

Municipal entities "cannot be held liable for the unconstitutional acts of their employees unless those acts were carried out pursuant to an official custom or policy." Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (internal quotation omitted); see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978); McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011); Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). To state a so-called Monell claim under 42 U.S.C. § 1983 against a municipality—like the City—a plaintiff must allege that the official policy or custom "not only caused the constitutional violation, but was the moving force behind it." Estate of Sims. ex. Rel. Sims v. Cty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007); Grieveson, 538 F.3d at 771; see also Wagner v. Washington Cty., 493 F.3d 833, 836 (7th Cir. 2007) (explaining that plaintiffs raising Monell claims must allege a violation based on "some official policy, widespread custom, or deliberate act of a . . . decision-maker of the municipality or department").

Based on our review of the complaint, however, Cui has not raised Monell allegations. He has neither identified any custom or policy of the City, nor alleged that such a...