Cui v. Elmhurst Police Dep't, Corp., 14 C 8330
| Decision Date | 17 September 2015 |
| Docket Number | No. 14 C 8330,14 C 8330 |
| Parties | HANG CUI, Plaintiff, v. ELMHURST POLICE DEPARTMENT, a municipal corporation, LYNN KUBYCHECK, an individual, and JON KUBYCHECK, an individual, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Hon. Marvin E. Aspen
Pro se Plaintiff Hang Cui ("Cui") filed an eight-count second amended complaint against the City of Elmhurst ("The City"), Police Officer Steven Mandat ("Officer Mandat"), in his individual and official capacities, and private citizens Lynn Kubycheck, ("Lynn") and Jon Kubycheck ("Jon"). We previously dismissed all claims originally filed against the City of Elmhurst Police Department ("EPD"), and granted Cui limited leave to file an amended complaint against the City and individual officers. Cui's second amended complaint re-alleges violations of his civil rights under 42 U.S.C. §§ 1983, 1985, and 1986, as well as violations of state law. Presently before us are two motions to dismiss, one filed by the City and Officer Mandat, and other filed by Lynn and Jon Kubycheck. For the following reasons, we grant the City's and Officer Mandat's motion, except as to the racial discrimination claim against Officer Mandat, and we grant the Kubychecks' motion in part.
Cui claims 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. (2d Am. Compl. ¶ 6.) At the time of the alleged eviction, Lynn had recently become the owner of the home, which Cui then rented. Cui refused to leave and, as a result, a police officer served him a trespass warning notice. (Id.) The next day, Cui went to EDP to file a complaint against Lynn and Jon. (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 the police report was false in that it deliberately hid numerous crucial facts. (Id.) Cui alleges that EPD did not investigate the complaint in a thorough or professional manner. (Id.) He claims that Officer Mandat spoke to him in a "nasty, disgusting, and threatening" manner, and that EPD officers failed to follow-up on exculpatory information that Cui and his civil case attorney provided to them. (Id.) On March 12, 2013, the police arrested Cui on criminal charges. (Id.) On May 2, 2014, the prosecutor dropped the criminal case against him. (Id. ¶ 13.)
On May 14, 2015, we dismissed all claims against EPD, but granted Cui leave to amend his complaint to include a state-law claim of malicious prosecution against the City. (5/14/15 Order at 11, Dkt. 28.) We specifically denied Cui leave to file claims against the City for racial discrimination, conspiracy, failure to prevent conspiracy, trespass, or invasion of privacy. (Id. at 11.) We also granted Cui leave to file claims against individual police officers for malicious prosecution, false arrest, and § 1985 (conspiracy) and § 1983 (racial discrimination) claims based on conduct occurring on or after September 24, 2012. (Id. at 14, 16-17.) We denied him leave to file § 1986 () or defamation claims against individual officers.(Id. at 13.) At the time, Lynn and Jon Kubycheck had not filed a motion to dismiss, thus our order did not implicate Cui's claims against them.
Cui filed a second amended complaint on June 12, 2015. (2d Am. Compl., Dkt. 31.) The revised complaint alleges largely the same facts as in his first amended complaint. The only additions are a few allegations regarding his conversations with EPD police officers, which add little substance, and four additional exhibits. (2d Am. Compl. ¶ 6; Ex. 4-6.) The City of Elmhurst and Officer Mandat argue that many of Cui's claims against them are barred by our previous order, and in any event the complaint still fails to state viable claims. (City Mem., Dkt. 45.) Despite the fact that Cui did not have leave to amend certain of his claims, since he is a pro se plaintiff we will nonetheless review them under Rule 12(b)(6). Lynn and Jon, who filed a separate motion to dismiss, argue that the trespass, invasion of privacy, and conspiracy claims against them fail to state a claim, and the defamation claim is time-barred.
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. III. 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. Cerberus Capital 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).
We will first address the City of Elmhurst's and Officer Mandat's motion to dismiss, followed by Lynn and Jon Kubychecks' motion.
Although we only granted Cui leave to sue the City for malicious prosecution, his second amended complaint appears to re-assert state law claims of trespass, invasion of privacy and malicious prosecution, and federal claims for failure to prevent conspiracy, conspiracy, racial discrimination, and false arrest. The City argues that our prior order bars all but the malicious prosecution claim. In Cui's response to the City's motion, he defends only his malicious prosecution claim.
We agree that, with the exception of the malicious prosecution claim, Cui's claims against the City of Elmhurst are not viable for the reasons articulated in our earlier opinion. We will briefly summarize that reasoning here. As to the federal constitutional claims—Count III (failure to prevent conspiracy), Count V (racial discrimination), Count VI (false arrest) and Count VIII (conspiracy)—Cui's second amended complaint is still void of the Monell allegations necessary for claims brought under 42 U.S.C. §§ 1983, 1985, and 1986.1 The paragraph in his amended complaint where Cui should describe the custom or policy underlying his federal constitutional claims remains blank, (2d Am. Compl. ¶ 7), and the remaining allegations equallyfail to provide the necessary detail. Although in Counts V and VIII he alleges that the City and EPD acted in a "pattern to discriminate," he does not describe what that pattern is. (See id. at ¶¶ 13, 15.) Accordingly, Counts III, V, VI and VIII are dismissed with prejudice as to the City.
As for the state-law tort claims of trespass (Count I) and invasion of privacy (Count II), we previously denied Cui leave to amend his complaint against the City for trespass and invasion of privacy because these claims are time-barred. (Order at 7-9.) Our reasoning and decision stands; Counts I and II against the City are dismissed.
Finally, we turn to Cui's state-law malicious prosecution claim (Count VII). In our past Order, we reviewed the sufficiency of Cui's allegations as if they were filed against the City, and determined that he appeared to adequately allege the elements of malicious prosecution. (Order at 11.) The City now argues that the substantive amendments to Cui's complaint, including the new exhibits, establish that the officers did have probable cause to arrest Cui for issuing a bad check to Lynn. (City Mem. at 6.) Lack of probable cause is a necessary element of Cui's malicious prosecution claim. Johnson v. Saville, 575 F.3d 656, 659 (7th Cir. 2009) (); Swick v. Liautaud, 169 Ill. 2d 504, 512, 662 N.E.2d 1238, 1242 (Ill. 1996) (...
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