DuFour-Dowell v. Cogger
| Decision Date | 27 June 1997 |
| Docket Number | No. 95 C 4556.,95 C 4556. |
| Citation | 969 F.Supp. 1107 |
| Parties | Marcia DuFOUR-DOWELL, et al., Plaintiffs, v. Stephen W. COGGER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Amy Lynn Silvestri, Joseph Gerard McGraw, Joseph G. McGraw, Ltd., Rockford, IL, for plaintiffs.
Francis P. Cuisinier, Russell W. Hartigan, Patrick Halpin O'Connor, James Patrick Newman, Russell W. Hartigan & Associates, Chicago, IL, for Stephen W. Cogger, The Village of Hinsdale.
Thomas F. Downing, Ellen L. Champagne, DuPage County States Atty's Office, Wheaton, IL, for Rick Morgan.
The plaintiffs in this case are Marcia DuFour-Dowell, her husband Paul Dowell, and other relatives of these two plaintiffs who were all minors at the time this case was filed.1 Plaintiffs Yvonne DuFour and John DuFour are children of DuFour-Dowell. Plaintiff Paulette Dowell is the daughter of DuFour-Dowell and Dowell. Plaintiff Ian Kirk is the nephew of DuFour-Dowell. Named as defendants in this case were Stephen Cogger and Robert O'Malley, Village of Hinsdale police officers.2 The Village of Hinsdale was also named as a defendant. Rick Morgan, a DuPage County deputy sheriff, was named as a defendant in his individual and official capacities. The County of DuPage was also named as a defendant. The claims against O'Malley and the County of DuPage were subsequently dismissed. Plaintiff presently seeks to amend his complaint to add DuPage County Sheriff Richard Doria in his individual and official capacities.3 The amendment would also update matters in that Yvonne and Ian are now of age and may each bring claims in her or his own name.
The allegations of plaintiffs' complaints center around an incident that occurred on August 19, 1994. That incident was precipitated by an occurrence on August 11, 1994. On August 11, 1994, outside plaintiffs' home in Hinsdale, Cogger attempted to arrest Yvonne and Ian for curfew violations. DuFour-Dowell instructed Yvonne and Ian to go inside the house. Cogger had issued a citation to another person who had been in a car with Yvonne and Ian, but left without arresting or citing Yvonne or Ian. Cogger, however, did subsequently swear out a complaint against DuFour-Dowell for committing the misdemeanor of obstructing a police officer in violation of 720 ILCS 5/31-1.
Approximately 12:30 a.m. on August 19, Cogger and Morgan arrived at DuFour-Dowell's residence to attempt to serve the arrest warrant that had been issued. No attempt was made to serve the warrant earlier in the day or to inquire as to whether DuFour-Dowell would voluntarily surrender at the police station. Plaintiffs claim that excessive force was employed in arresting DuFour-Dowell. It is also claimed that Yvonne and Paulette were assaulted by Morgan. Dowell's, John's, and Ian's claims are based on witnessing the assaults upon the other plaintiffs. It is also claimed that Yvonne was temporarily restrained. Only DuFour-Dowell was formally arrested. In addition to the obstruction charge based on the August 11 incident, DuFour-Dowell was charged with committing battery and resisting a police officer during the August 19 incident. The obstruction charge was subsequently dismissed and DuFour-Dowell was found not guilty of battery. She was found guilty of resisting arrest.
Presently pending are plaintiffs' motion to amend their complaint and defendants' motions for summary judgment. Also pending are various motions to supplement, amend, or strike briefs or supporting pleadings.4 The motion to amend will be considered first.
Discovery in this case was to close on May 11, 1996. However, due to numerous discovery disputes that continued beyond that date, discovery was not substantially completed until September 1996, with some discovery also occurring in October. On September 11, 1996, submission of the final pretrial order was set for October 17, 1996. On October 3, the pretrial order submission date was reset to October 24. The parties were informed the pretrial order requirement would be postponed if either side filed a fully supported summary judgment motion by the deadline for the pretrial order. On October 24, defendants presented their motions for summary judgment and plaintiffs moved to amend their complaint.
The proposed amended complaint drops certain counts and clarifies the nature of other counts, particularly in clarifying against whom particular claims are made. It adds some additional factual allegations, but does not change the nature of the claims. The only substantive addition appears to be the adding of Doria as a defendant in his individual capacity. The claims against Doria in his individual capacity, however, are based on his personal participation in promulgating official policy or custom. Since that was already an issue as to the official capacity claim against Morgan, adding Doria as a defendant would not require additional discovery. Moreover, to any extent that Doria's personal participation in the formation of policy was not adequately investigated in discovery, it is plaintiffs who are without information; Doria does not need discovery into his own conduct. No meritorious basis is shown for denying leave to amend based on undue prejudice to any defendant. The only issue is whether adding a claim against Doria in October 1996, more than two years after the underlying incidents, is beyond the statute of limitations and therefore a futile gesture. The claims against Doria are pursuant to 42 U.S.C. § 1983, which has a two-year statute of limitations. Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 952, 136 L.Ed.2d 840 (1997). Plaintiffs contend the claims against Doria relate back to the filing of the original complaint.5 See Fed.R.Civ.P. 15(c).
The original complaint named Morgan in his official capacity, which is a claim against the DuPage County Sheriff in his official capacity. Therefore, Doria was in this case from the beginning and he does not dispute that he had notice of the suit from the beginning. The only question is whether adding claims against Doria in his individual capacity relate back. The Seventh Circuit has held that substituting for or adding to official capacity claims with individual capacity claims may relate back. See Woods v. Indiana University-Purdue University at Indianapolis, 996 F.2d 880 (7th Cir.1993); Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991). See also Kirk v. Cronvich, 629 F.2d 404 (5th Cir.1980) (cited favorably in Woods & Hill); Household Commercial Financial Services, Inc. v. Trump, 863 F.Supp. 735, 741-42 (N.D.Ill.1994). This rule may be applied even when the original complaint contained only official capacity claims and misnamed the government entity. See Kirk, supra. See also Woods, 996 F.2d at 888 n. 12. Here, Doria had adequate notice of the suit and was not in any way prejudiced by the earlier misnomer. Leave to file the amended complaint will be granted.6
The counts of the amended complaint are labeled as follows. (I) DuFour-Dowell's § 1983 claim against Cogger and Morgan7 for false arrest and excessive force. (II) DuFour-Dowell's § 1983 claim against Cogger for malicious prosecution of the obstructing a police officer charge. (III) DuFour-Dowell's § 1983 claim against Morgan for malicious prosecution of the battery charge. (IV) DuFour-Dowell's supplemental state law claim against Cogger and Morgan for false arrest. (V) DuFour-Dowell's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (VI) Dowell's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (VII) Yvonne's § 1983 claim against Morgan for excessive force. (VIII) Yvonne's supplemental state law claim against Morgan for false imprisonment and false arrest. (IX) Yvonne's supplemental state law claim against Morgan for intentional infliction of emotional distress based on Morgan's alleged battery of her. (X) Yvonne's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress based on witnessing defendants' conduct toward DuFour-Dowell. (XI) John's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (XII) Paulette's supplemental state law claim against Morgan for intentional infliction of emotional distress based on Morgan's alleged assault of her. (XIII) Paulette's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress based on witnessing defendants' conduct toward DuFour-Dowell. (XIV) Ian's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (XV) DuFour-Dowell's supplemental state law claim against Cogger and Morgan for assault and battery. (XVI) Yvonne's supplemental state law claim against Morgan for assault and battery. (XVII) Paulette's supplemental state law claim against Morgan for assault and battery. (XVIII) DuFour-Dowell's § 1983 claim against the Village of Hinsdale based on Cogger's conduct being pursuant to a custom or policy of failing to adequately discipline and train police officers. (XIX) DuFour-Dowell's § 1983 claim against Sheriff Doria in his individual and official capacities based on Morgan's conduct being pursuant to a custom or policy of failing to adequately discipline and train police officers. (XX) Yvonne's § 1983 claim against Sheriff Doria in his individual and official capacities based on Morgan's conduct being pursuant to a custom or policy of failing to adequately discipline and train police officers.
Before turning to the merits of the summary judgment motions, the various motions to supplement and strike will be addressed. After plaintiffs had answered the motions for summary judgment, defendants Cogger and Hinsdale moved to...
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