Gates v. Towery

• Decision Date: 20 June 2006
• Docket Number: No. 04-C-2155.,04-C-2155.
• Citation: 435 F.Supp.2d 794
• Parties: Elton GATES and Luster Nelson, Plaintiffs, v. Officer B. TOWERY, Star No. 8233, Officer P. Galiardo, Star No. 19174, and the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

435 F.Supp.2d 794

Elton GATES and Luster Nelson, Plaintiffs, v. Officer B. TOWERY, Star No. 8233, Officer P. Galiardo, Star No. 19174, and the City of Chicago, Defendants.

No. 04-C-2155.

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

June 20, 2006.

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Thomas M. Peters, Law Offices of Thomas Peters, Kevin R. Peters, Law Offices of Kevin Peters, Mary F. Desloover, Law Offices of Mary Desloover, Chicago, IL, for Plaintiff.

Jonathan Clark Green, Chicago Corporation Counsel, Robert W. Barber, Mara Stacy Georges, City of Chicago, Department of Law, Brian L. Crowe, Allan T. Slagel, John J. Hagerty, Kim Renee Walberg, Suzanne L. Sias, Shefsky & Froelich Ltd., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiffs Elton Gates and Luster Nelson (together "Plaintiffs"). have brought a class action suit against the City of Chicago ("the City") and Superintendent of Police Philip Cline (together, "the City Defendants"), as well as police officers B. Towery and P. Galiardo (collectively "Defendants"). Plaintiffs allege that Defendants violated their Fourteenth Amendment due process rights and Illinois law by propagating a policy whereby police officers seize money found in the vicinity of a person placed under arrest, issue an inventory receipt for the money which states that, the arrestee will be notified when the money available for release, and then never provide notice that the money is available. Plaintiffs further allege that Defendants ignored their repeated demands for the return of their property. Currently before the Court are two motions: the City Defendants' motion to dismiss the fourth amended complaint filed in this suit, (R. 140-1), and Plaintiffs' motion to segregate a class fund, (R. 164-1). In the interest of maximizing efficiency in what is currently one of the oldest cases on this Court's docket,¹ this opinion will address and resolve both motions.

PROCEDURAL HISTORY

Plaintiffs filed their original complaint in this case on March 23, 2004, alleging that Defendants' policy of issuing false or misleading inventory receipts violated their Fourth, Fifth, and Fourteenth Amendment rights. After considering Defendants' first motion to dismiss, this Court dismissed the case without prejudice. Upon Plaintiffs' motion to reconsider, however, this Court reinstated the case only with respect to the Fourteenth Amendment due process claim. See Gates v. Towery, 331 F.Supp.2d 666 (N.D.Ill.2004). On November 9, 2004, this Court certified the following class:

All those persons who, after June 26, 2001, had property taken from them upon their arrests by Chicago police officers provided: a) the criminal charges against them have been resolved in the trial court; b) no forfeiture action was commenced against the seized property; c) the time for filing a forfeiture action has expired; d) the property was not inventoried as evidence in any criminal investigation; e) the arrestee was issued an inventory receipt when arrested indicating that the arrestee would be notified when the property was available for pick-up; and f) the money has not been returned to the arrestee.

Gates v. Towery, 04-C-2155, 2004 WL 2583905, *9 (N.D.Ill. Nov. 10, 2004). Defendants appealed the certification decision to the Seventh Circuit, which affirmed the class certification on December 21, 2005. Gates v. Towery, 430 F.3d 429, 432 (7th Cir.2005). Discovery proceeded in the case during the pendency of the appeal.

On February 7, 2006, Plaintiffs filed what is now the fifth incarnation of the complaint in this case. (R. 82, Fourth Am. Compl.) The fourth amended complaint adds six new counts seeking compensatory and punitive damages on behalf of Plaintiffs and the class for conversion and replevin under Illinois law and seeking return of the class's property under Illinois's Uniform Disposition of Unclaimed Property Act ("UDUPA"), 765 ILCS 1025/1, et seq. (Id. at 13-16.) Plaintiffs then sought certification of a supplemental class to accommodate the longer statute of limitations period for their state law claims and their theory that they do not have to prove that the inventory receipts were false or misleading to prevail on their state law claims. (R. 90, Pls.' Mot. to Certify Supp. Class at 2.) On March 30, 2006, this Court granted Plaintiffs' motion. (R. 143, 3/03/06 Order.)

On March 29, 2006, the City Defendants moved to dismiss the fourth amended complaint in its entirety. (R. 140-1.) Plaintiffs then filed a motion to segregate a class fund in which they ask this Court to issue an order to transfer $6 million into an interest-bearing account "to preserve and protect the class fund." (R. 164-1, Mot. to Segregate at 3.)

MOTION TO DISMISS

I. Legal Standard

This Court will only dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) if it appears "beyond doubt that the plaintiff cannot prove any set of facts" in support of his claim which would entitle him to relief. Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517 521 (7th Cir.2001) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering a Rule 12(b)(6) motion to dismiss, this Court draws all reasonable inferences in favor of the plaintiff and accepts as true all well-pleaded factual allegations. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir.2000).

II. Analysis

In moving to dismiss the fourth amended complaint, the City Defendants argue that Plaintiffs have not alleged a sufficient custom or policy to support their due process claims against Cline in his official capacity. They also argue that Plaintiffs have not alleged sufficient personal involvement to support their due process claims against Cline in his individual capacity² (R. 141, Defs.' Br. at 3-6.) They further argue that Gates's conversion and replevin claims are barred by the statute of limitations and that Plaintiffs have not met the pleading requirements necessary to sustain their conversion and replevin claims. (Id. at 7-11.) Finally, the City Defendants argue that we should dismiss Plaintiffs' claim under the UDUPA because that statute does not create a private cause of action, or, in the alternative, because a valid city ordinance or the Law Enforcement Disposition of Property Act ("LEDPA"), 765 ILCS 1030/0.01, et seq., governs the disposition of unclaimed funds in this case. (Id. at 11-14.) We will address each of these arguments below.

A. Claims Against Cline

The fourth amended complaint does not specify whether the claims against Cline are made in his individual or official capacity. In their response brief, Plaintiffs clarify that Cline is sued only in his official capacity. (R. 151, Pls.' Resp. at 7.) Their clarification is consistent with the allegations of the complaint, which refer to Cline's implementation of the alleged policy in his role as Superintendent of Police. (R. 82, Fourth Am. Compl. ¶¶ 2, 9, 10.) "[A]n official capacity suit will be presumed when the indicia of an official policy or custom are present in the complaint." Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir.1991); see also Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th Cir. 1985). Because Cline is sued only in his official capacity, the City Defendants' motion to dismiss any individual claims against Cline is denied as moot.

In their opening brief, the City Defendants argue that any official capacity claims against Cline should be dismissed because Plaintiffs inadequately alleged an unconstitutional policy. (R. 141, Defs.' Br. at 5-6.) It is not clear whether the City Defendants withdrew this argument with respect to Cline in their reply brief.³ Regardless Plaintiffs' allegations against Cline in his official capacity are sufficient to survive a motion to dismiss. To sustain a Section 1983 claim against a government official acting in his official capacity, a plaintiff must allege that a government official took action under color of state law that caused the deprivation of a federal law and can be linked to the government's policy or custom. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also Hill, 924 F.2d at 1372. The fourth amended complaint identifies Cline as Superintendent of Police and states that together with the City, he sets and implements the policies which require arresting officers to seize money from an arrestee, issue a false or misleading inventory receipt, and then refuse to return the money when an arrestee makes a demand. (R. 82, Fourth Am. Compl. ¶¶ 2, 9-15, 23, 25.) Accordingly, Plaintiffs have sufficiently alleged an official capacity claim against Cline.

B. Gates's Conversion and Replevin Claims: Statute of Limitations

Plaintiffs agree that their conversion and replevin claims are subject to the one-year statute of limitations set forth in the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("the Tort Immunity Act"), 745 ILCS 10/8-101(a). (See R. 118, Pls.' Reply in Support of Mot. to Certify Supp. Class at 7); see also Evans v. City of Chicago, 434 F.3d 916, 934-35 (7th Cir.2006) (noting that "[t]he limitations period for tort claims ... against governmental entities and their employees ... is only one year pursuant to 745 ILCS 10/8-101"). The City Defendants argue that Gates's conversion and replevin claims are barred by the statute of limitations because his causes of action accrued on January 14, 2003 — the date on which he was arrested and his property seized — and he did not file his original complaint until March 23, 2004, more than two months after the oneyear period expired.⁴ (R. 141, Defs.' Br. at 9.) Plaintiffs, on the other hand, assert that Gates's conversion and replevin claims did not accrue until June 26, 2003, the date on which Gates's trial was concluded and he was first able to demand the return of his property. (R. 151, Pls.' Resp...