Laporta v. City of Chi., Case No. 14 C 9665

• Decision Date: 24 April 2015
• Docket Number: Case No. 14 C 9665
• Parties: Michael A. LaPorta, as Guardian of the Estate and Person of Michael D. LaPorta, Plaintiff, v. City of Chicago, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

102 F.Supp.3d 1014

Michael A. LaPorta, as Guardian of the Estate and Person of Michael D. LaPorta, Plaintiff,

v.City of Chicago, et al., Defendants.

Case No. 14 C 9665

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

Signed April 24, 2015

Angela Pauline Kurtz, Antonio Maurizio Romanucci, Bruno R. Marasso, Romanucci & Blandin, LLC, Carl S. Salvato, Jason Edward Hammond, Paul George O'Toole, Salvato & O'Toole, Chicago, IL, for Plaintiff.

Jonathan Clark Green, Joseph M. Polick, Chicago Corporation Counsel, Marion Claire Moore, City of Chicago Department of Law, Federal Civil Rights Litigation Division, Robert M. Burke, Jr., Heineke & Burke LLC, Daniel P. Costello, Daniel P. Costello & Associates, LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Harry D. Leinenweber, Judge, United States District Court

This case arose in the early morning hours of January 12, 2010, when, after a night of heavy drinking, an off-duty police officer's firearm discharged a bullet into the back of Plaintiff Michael D. LaPorta's (“LaPorta”) head. LaPorta's seven-count Complaint alleges that Defendant City of Chicago (the “City”) engaged in willful and wanton conduct, violated 42 U.S.C. § 1983, and committed civil conspiracy, and that two Defendant bar owners violated Illinois' Dram Shop Act. Before the Court is the City's Rule 12(b)(6) Motion to Dismiss Counts I, IV, V, VI, and VII [ECF No. 24]. For the reasons stated herein, the City's Motion is granted in part and denied in part.

I. BACKGROUND

The factual allegations contained in LaPorta's Complaint are briefly summarized below.

Late in the evening, on January 11, 2010, LaPorta and Patrick Kelly, a Chicago Police Department (“CPD”) officer, visited a bar called McNally's on the South Side of Chicago. There, they joined several other CPD officers, who were Officer Kelly's friends and coworkers. Drinking ensued, and Officer Kelly became intoxicated. Officer Kelly, LaPorta, and several others then traveled to another bar, Brewbakers, where more alcohol was consumed.

By early morning, LaPorta and Officer Kelly found themselves alone at Officer Kelly's residence. What happened next is as blurry as the alcohol-fueled evening the Complaint describes. LaPorta alleges that “Kelly's service weapon discharged and a bullet from said weapon struck Michael D. LaPorta, in the back of the head.” (Compl., ECF No. 1, ¶ 38). How the gun went off is unclear.

At 4:30 a.m., a CPD officer arrived at Officer Kelly's residence in response to a 9–1–1 call. A belligerent Officer Kelly began to take swings at the responding officer. Other officers soon arrived on the scene, and Officer Kelly was subsequently charged with assault, although that charge was later dismissed with prejudice. According to LaPorta, Officer Kelly has a long history of complaints for excessive force and other misconduct on and off the job. From 2005 to 2009, 15 Complaint Registers (“CR”) were filed against him.

On October 18, 2010, Michael A. LaPorta, as guardian of Michael D. LaPorta, filed suit in the Circuit Court of Cook County. Since filing suit, LaPorta alleges that the City has taken numerous steps to hide information from him and prevent him from discovering his claims. This apparently caused LaPorta to file multiple motions to compel and motions for sanctions in the state court action. Shortly after filing suit, LaPorta requested documents from the Independent Police Review Authority (“IPRA”), a division of the City of Chicago that investigates allegations of police misconduct. He did not receive any documents until more than two years later, and alleges that he is still awaiting a response to his request to the City for additional information regarding Officer Kelly's IPRA file. The City originally misreported that Officer Kelly had only received ten CRs prior to the LaPorta incident, when, in fact, he had received 15.

On March 10, 2014, the Illinois Appellate Court issued a decision in Kalven v. City of Chicago,379 Ill.Dec. 903, 7 N.E.3d 741 (Ill.App.Ct.2014), holding that CRs and Repeater Lists (“RL”), which identify CPD officers who have amassed the most complaints, are not exempt from disclosure under the Freedom of Information Act. LaPorta claims that this decision, along with the City's efforts to frustrate his attempts to obtain information, revealed several additional theories of liability against the City. On November 5, 2014, Plaintiff filed his Fifth Amended Complaint (the “Complaint”), which included new Monell, right of access, and conspiracy claims. On December 3, 2014, the action was timely removed to the Northern District of Illinois.

II. LEGAL STANDARD

A motion to dismiss for failure to state a claim under Rule 12(b)(6) challenges the legal sufficiency of a complaint. Hallinan v. Fraternal Order of Chi. Lodge No. 7,570 F.3d 811, 820 (7th Cir.2009). A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When considering a Rule 12(b)(6) motion to dismiss, a court must accept the plaintiff's allegations as true, and view them in the light most favorable to the plaintiff. Meriwether v. Faulkner,821 F.2d 408, 410 (7th Cir.1987). A court need not accept as true “legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Brooks v. Ross,578 F.3d 574, 581 (7th Cir.2009)(quoting Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotations and alterations omitted).

III. ANALYSIS

The Court examines LaPorta's claims against the City in the order in which they are pleaded, except for his right of access claim, which the Court addresses last.

A. Count I—Willful and Wanton Conduct

Count I alleges that the City engaged in willful and wanton conduct when it allowed Officer Kelly to carry his service weapon while off duty and failed to train or supervise him regarding weapon storage, despite the City's knowledge of Officer Kelly's “dangerous propensities.” (Compl. ¶ 81.) The City argues that LaPorta's allegations are too conclusory to state a claim, and alternatively, are barred by Sections 4–102 and 2–109 of the Illinois Tort Immunity Act.

The Illinois Tort Immunity Act defines “willful and wanton conduct” as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1–210. Willful and wanton conduct is distinct from ordinary negligence. Oravek v. Cmty. Sch. Dist. 146,264 Ill.App.3d 895, 202 Ill.Dec. 15, 637 N.E.2d 554, 557 (1994). “To sufficiently plead willful and wanton conduct, a plaintiff must allege not only duty, breach, and proximate cause, but also that the defendant engaged in a course of action that showed a deliberate intention to harm or an utter indifference to or conscious disregard for the plaintiff's welfare.” Floyd v. Rockford Park Dist.,355 Ill.App.3d 695, 291 Ill.Dec. 418, 823 N.E.2d 1004, 1009 (2005)(internal citations omitted). A municipality has an independent duty, as an employer, “to refrain from hiring or retaining an employee who is a threat to third persons to whom the employee is exposed.” Bates v. Doria,150 Ill.App.3d 1025, 104 Ill.Dec. 191, 502 N.E.2d 454, 458 (1986).

Here, LaPorta has plausibly alleged a claim for willful and wanton conduct. First, LaPorta alleges that the City had a duty not to retain Officer Kelly—and permit him to carry his service weapon while off duty—in light of Officer Kelly's known history of alleged misconduct. In a four-year timeframe, Officer Kelly amassed 15 CRs alleging excessive force and other wrongdoing. Although only two of the CRs involved off-duty conduct, and none dealt with handling or storing a weapon, the Court finds that the City's knowledge of these complaints could give rise to a duty not to retain Officer Kelly.

Second, LaPorta alleges that the City breached its duty, when “with utter indifference and conscious disregard,” it permitted Officer Kelly to possess his service weapon while off duty and failed to train or supervise him regarding storage of the weapon. (Compl. ¶ 81.) While the Complaint does not contain specific facts as to what training (if any) the City provided, it shows that Officer Kelly was an active CPD officer who possessed his service weapon while off duty, despite the fact that more than a dozen complaints had been lodged against him in a short span of time. Finally, LaPorta alleges that the City's retention of Officer Kelly was the direct and proximate cause of his injuries. (Id.¶ 82.) At the motion to dismiss stage, the Court finds these facts sufficient to establish that the City was indifferent toward its duty not to retain officers who pose a risk to third persons, and that this indifference caused LaPorta's injuries.

The City alternatively argues that Sections 4–102 and 2–109 of the Illinois Tort Immunity Act (the “Act”) bar LaPorta's claim. Section 4–102 provides that public entities cannot be held liable “for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.”745 ILCS 10/4–102. Section 4–102mirrors the “public duty rule,” under which a municipality cannot be held liable for its failure to provide routine governmental services, such as police and fire protection, absent a special duty to a particular individual. Harinek v. 161 N. Clark St. Ltd. P'ship,181 Ill.2d 335, 230 Ill.Dec. 11, 692 N.E.2d 1177, 1183 (1998).

Here, LaPorta's claim is not that the City breached its duty to him by failing to provide adequate police protection. Rather, LaPorta alleges that the City breached its duty by retaining an officer who allegedly posed a threat to the public. A city's duty to “to refrain from hiring or...