Sterling v. Kazmierczak, 96 C 8066.

• Decision Date: 25 November 1997
• Docket Number: No. 96 C 8066.,96 C 8066.
• Citation: 983 F.Supp. 1186
• Court: U.S. District Court — Northern District of Illinois
• Parties: Jerome STERLING, Jr., et al., Plaintiffs, v. W. KAZMIERCZAK, et al., Defendants.

Page 1186

983 F.Supp. 1186

Jerome STERLING, Jr., et al., Plaintiffs, v. W. KAZMIERCZAK, et al., Defendants.

No. 96 C 8066.

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

November 25, 1997.

COPYRIGHT MATERIAL OMITTED

Brenda Ann-Sahirah Rahman, Bobbitt & Pinkston, Chicago, IL, for Plaintiffs.

Michael J. Wagner, Baker & McKenzie, Chicago, IL, for Defendant Marcel Cairo.

Richard T. Wimmer, James Vincent Ferolo, Lance C. Malina, Klein, Thorpe & Jenkins, Ltd., Chicago, IL, for Defendants W. Kazmierczak and Village of Orland Park, IL.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court are two motions to dismiss plaintiffs Jerome Sterling, Jr. and Jerome Sterling, Sr.'s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The first motion is brought by defendants Officer W. Kazmierczak and the Village of Orland Park; the second is brought by defendants Sportmart, Inc. and Marcel Cairo. For the reasons that follow, the court grants both motions to dismiss.

I. BACKGROUND

Plaintiffs' first amended complaint alleges the following facts which, for the purpose of ruling on these motions, are taken as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). On November 30, 1995, Jerome Sterling, Jr. ("Sterling Jr.") entered a Sportmart, Inc. ("Sportmart") store located at 1385 Orland Park Place, Orland Park, Illinois to purchase air rifle cartridges. When he entered the store, Sterling Jr. was wearing a pair of Nike Air Jordan athletic shoes that he had purchased four days earlier from Marshall Field's. After entering the store, Sterling Jr. first searched for the air rifle cartridges, after which he went to the area of the store that had sports games for sale. He then he examined and sampled some of the games.

At that time, defendant Marcel Cairo ("Cairo"), one of the store's security guards, approached Sterling Jr. and questioned him about the pair of athletic shoes that Sterling Jr. was wearing. Sterling Jr. told Cairo that he had purchased the shoes four days earlier from Marshall Field's. Cairo did not ask Sterling Jr to show him a receipt for the shoes; rather, Cairo simply accused Sterling Jr. of stealing the shoes and removed the shoes from his feet.

Cairo then contacted the Orland Park Police. Officer W. Kazmierczak ("Officer Kazmierczak") responded to the call. Based on the information provided to him by Cairo, Officer Kazmierczak released the shoes to Cairo, arrested and handcuffed Sterling Jr., and took Sterling Jr. to the Orland Park Police Station. Sterling Jr. was charged with retail theft and placed into a holding cell until his bail was paid.

Sterling Jr. went to trial on the charge. During his trial, Sterling Jr. produced a Marshall Fields' receipt for the pair of shoes along with other evidence. He was found not guilty.

To date, Sportmart refuses to return to Sterling Jr. the pair of shoes that were taken from him. In addition, Sportmart has procured the services of defendant Civil Recovery Services to collect from Sterling Jr. the full cost of the shoes, attorney's fees and costs, and other unspecified monies.

As a result of the above alleged incidents, plaintiffs filed an eight-count complaint against defendants Cairo, Sportmart, Civil Recovery Services and C.J. Sommer, alleging one federal claim under 42 U.S.C. § 1983 and seven state law claims. The section 1983 claim was against Cairo. On its own motion, the court (1) dismissed the section 1983 claim because Cairo was as a private, not state, actor and (21) dismissed the state law claims pursuant to 28 U.S.C. § 1367 without prejudice so that plaintiffs could pursue those claims in state court.

Instead of filing the action in state court, plaintiffs filed an amended complaint in this court. The amended complaint added two defendants, Officer Kazmierczak and the Village of Orland Park ("the Village"), and includes ten counts, three federal claims and seven state law claims. This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.¹

II. DISCUSSION

A. Standard for deciding Rule 12(b)(6) motion to dismiss

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F.Supp. 1283, 1285 (N.D.Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED.R.CIV.P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Even under the liberal notice pleading standard of the Federal Rules of Civil Procedure, however, a complaint must include either direct or inferential allegations respecting all material elements of the claims asserted. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). Bare legal conclusions attached to narrated facts will not suffice. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir.1985).

Finally, when ruling on a Rule 12(b)(6) motion to dismiss, the court should consider any additional facts alleged by plaintiff in either an affidavit submitted to the court or plaintiff's response brief if those facts are consistent with the complaint's allegations. See, e.g., Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir.1997) ("[A] plaintiff may supplement the complaint with factual narration in an affidavit or brief. If the extra assertions make out a claim, then the complaint stands."); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439 (7th Cir. 1994) ("This court has held that when reviewing Rule 12(b)(6) motions, we will consider new factual allegations raised for the first time on appeal provided they are consistent with the complaint."); Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir.1992) ("A plaintiff need not put all of the essential facts in the complaint. He may add them by affidavit or brief — even a brief on appeal."). However, the court should not consider newly alleged claims that are not raised in the complaint or facts that are not consistent with the complaint's allegations. See Albiero, 122 F.3d at 419; Milazzo v. O'Connell, 925 F.Supp. 1331, 1340 (N.D.Ill. 1996).

B. Federal question claims

Three counts of the complaint allege violations of federal law. Count I alleges a violation of 42 U.S.C. § 1983, while Counts IX and X allege violations of 42 U.S.C. § 1981. Because this court's subject matter jurisdiction over the case is based on those federal claims, the court will consider defendants' motions to dismiss those claims first.

1. Count I — section 1983 claim

Count I is a section 1983 claim on behalf of Sterling Jr. against defendants Officer Kazmierczak and the Village for violation of Sterling Jr.'s constitutional rights. Officer Kazmierczak and the Village have moved to dismiss Count I, arguing that it does not state a claim for relief.

To state a claim for relief under section 1983, the plaintiff must allege that (1) the defendants deprived the plaintiff of federally protected right and (2) the defendant acted under color of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996). Plaintiffs allege violations of various federal rights, each of which the court addresses below.

The complaint first alleges that Officer Kazmierczak violated Sterling Jr.'s Fourth Amendment rights by "falsely arresting, detaining and causing Plaintiff to be imprisoned without probable cause." (Compl. ¶ 22.) To state a section 1983 claim for arrest and imprisonment without probable cause, the plaintiff must allege that probable cause did not support the arrest. See Schertz v. Waupaca County, 875 F.2d 578, 581-82 (7th Cir.1989); Adrian v. Skokie Fed. Sav. & Loan Ass'n, 730 F.Supp. 189, 190 (N.D.Ill.1990).

Normally, when an arresting officer has "received his information from some person — normally the putative victim or an eye witness — who it seems reasonable to believe is telling the truth," the officer has probable cause to make the arrest. E.g., Grimm v. Churchill, 932 F.2d 674, 675 (7th Cir.1991); Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir.1986); Spiegel v. City of Chicago, 920 F.Supp. 891, 896 (N.D.Ill.1996). An officer is reasonably entitled to rely on information provided by a store security guard if there are no facts which would lead a reasonable officer to question the guard's veracity. See Gramenos, 797 F.2d at 439; Spiegel, 966 F.Supp. 684, 691.

In the case at bar, the complaint's allegation that Kazmierczak arrested plaintiff "without probable cause" is a legal conclusion that is not supported by the facts alleged. Although not an eye-witness to the alleged shoplifting, Officer Kazmierczak arrested Sterling Jr. in reliance on information provided by defendant Cairo, the store's security guard. Plaintiff has made no allegations which would show that Officer Kazmierczak had any reason to question the veracity of Cairo's information Thus, the complaint fails to allege that Officer Kazmierczak did not have probable cause to arrest Sterling Jr. See Gramenos, 797 F.2d at 439; Spiegel, 920 F.Supp. at 897-99.

Plaintiffs argue that Officer Kazmierczak, did not have probable cause to arrest because the arrest was made without conducting an investigation. However, the law in the Seventh Circuit is that Kazmierczak was entitled to rely on Cairo's information, absent any facts known to Kazmierczak that would lead him to question the veracity of the...