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Administrator of the Estate of Mersaides McCauley, Plaintiff, v. City of Chicago, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )
09 C 2604 Judge St. Eve Magistrate Judge Mason
Plaintiff’s Response to Defendants’ Motions to Dismiss Plaintiff, Brewster McCauley, as Special Administrator of the Estate of Mersaides McCauley, by and through his attorneys, DOLAN LAW OFFICES, PC, submits the following in response to Defendants’ Motions to Dismiss the Second Amended Complaint: INTRODUCTION I. Nature of the Action This action stems from the death on April 6, 2008 of Plaintiff’s Decedent, Mersaides McCauley. Second Amended Complaint (“ S.A.C.”) ¶¶28-29. McCauley was shot and killed by her ex-boyfriend, Glenford J. Martinez, a convicted murderer on mandatory supervised release against whom McCauley had an Order of Protection issued after Martinez committed a battery on McCauley. S.A.C. ¶¶35, 37. In addition to a claim against the Estate of Glenford J. Martinez, the Second Amended Complaint contains claims against the City of Chicago (“City”) as well as the Illinois Department of Corrections (“IDOC”), Roger E. Walker, Jr., the Director of the Illinois Department of Corrections, Various Unknown Illinois Department of Corrections Officers and Parole Officer FNU Winfield (collectively “IDOC Defendants”). Plaintiff alleges
is now before this Court on the IDOC Defendants’ Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) and the City’s Motion to Dismiss pursuant to Rule 12(b)(6). 2009. 2009.A.C. Plaintiff filed this action in the Circuit Court of Cook County. S. S. 2008. filed on April 13.C. Martinez was sentenced to terms of imprisonment of 28 years and 14 years.A. Procedural Posture On February 13. 2 . ¶10. IDOC released Defendant Martinez from his incarceration to mandatory supervised release. Defendant Martinez’s discharge date from his IDOC mandatory supervised release was set for May 25.C. S.A. S. ¶15. On May 25.C. Facts In 1992. ¶12.A.C. Plaintiff’s Second Amended Complaint. II. Upon his convictions for murder and attempted murder. ¶14.1 The domestic violence incident was set to be heard in state court on April 17. S. ¶22. to be served concurrently.claims of battery against the Martinez Estate and violations of the Illinois Domestic Violence Act as well as the Equal Protection and Due Process Clauses against the City and IDOC Defendants. Martinez shot two individuals in a drug-related incident and was subsequently found guilty of murder and attempted murder. II.C.A.A. On November 3. Martinez choked McCauley to the point of unconsciousness. 2006. 2007. with IDOC. 2009. S. ¶¶9-10. ¶11. 1 Law enforcement authorities did not check Martinez’s background nor was he charged for violating his parole for the domestic battery arrest or held without bail pending his new case.A. 2009. Chicago police officers arrested Martinez for domestic battery/bodily harm that same day. S.C. The City of Chicago removed the action to the United States District Court for the Northern District of Illinois on April 29.
and all reasonable inferences are drawn in plaintiff’s favor. In determining whether to dismiss for lack of jurisdiction. an ex-boyfriend of Mersaides McCauley. 2009).3d 904. Marshall-Mosby v. It further alleges that Martinez. Astrue. The Second Amended Complaint alleges that the Cook County State’s Attorney’s Office 3 .STANDARD A motion to dismiss may challenge the court’s subject matter jurisdiction. 398 F. V. 2005).3d at 656-57. 907 (7th Cir. S. Claims Under the Illinois Domestic Violence Act. are subject to dismissal because they are factually insufficient. All well-pleaded allegations are accepted as true. 12(b)(1). the court may look beyond the allegations of the complaint to determine whether jurisdiction exists. ARGUMENT I. 205 F. claims brought under the Illinois Domestic Violence Act and Illinois Survival Act. His mandatory supervised release discharge date was set for May 25. Corporate Receivables. See Fed. was released to IDOC mandatory supervised release. Are Factually Sufficient The IDOC Defendants contend that Counts IV.A. R.C.A.3d 323. 326 (7th Cir. 656 (7th Cir. 2007. S. S. Civ.3d 651. The Second Amended Complaint alleges that Martinez. 536 F. ¶15. In reviewing a complaint. 2009. P. Counts IV. ¶¶9-11. after incarceration for murder and attempted murder. V.C.A. Budz. Evers v.C. ¶14. 536 F. 2000). Evers. all factual allegations are taken as true and all reasonable inference drawn in the plaintiff’s favor. VI and VII.C. S. ¶12. A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to relief. VI and VII. Martinez was arrested for the domestic violence and McCauley obtained an Order of Protection. choked her to the point of unconsciousness on November 3.A. Brown v.
2008. the existence of the pending Order of Protection. dated April 15. II. the allegation is clearly not conclusory. 21. the IDOC Defendants confirmed the existence of its parole agent’s knowledge of Martinez’s domestic battery arrest as reported in a Chicago Tribune article. an IDOC investigation of Martinez given his mandatory supervised release status.contacted IDOC on December 18. Indeed. Thus. The information concerning IDOC’s knowledge is within the hands of the IDOC Defendants and discovery will need to be conducted in order to ascertain the extent of that knowledge. The IDOC Defendants contend that the allegations concerning IDOC’s knowledge of repeated violations of the Order of Protection by Martinez are conclusory as well. The Doctrine of Sovereign Immunity Does Not Bar this Suit Against the IDOC Defendants The IDOC Defendants contend that this suit is barred by the doctrine of sovereign immunity.” 745 ILCS 5/1 (West 2006). Under the State Lawsuit Immunity Act.C. Thus. The IDOC Defendants contend that the allegation that Defendants “knew or should have known of Martinez’s arrest for domestic violence on November 3. Generally. 2008 and notified IDOC of the domestic violence battery charge against Martinez. The “knew or should have known” allegation is based in the allegations that the Cook County State’s Attorney’s Office contacted IDOC regarding Martinez. ¶19. “the State of Illinois shall not be made a defendant or party in any court. IDOC should have known. That contact should have triggered. S. and the continued contact by Defendant Martinez” is conclusory. Plaintiff would respectfully request that discovery be allowed to proceed on this matter and the allegations allowed to stand at this time. If IDOC did not know about Martinez’s criminal activity while on mandatory supervised release. at the very least. an agency of the State may not be a defendant in a circuit court action because State agencies are considered to be arms 4 . 2007.A. 2007 and January 9.
the proper inquiry is into the source of the duty the employee is charged with breaching. 159. Lao. In Currie. The Illinois Supreme Court has instructed that when determining whether a tort claim arising out of the alleged on-the-job negligence of a state employee is in reality a claim against the state. 148 Ill. Currie.E. Department of Human Rights. is charged with breaching a duty that arose independently of his State employment. a suit against him will not be shielded by sovereign immunity. 3d 751. Id. the Illinois Supreme Court found that sovereign immunity did not bar suit by truck driver against a state trooper arising from a traffic collision. 148 Ill. substance takes precedence over form. 756. App.E.2d 649.2d 977.of the State itself.” Rockford. where an employee of the State. Rockford Memorial Hospital v. 272 Ill. the rule is not absolute: The determination that a claim is one against the State does not depend upon the State agency being named as a party. 1995). 272 Ill. although acting within the scope of his employment. sovereign immunity will bar maintenance of the action in circuit court.2d 151. Conversely. Rather it was the same duty of care owed by any driver to the general public. 654 (2d Dist. where the employee is charged with breaching a duty imposed on him independently of his State employment. In other words. App. 980 (1992). The Illinois Supreme Court explained the source-of-duty analysis as follows: Where the charged act of negligence arose out of the State employee’s breach of a duty that is imposed on him solely by virtue of his State employment. In determining whether sovereign immunity applies to a particular case. Currie v. which is immune from suit in the circuit court. because the trooper was not charged with breach of a duty imposed on him solely by virtue of his state employment. 2d at 259. 5 . 592 N. “However. sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court. 3d at 757 (internal citations omitted). (internal citations omitted). The determination depends instead on the issues involved and the relief sought. 651 N.
. neglect or exploitation” and to refrain from willful and wanton conduct “in rendering emergency assistance or otherwise enforcing” the Act.E.2d 1131 (2d Dist. while noting that the defendants certainly would not have encountered the decedent but for their employment. Watson v.2d at 333. is illustrative of the independent duty finding. the Illinois Domestic Violence Act imposes a duty on all law enforcement officers “to use all reasonable means to prevent further abuse. Regarding Plaintiff’s state law claims. Id. The supreme court then proceeded to determine if the “relief sought” would subject the state to liability. 3d 1048. Jinkins v. App. 209 Ill. 321. Lee. owed a duty to Mersaides McCauley under the federal Constitution to refrain from violating McCauley’s equal protection and due process rights. 807 N.g.E. Madden v. 386 N.2d 411. a psychiatrist and a counselor. in their law enforcement capacities. e. Rather. the court found that the source of the defendants’ duty was their status as mental health professionals. The duty owed to Mersaides McCauley was derived from the defendants’ status as law 6 . The court. See. 56 Ill. The defendants argued that they owed no duty to the decedent “but for” their state employment. 412 (2004). In Jinkins. The court determined it would not as a judgment would not operate to control the state. the duty owed to Mersaides McCauley was not dependent on the state employment of the defendants. 209 Ill.E. 3d 997. 372 N. St. Kuehn. Id. Jinkins and other Illinois cases involving state-employed health professionals are analogous to the case at bar. -60/305. the estate of a man who committed suicide after discharge from a state mental health center brought suit against two of the center’s employees. 1978). Likewise. Anne’s Hospital. rejected that the duty owed decedent was derived solely from their state employment. the IDOC Defendants. See 750 ILCS 60/304.Applying the Currie analysis to the case at bar. Jinkins. App. 68 Ill.2d 320.2d 885 (1st Dist. 1979).
” 745 ILCS 10/4-102 (West 2002). relying on the Illinois Supreme Court’s recent decision in Lacey v. 324. The Lacey analysis was intensely fact-specific and does not preclude a claim under Section 305. In Calloway.2d 349. the statutory law Section 305 Section 4-102 provides: “[n]either a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or.” 168 Ill.2d 312. the Illinois Supreme Court found that Section 305 created a “specially protected class of individuals to whom statutorily mandated duties are owed. with the absolute immunities of Section 4-1022 and Section 4-1073 of the Tort Immunity Act. unless the act is a result of willful or wanton misconduct. provides: Any act of omission or commission by any law enforcement officer acting in good faith in rendering emergency assistance or otherwise enforcing this Act shall not impose civil liability upon the law enforcement officer or his or her supervisor or employer. 168 Ill. the claims against the IDOC Defendants are not barred by the doctrine of sovereign immunity. 2 7 . III. 659 N. 750 ILCS 60/305. The Second Amended Complaint Sets Forth Cognizable Claims Under the Illinois Domestic Violence Act The City and the IDOC Defendants contend that Plaintiff has not stated cognizable claims under the Illinois Domestic Violence Act. for failure to provide adequate police protection or service. if police protection service is provided.2d at 324.” 745 ILCS 10/4-107 (West 2002).2d 18 (2009). and failure to identify or apprehend criminals. Thus.enforcement officers and is wholly independent of their state employment. Kinkelaar.E.E. 1328 (1995). failure to prevent the commission of crimes. The Illinois Supreme Court stated that an injured person setting forth a claim under the Act must show: “that he or she is a person in need of protection under the Act. in relevant part: “[n]either a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest. 3 Section 4-107 provides.2d 1322. failure to detect or solve crimes. Village of Palatine. 232 Ill. 904 N. Lacey clarified the interplay of the limited immunity of Section 305 of the Domestic Violence Act recognized in Calloway v.
after Mary Lacey and her mother were murdered by Lacey’s ex-boyfriend.C. See Id. S. ¶3. S. the Village of Glenview. 2004. ¶¶16. and such conduct proximately caused [the] plaintiff’s injuries.enforcement duties owed to him or her were breached by willful and wanton acts or omissions of law enforcement officers.A. 232 Ill. Martinez’s domestic violence battery charge was set for trial on April 17. On December 13. 2004 – nearly two months before the murder. At all times. The supreme court found that there was facts supporting “otherwise enforcing” and reversed the decision of the appellate court. Of particular import in the Lacey court’s finding was the fact that the defendants’ investigation of the murder-for-hire plot had closed on October 22. Lacey. the Village of Palatine. In Lacey. thus affirming the circuit court’s dismissal of the complaint.A. Zirko murdered Lacey and her mother. These factual allegations distinguish Plaintiff’s Second Amended 8 . ¶¶11-12.A.A.” Id. Steven Zirko. Id. The suit alleged that Palatine and Glenview police officers assured Lacey they would provide protection after learning Zirko had schemed to kill Lacey.2d at 368. It was this fact that foreclosed a finding of “otherwise enforcing. Martinez was still on mandatory supervised release from the Illinois Department of Corrections. S. 2008. The Illinois Supreme Court opined that the limited immunity analysis turned on whether the police officers were “otherwise enforcing the Act” during the time Lacey requested police protection because there were no allegations that defendants were rendering “emergency assistance.” In the instant case. ¶22. and several police officers. It further alleges she obtained an Order of Protection which was in force at the time of the shooting.C. at 368.C. 2007. Additionally. the Second Amended Complaint alleges that Martinez physically assaulted McCauley on November 3.C. at 361. 18. the family of Mary Lacey sued the City of Chicago. S.” Id.
Walker.Complaint from Lacey where the decedent’s formal relationship with defendant law enforcement entities had ended before the murder. Jr. XIV. Const. Alternatively. Jr.” U. The Second Amended Complaint Sets Forth Cognizable Equal Protections Claims Defendants contend that the Second Amended Complaint fails to set forth cognizable equal protection claims. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The legislature gave the courts clear guidance in construing the Domestic Violence statute. Plaintiff Requests Leave to Amend With Respect to the Section 1983 Claims Against the IDOC Defendants Plaintiff respectfully requests leave to file an amended complaint. “This Act shall be liberally construed and applied to promote its underlying purpose. which Plaintiff alleges caused the death of Mersaides McCauley. A liberal construction of the facts alleged should result in recognition of cognizable Domestic Violence Act claims. The ongoing relationship between McCauley and the defendant law enforcement officers as alleged in the Second Amended Complaint supports a finding that the defendants were “otherwise enforcing the Act. “To establish a prima facie case of discrimination under the equal 9 .’s personal involvement in the events occurring during Martinez’s supervised release. withdrawing Counts X and XI.. the Equal Protection and Due Process claims against the Illinois Department of Corrections.” 750 ILCS 60/102. Jr. and withdrawing the “official capacity” allegations against Roger E.S. contained in Counts XII and XIII. Walker. Plaintiff requests leave to amend the complaint upon the completion of discovery regarding the defendants’ action/inaction with respect to Mersaides McCauley and Glenford J. Plaintiff seeks leave to engage in limited discovery regarding Roger E. Regarding Defendants’ attack on the section 1983 claim against Roger E. Martinez. V. IV. Walker. amend.
Defendant has improperly framed the analysis. Suspect classification is found where a group has experienced a “history of purposeful unequal treatment” or “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Defendants contend specifically that the equal protection claims fail because they involve neither a protected class nor a fundamental right.” Massachussetts Board of Retirement v.” because of her membership in a class – a victim of domestic violence.3d at 916. Budz. plaintiff is required to show that [s]he is a member of a protected class. The proper inquiry is whether Plaintiff has alleged that she was treated differently than other citizens.S.protection clause. See Brown. and that [s]he was treated differently from members of the unprotected class. Thus.” Brown v. 313 (1976).C. that [s]he is otherwise similarly situated to members of the unprotected class. The IDOC Defendants also contend that McCauley’s claim fails because she cannot allege that she was treated differently from other victims of domestic violence. i. 307. 2005). recognition of domestic violence victims as a suspect class would enable them to pursue equal protection claims against law enforcement that are necessary to ensure that law enforcement can be held accountable. Plaintiff contends that Mersaides McCauley. Plaintiff posits that law enforcement response to domestic violence cases has historically been deficient. a female domestic violence victim. this 10 . The Second Amended Complaint alleges that the City “has an unwritten custom..” S. 398 F. Surely. “similarly situated individuals. practice and policy to afford lesser protection or none at all to victims of domestic violence. 916 (7th Cir. is a member of a suspect class. ¶121.3d 904.e. Dismissal should not be granted but rather discovery on this issue of the defendants’ systematic different treatment of domestic violence crimes as opposed to other similar assault crimes should be allowed to proceed. 398 F.A. Murgia. 427 U.
189 (1989). 14.C.3d 1169. S. 518 (7th Cir. ¶22.A.allegation satisfies the pleading requirement of an equal protection claim. or property without due process of law. the Second Amended Complaint alleges that the CPD never arrested Martinez for violating the Order of Protection 11 . 153 F.S. Winnebago County Dep’t of Social Services. e. VI. 22. A defendant may owe constitutional obligations to particular citizens because of a “special relationship. 3) an Order of Protection was issued against Martinez. The Second Amended Complaint alleges that between his release and the shooting: 1) Martinez was on mandatory supervised release status. 1998) (holding that an allegation as simple as “I was turned down a job because of my race” sufficiently pled race discrimination in violation of the Equal Protection Clause). City of Green Bay. S. 1174 (7th Cir. Regarding the City. Martinez was released on bond after his arrest while awaiting trial on the domestic battery charge. the IDOC Defendants did not issue an arrest warrant for Martinez for violation of his mandatory supervised release. 489 U. 2) Martinez physically attacked Mersaides McCauley.” Estate of Stevens v. See. Despite these factors. and 4) the domestic violence battery charge was pending against McCauley.A.S. ¶¶11-12. liberty.g.. 105 F. Bennett v. 18.” See DeShaney.C. 489 U.3d 516. an exception. The Second Amended Complaint Sets Forth Cognizable Due Process Claims Defendants also contend that McCauley’s due process claims are not cognizable. The Due Process Clause of the Fourteenth Amendment provides that “no State shall deprive any person of life. however. There is. relying on DeShaney v. Such a “special relationship” implicating the Due Process Clause is where the state “creates a dangerous situation or renders citizens more vulnerable to danger. Schmidt.” The Supreme Court in DeShaney found that the clause does not obligate the state to protect the general public from harm where the actor is a private citizen. at 195. 1997).
and therefore.C. 436 U.S. although not authorized by official law or policy. its knowledge of his violations. a plaintiff must show that a government’s policy or custom caused a violation of constitutional rights.A.” S. and customs. Section 1983 liability may be found against a municipality if. Department of Social Services. practice and policy to afford lesser protection or none at all to victims of domestic violence. The Second Amended Complaint alleges that “Defendant City of Chicago is responsible for the implementation of policies. The Second Amended Complaint further alleges that “Defendant has an unwritten custom. at 690. VII.A. 658 (1978). 436 U. As such. practices. is the moving force for the acts and omissions challenged by this suit.A. S.” S.C. these allegations satisfy the pleading requirements for a section 1983 claim under the “moving force” theory recognized in Monell. was the moving force behind the plaintiff's constitutional injury. ¶121. See Monell v. While the City may dispute the existence of such a policy. Thus. or (2) an individual with final policy-making authority for the municipality (on the subject in question) caused the constitutional deprivation. 12 .C. Monell. In order to hold a municipality liable under section 1983. The Second Amended Complaint Alleges Municipal Liability Against the City The City contends that Plaintiff has failed to adequately state a section 1983 claim under a Monell theory of liability.despite.” Monell. ¶120. Plaintiff sufficiently sets forth due process violation claims. at 694. ¶25. 436 U.S. These allegations implicate a finding that Defendants’ alleged failures to protect McCauley (in light of their knowledge of Martinez) rendered McCauley more vulnerable to the danger that ultimately befell her. procedures. among other things: “(1) it has a permanent and well-settled municipal custom or practice that. upon information and belief.S. Defendant City’s motion to dismiss on this basis should be denied.
CONCLUSION For the foregoing reasons. Brewster McCauley. 10 South LaSalle Street Suite 3712 Chicago. Respectfully submitted.D. Dolan By: __________________________ An Attorney for the Estate of Mersaides McCauley DOLAN LAW OFFICES. /s/ Martin A. P. 43525 13 . as Special Administrator of the Estate of Mersaides McCauley. respectfully requests that this Court deny Defendants’ Motion to Dismiss and grant leave to amend as so stated. Plaintiff. Illinois 60603 (312) 676-7600 (312) 849-2030 (Facsimile) Firm I.C.
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