STATEMENT

ouRt

no
wore

12C0092 Robert K. Baker (2011-0218233) vs. City of Chicago, et al.

Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to
serve Defendants with process. The U.S. Marshal is directed to make all reasonable efforts to serve
Defendants. With respect to any former City of Chicago / Chicago Police Department employee who no
longer can be found at the work address provided by Plaintiff, the City of Chicago / Chicago Police
Department shall furnish the Marshal with Defendant’s last-known address. The information shall be used
only for purposes of effectuating service [or for proof of service, should a dispute arise] and any

| documentation of the address shall be retained only by the Marshal. Address information shall not be
maintained in the Court file, nor disclosed by the Marshal. Plaintiff is to provide the U.S. Marshals Service
with a copy of the complaint and a proper form for request of waiver pursuant to Federal Rule of Civil
Procedure 4(d)(1). The U.S. Marshals Service is requested to mail the complaint and appropriate papers for
waiver of service by first-class mail to the named Defendant pursuant to Rule 4(d)(1)(G).

Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of
the Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete Judge’s copy,
including any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any court
filing to Defendant [or to defense counsel, once an attorney has entered an appearance on behalf of
defendant]. Every document filed with the Court must include a certificate of service stating to whom exact
copies were mailed and the date of mailing. Any paper that is sent directly to the Judge or that otherwise fails
to comply with these instructions may be disregarded by the Court or returned to Plaintiff.

Page 4 of 4



|, _ Order Form (01/2005)

United States District Court, Northern District of Illinois SH
f Assis juds Sitting Judge if Othe
Nay, Magitate Judge Charles R. Norgle than Assigned Judge
CASE NUMBER 12 C 0092 DATE | (7-30 _/2_
CASE Robert K. Baker (2011-0218233) vs. City of Chicago, et al.
TITLE

Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. The Coufauthorizes and
orders Cook County Jail officials to deduct $9.00 from the plaintiff's account, and to contifue making
monthly deductions in accordance with this order. The clerk shall send a copy of this order to the Supervisor
of Inmate Trust Fund Accounts, Cook County Dept. of Corrections Administrative Office, Division V, 2700
S. California, Chicago, Illinois 60608. The clerk shall issue summonses for service on all defendants, and
send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents. The United
States Marshals Service is appointed to serve Defendants. Plaintiff may only proceed with individual
capacity claims against defendants Browen and Portis and an indemnification claim against the City of
Chicago. His official capacity and conspiracy claims against the officer defendants, and the failure to train
Monell claim against the City are dismissed.

| For further details see text below.] Docketing to mail notices.

STATEMENT

Pro se plaintiff Robert K. Baker, currently a detainee at the Cook County Jail, has brought a civil
rights complaint pursuant to 42 U.S.C. § 1983. Pending before the Court are Baker’s motion for leave to
proceed in forma pauperis (Dkt. No. 3), and complaint for an initial review pursuant to 28 U.S.C. § 1915A.
(Dkt. No. 1).

The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. Pursuant to 28
U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $9.00. The supervisor of inmate
trust accounts at the Cook County Jail is authorized and ordered to collect, when funds exist, the partial filing
fee from the plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the
initial partial filing fee, the trust fund officer at the plaintiff's place of confinement is directed to collect
monthly payments from the plaintiff's trust fund account in an amount equal to 20% of the preceding month’s
income credited to the account. Monthly payments collected from the plaintiff's trust fund account shall be
forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee
is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago,
Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly identify the plaintiff's name and the case
number assigned to this action. The Cook County inmate trust account office shall notify transferee
authorities of any outstanding balance in the event the plaintiff is transferred from the Jail to another
correctional facility.

Turning to the initial review of the complaint, plaintiff alleges that he was walking on 116th Street in

12C0092 Robert K. Baker (2011-0218233) vs. City of Chicago, et al. Page 1 of 4



STATEMENT

Chicago when he saw Chicago Police Officer defendants Brown and Portis speak to a third individual.
Plaintiff turned to watch the situation and was told by the officer defendants to mind his own business and
walk away. Plaintiff did not comply and so the officers told him to come over to them.

Officer Portis allegedly hit plaintiff in the face and he was placed on the hood of the police officer’s
car. (The complaint does not state whether Portis and/or Brown placed him on the car’s hood). The officer
defendants then called a non defendant Officer Riggenbach #231 and told him about the situation. The
defendants, following Riggnebach’s instructions, looked up plaintiffs record on the police car’s onboard
computer. The officer defendants determined that plaintiff was on supervised release for unlawful use of a
weapon by a felon, 720 ILCS 5/24-1.1. Riggenbach allegedly conspired with the officer defendants by
instructing them to bring plaintiff in and charge him with an unrelated crime to cover up the officer’s
misconduct.

Plaintiff has brought suit against Portis, Brown and the City of Chicago, but he has not named
Riggenbach as a defendant in either the complaint’s caption or section for listing defendants. Plaintiff may
proceed against Portis and Brown in their individual capacity for excessive force regarding both Portis
allegedly punching plaintiff, and his placement on the car hood. He has claims against both the officer who
used inappropriate force under the circumstances, Common v. City of Chicago, 661 F.3d 940, 943 (7th Cir.

2011) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)), and against an officer who had a realistic
opportunity to stop the alleged abuse but failed to intervene. Lewis v. Downey, 581 F.3d 467, 472 (7th Cir.
2009) (citations omitted).

Additionally, plaintiff may proceed with a false arrest claim because he alleges that there was no cause
to support his arrest. Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056-57 (7th Cir. 2011). The Court will
leave it to defendants to investigate the alleged incident further to determine if there was cause to support the
arrest based on any appropriate charge. Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004); Sroga v. Weiglen,
649 F.3d 604, 608 (7th Cir. 2011). Finally, plaintiff may also proceed with a state law claim of malicious
prosecution for filing of an alleged false charge. Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir.
2011); Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011).

Plaintiff's also alleges that the defendant officers and Riggenbach entered into a conspiracy to deny
him his rights. As mentioned before, Riggenbach has not been named as a defendant. In addition, plaintiff
cannot state a claim for a conspiracy.

First, a conspiracy claim requires that private actors are involved, there cannot be a conspiracy solely
among state actors. Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009); Redwood v. Dobson, 476 F.3d
462, 466 (7th Cir. 2007). Here the only involved individuals are state actor police officers.

Even if plaintiff could survive this deficiency, he still cannot allege a conspiracy based on the
information presented in the complaint. Title 42 U.S.C. § 1985(3) prohibits a conspiracy between private
individuals and state officials to deny a person equal protection under the law for racial or other class-based
discriminatory animus. Fairley, 578 F.3d at 526 (citing Dennis v. Sparks, 449 U.S. 24 (1980); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971); Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002)). To state a
claim, plaintiff must plausibly allege: “(1) a conspiracy; (2) a purpose of depriving, either directly or
indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and
immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to his person or

12C0092 Robert K. Baker (2011-0218233) vs. City of Chicago, et al. Page 2 of 4



STATEMENT

property or a deprivation of any right or privilege of a citizen of the United States.” Keri v. Ba. of Tr. of
Purdue Univ., 458 F.3d 620, 642 (7th Cir. 2006) (citing United Bhd. of Carpenters & Joiners of Am. v. Scott,
463 U.S. 825, 828-29 (1983); Quinones v. Szorc, 771 F.2d 289, 291 n.1 (7th Cir. 1985)). There is no
indication that the actions were taken to deprive him of equal protection of the law. Smith, 550 F.3d at 617;
Redwood, 476 F.3d at 466. The conspiracy claim is dismissed.

Plaintiff also sues the City of Chicago and the officers in their official capacity. The official capacity
suit is redundant because naming an officer in his official capacity is, in actuality, naming the City. Minix v.
Canarecci, 597 F.3d 824, 830 (7th Cir. 2010). Plaintiff claims that Chicago violated his rights by failing to
train the officer defendants. He also seeks indemnification from Chicago pursuant 745 ILCS 10/9-102.

For a failure to train claim “to establish municipal liability under § 1983[,] . . . a plaintiff must present
sufficient evidence to show that the constitutional violation resulted from a municipal policy, custom or
practice.” Waters v. City of Chicago, 580 F.3d 575, 580 (7th Cir. 2009) (citing Monell v. Dep't of Soc. Servs.
of City of New York, 436 U.S. 658, 694 (1978)). “To establish an official policy or custom, a plaintiff must
show that his constitutional injury was caused by (1) the enforcement of an express policy of the
[municipality], (2) a widespread practice that is so permanent and well settled as to constitute a custom or
usage with the force of law, or (3) a person with final policymaking authority.” Wragg v. Vill. of Thornton,
604 F.3d 464, 467-68 (7th Cir. 2007) (citing Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001);
McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000)).

The Court must review the complaint under the widespread practice ground because plaintiff has not
plausibly alleged that he suffered a constitutional violation resulting from an express policy or the decision of
a final policymaker. A municipality may only be liable for the widespread practice of failing to train its
employees when this act “amount[s] to [a] ‘deliberate indifference to the rights of person with whom the
untrained employee come[s] into contact.” Connick v. Thompson, 131 S. Ct. 1350, 1359-60 (2011) (quoting
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). The deliberate indifference requirement is a
“stringent standard of fault” requiring that the policymakers deliberately ignore repeated constitutional
violations by the untrained employees or a “patently obvious” event occurred demonstrating a lack of
necessary training. Connick, 131 S. Ct. at 1360-61.

Plaintiff fails to make any allegations that plausibly demonstrate municipal liability for any alleged
failure to train the arresting officers. He only mentions his (apparently) single random event without
demonstrating how this is part of a custom or practice by the City of Chicago sufficient to establish a Monell
claim. In fact, he simply alleges that there was a failure to train the officer defendants without providing any
type of plausible support for the claim. The “‘formulaic recitation of the elements of a cause of action will
not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Tamburo v.
Dworkin, 601 F.3d 693, 699 (7th Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). Plaintiff has failed to do this and so his failure to train / Monell claim is dismissed. However,
plaintiff may proceed with a state law indemnification claim. 745 ILCS 10/9-102; Yang v. City of Chicago,
137 F.3d 522 (7th Cir. 1998); Wilson v. City of Chicago, 120 F.3d 681 (7th Cir. 1997)

The clerk shall issue summonses for service on all defendants, and send Plaintiff a Magistrate Judge
Consent Form and Instructions for Submitting Documents. The United States Marshals Service is appointed
to serve Defendants. Plaintiff may only proceed with individual capacity claims against defendants Browen
and Portis and an indemnification claim against the City of Chicago. His official capacity and conspiracy
claims against the officer defendants, and the failure to train Monell claim against the City are dismissed.

12C0092 Robert K. Baker (2011-0218233) vs. City of Chicago, et al. Page 3 of 4