-4-
correct, but the complaint does not allege failure to intezvene,
and it does not allege that any particular police officer failed to
intervene as is required. Plaintiffs have simply sued the same
police officers who were sued in the Duran case without tying any
particular officer to the factual allegations. This is
insufficient to state § 1983 claims, and thus Counts I and II of

the complaint must be dismissed. We will allow

reasonable amount of discovery and an opportunity to amend Counts
I and II within 60 days.
B. Monell Claim

Count III asserts a Monell claim against the Town. The Town
argues that Count III should be dismissed because it alleges only
a single incident of unconstitutional conduct. To state a Monell
claim against the Town, the plaintiffs must allege either “(1) an
express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not
authorized by written Jaw or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with
the force of law; or (3) . . . that the constitutional injury was
caused by a person with final policymaking authority.” McTigue v.
City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995) (internal
citations and quotation marks omitted).

Plaintiffs make the second type of Monell claim, the existence

of widespread, permanent practices that constitute customs or



rule,” under which the period of limitations does not start until

the injured party knows or should know of his injury. See Schu

v. Pace Suburban Bus Div., 779 N.E.2d 259, 267-68 (Ill. App. Ct

2002). It is unclear from the complaint both when the evidence was
allegedly destroyed and when plaintiffs should have known about it,
but this is not a defect requiring dismissal of the spoliation
claim. Any information regarding the alleged spoliation is
uniquely within the Town's knowledge. Plaintiffs have adequately
alleged spoliation by stating which items they believe were lost or
destroyed. The questions of whether these items were destroyed
and, if so, when they were destroyed, are factual and will require
discovery. Therefore, the Town's motion to dismiss is denied as to
Count VI.
D. Respondeat Superior and Indemnification

Counts VII and VIII, which allege respondeat superior and
indemnification claims against the Town, are dependent upon the
success of plaintiffs’ claims against the individual defendants.

Because we have dismissed all of the claims against the individual

defendants, Counts VII and VIII must be dismissed. Dismissal of
the respondeat superior claim is with prejudice, because the state
law claims upon which it depends are being dismissed with prejudice

as time-barred.!

i
«
Fa
kn
Ea

ction 1983 claims cannot support respondeat superior liabiLity
mith, 220 F.3d 491, 495 (7th Cir, 2006).

Miller v.



Ve a yrespondeat superior claim (Count VII); and oan

indemnification claim (Count VIII). Against both the Town and the
individual defendants, plaintiffs bring a claim for violation of
the Illinois Hate Crime Act (Count IV) and a claim for spoliation
of evidence (Count VI). Plaintiffs seek compensatory and punitive
damages.

The individual defendants have moved to dismiss the complaint.
We have granted the Town’s motion to adopt the motion of the

individual defendants.?
DISCUSSION
A. Federal Claims Against the Individual Defendants
A plaintiff may bring a § 1983 civil rights action only
against those individuals personally responsible for a

constitutional deprivation. See Doyle v. Camelot Care Ctrs., Inc.

305 F,3d 603, 614 (7th Cir. 2002). The individual defe

Janls

contend that the complaint fails to state § 1993 claims against
them because it does not connect any of them to the violations.
The complaint merely alleges that “a Cicero police officer” or “the
Cicero police officer” took certain actions.

Plaintiffs point out in their response that the police
officers could be liable under § 1983 for their failure to

intervene to prevent a violation of plaintiffs’ rights. That is

¥ Acaordingly, the Town Filed its own reply brief, but not its own uelion
to dismiss or supporting memorandum.



policies of the Town’s police. They allege that the Town had
customs of failing to supervise, control, and discipline officers,
as well as permitting a “code of silence” regarding police

misconduct. These are sufficient allegations to withstand a motion

to dismiss. See Leatherman ov. Tarrant County Narcotic

Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)

{rejecting a heightened pleading standard for constitutional claims

against municipalities); McCormick v. City of Chicago, 230 F.3d

319, 323-25 (7th Cir. 2000) (same). While the allegations against

the Town come close to the level of “boilerplate vagueness,” see
Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 480 (7th Cir.
1997), Leatherman does not require more from plaintiffs at this
point.

Cc. State Law Tort Claims

1. Counts IV and V

Under the Illinois Tort Immunity Act, 745 ILCS 10/8-101, “[n]o
civil action may be commenced in any court against a local enlity
or any of its employees for any injury unless it is commenced
within one year from the date that the injury was received or the
cause of action accrued.” Plaintiffs’ claims for assault and
battery against the individual defendants (Count V) and for a hate
crime against all the defendants (Count IV) accrued on the date of

the incident--September 2, 2000. The complaint was filed on

September 3, 2002. Counts IV and V are time-barred.



-~3-
CONCLUSION

The individual defendants’ motion to dismiss the complaint is
granted. The Town of Cicero’s motion to dismiss is granted in part
and denied in part.

Counts I and II are dismissed. Plaintiffs are granted leave
to amend Counts I and II to specifically allege, if they can, which
police officers committed which acts in violation of their civil
rights. Plaintiffs may conduct appropriate discovery, and may file
an amended complaint by March 28, 2003.

The Town’s motion is denied as to Count III.

Counts IV and V are dismissed with prejudice,

Count VI is dismissed with prejudice to the extent it is

lieged against the individual defendants. The Town's motion is
denied as to Count VI.
Count VII is dismissed with prejudice.

Count VITI is dismissed without prejudice.

OATE: January 27, 2003

Joh . Grady, United States District! Judge



Minuwy Queer Fann 16077)

United States District Court, Northern District of Minois

Name of Assigned Judge ae)
: or Magistrate Judge John F. Grady
CASE NUMBER 02 C 6248 January 2%, 2003
CASE Gudino and Peralata v. Town of Cicero
TITLE
Lin the following boa (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintitf, and (b) stare briefly the
MOTION: nature of he motion being presented.]
DOCKET ENTRY:
qd) og Filed motion of [ use listing in “Mation” box above.]
(2) 7 Brict in support of motion due |
(3) o Answer brief to motion duc , Reply to answer bricf due
(4) nq Ruling/Hearing on |, set for ato.
6) oo Status hearing[held/continued to] [set for/re-set for] on setfor_ at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) u Trial[set for/re-set for] on at
(8) o jBench/Jury trial] [Hearing] held/continued to at .
(9) Go is distnissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CP4(m)  O General Rule 21 O FRCP41(a)(1) OO FRCP41(a)(2)
(10) a {Other docketentry] Defendants’ motions to dismiss [5-1] is granted in
é denied in part as follows: the individual defendan tion is grar
the Town of Cicero’s motion is granted in part and d doin p
allached for details. ENTER MEMORANDUM OPINION.
(ou) [For further detail see order (on reverse side of/attached to) the original minute order. |
No notices required, advised in open court. Document
Number
No notices required.
number of nates
Notices MAILED thy judye's staff. JAN 29 2003
Notified counsel by telephone, Gre donitt
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(Reserved for use by the Court)



-6-

Plaintiffs argue that if any of the individual defendants are
found to be acting outside the scope of their employment in
committing the alleged violations, they would not be considered
“employees” of the Town and thus the Tort Immunity Act’s statute of
limitations would not apply. However, plaintiffs themselves

repeatedly allege in the complaint that the individual defendants

were at “all” xelevant times acting in their capacity as officers
and employees of the Town. (Complaint, 9% 3-20, 63, 80, 84.)

2. Count VI

Count VI appears to be a state law claim for negligent.
spoliation against all of the defendants, To the extent it is
alleged against the individual defendants, it is insufficient to
state a claim. Two of the elements of a negligent spoliation claim

are the existence of a duty owed by the defendant to the plaintiff

and the breach of that duty. See Boyd v. Travelers Ins. Co., 652

N.8,2d 267, 270-72 (I11. 1995). While Count VI does allege that
the Town owed plaintiffs a duty to preserve evidence, it fails to
allege that the individual defendants owed plaintiffs that duty or
that they breached that duty. Accordingly, Count VI is dismissed
to the extent that it is brought against the individual defendants.

The Town does not specifically address the spoliation claim,
but argues that “all” of the state law claims are time-barred. A
cause of action for spoliation accrues when the evidence at issue

is destroyed, but this accrual date is modified by the “disco

ery



0276248.031-JCD January 27, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

EDUARDO GUDINO and JAN 2 9 2003

OBDULIA PERALTA,
Plaintiffs,
ve No. 02 € 6248

TOWN OF CICERO et al.,

Defendants.

MEMORANDUM OPINION

Before the court are defendants’ motions to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(h) (6)
For the reasons explained below, the individual defendants’ motion
is granted, and the Town of Cicero’s motion is granted in part and
denied in part.

BACKGROUND

This case is related to Duran v. Town of Cicero, 01 C 6858.*
The Duran case is a civil rights action by numerous plaintiffs
against the Town of Cicero and various Cicero police officers.
Duran arises out of an incident occurring on September 2, 2000, at
the home of plaintiffs Alejandro and Maria Duran, who were having

a party.

4 On October 18, 2002, the two cases were consolidated for all purp



-2-

The facts of this case, according to the complaint, are as
follows. Plaintiffs Eduardo Gudino and Obdulia Peralta lived
across the street from the Durans,* Cicero police officers arrived
at the Duran home and began shouting profanities at partygoers
Gudino had a video camera and began taping the incident. An
unidentified police officer punched Gudino in the stomach and took
his video camera and videotape.

Individuals witn Peralta yelled to the police officers “to
stop mistreating the people at the Duran party.” (Complaint, 7
32.) Some police officers came over to Peralta’s house and began
shouting profanities at her and others who were with her. The
police officers pushed and shoved Peralta and the others and
shouted at them to get inside. One unidentified police officer
pushed someone against Peralta, knocking her into the wall of her
house and injuring her. The officer also shouted ethnic slurs and
profanities at Peralta and the others.

Plaintiffs filed this § 1983 civil rights action on September
3, 2002. The complaint alleges the following against 17 Cicero
police officers only: excessive force (Count I); violation of
plaintiffs’ equal protection rights (Count II); and assault and
battery (Count V). The complaint alleges the following against the

Town of Cicero (the “Town”) only: a Monell policy claim (Count

af

It is unclear from the complaint whether plaintiffs lived in the s
house or in two different houses.