convictions are significant obstacles to his ultimate proof, the court agrees with plaintiff that the facts
do not foreclose a claim of excessive force.

Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its
complaint with leave of court, and leave to amend should be “freely given when justice so requires.”
Fed. R. Civ. P. 15(a). The court “need not allow an amendment when there is undue delay, dilatory
motive, undue prejudice to the opposing party, or when the amendment would be futile.” Bethany
Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860-61 (7" Cir. 2001), citing Foman v. Davis, 371 U.S.
178, 182 (1962). However, delay is not a sufficient basis for denial of leave to amend unless the
delay has caused the opposing party undue prejudice. Textor v. Board of Regents, 711 F.2d 1387,
1391 (7" Cir. 1983). “Generally, ‘the grant of leave to amend. . . is within the discretion of the trial
court.” Sanders v. Venture Stores, Inc., 56 F.34.771, 773 (7" Cir, 1995), quoting Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971).

Since Weber has not responded to Smith’s request for leave to file a third amended
complaint, no undue prejudice to Weber is apparent from the delay, and Rule 15(a) requires that

leave to amend be freely given, the court grants Smith leave to file a third amended complaint.

CONCLUSION
For the reasons stated above, the court GRANTS Weber’s motion to dismiss Smith’s second
amended complaint [#21] WITHOUT PREJUDICE to Smith’s filing a third amended complaint in
accordance with this opinion by November 8, 2004. Weber is given until November 29, 2004 to
plead or otherwise respond to the third amended complaint. Plaintiff is given until November 8,

2004, to show cause why the claims against the City of Chicago should not be dismissed pursuant



appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of
its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v.
Nat’l Juvenile Det. Ass’n, 187 F.3d 690, 695 (7" Cir. 1999). In ruling on the motion, the court
accepts as true all well pleaded facts alleged in the complaint, and it draws all reasonable inferences
from those facts in favor of the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7 Cir.
1999); Zemke v. City of Chicago, 100 F.3d 511, 513 (7" Cir. 1996).
DISCUSSION

Weber argues that Smith has failed to state a claim of excessive force under the Fourth
Amendment in Count I because the allegations in Smith’s second amended complaint, that he was
unarmed and did not pose a threat of death or grievous bodily injury to anyone and that Weber lacked
probable cause (P1. Second Amended Complaint at {{] 18-21), are contrary to the convictions and
therefore are under Heck doctrine an impermissible attack on his convictions. In response, Smith
acknowledges the impropriety of such allegations in light of Heck and requests that the court allow
him leave to file a third amended complaint in accordance with Heck.* Smith contends that whether
Weber used reasonable or unreasonable force on January 20, 2002 is still a proper issue before this
court, See Robinson v. Doe, 272 F.3d 921 at 923 (7" Cir. 2001)(“Police might well use excessive
force in effecting a perfectly lawful arrest. And so a claim of excessive force in making an arrest
does not require overturning the plaintiff's conviction even though the conviction was based in part

on a determination that the arrest itself was lawful.”)(citations omitted), Although plaintiff's

4gmith also has conceded that he improperly relied upon the Fourteenth Amendment as the basis for his
claim of excessive force against Weber in Count I. See Graham v. Connor, 490 U.S. 386 at 395, 109 S. Ct. 1865,
104 L. Ed. 2d 443 (1989)(“all claims that law enforcement officers have used excessive force - - deadly or not - - in
the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth
Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach.”)(emphasis
in original).



to Rule 4(m), Fed. R. Civ. P. This case will be called for a status hearing on November 8, 2004 at
9:30.
enter: Veer MAegtren—

WAN HUMPHREY MEFKOW
United States District Judge

Dated: October 27, 2004



der Form (06/97)
4

United States District Court, Northern District of Mlinois

Name of Assigned Judge Joan H. Lefkow Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 8406 DATE 10/27/2004
CASE Smith vs. Weber, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) im Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due____.
4) a Ruling/Hearing on set for at
(5) a Status hearing{held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) oO Trial[set for/re-set for] on at
(8) Q [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) )FRCP41(a)(2).
ao) [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order, defendant Weber’s motion to dismiss second amended complaint [#21] is
| granted without prejudice to plaintiff filing a third amended complaint in accordance with this memorandum and
opinion by 11/8/04. Defendant Weber is given until 11/29/04 to answer or otherwise respond to the third
amended complaint. Plaintiff is given until 11/8/04 to show cause why the claims against the City of Chicago
should not be dismissed pursuant to Rule 4(m). Fed.R.Civ.P. Status hearing is set for 11/8/04 at 9:30 a.m.

qi) @

[For further detail see order attached to the original minute order.]

No notices required, advised in open court,
3

No noti ired.
jotices requ number of notices piriea

Notified counsel by telephone. § ct 4 9

Hats do

2004

oY | Notices mailed by judge’s staff.

Docketing to mail notices.

Mail AO 450 form.

if Apuby initials

Copy to judge/magistrate judge. ra

4) 1072772004
dave msiled satice
courtroom
MD deputy's Mp
initials
Date/time received in
central Clerk's Office exiting deputy inicls



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
TERRANCE SMITH, )
Plaintiff, )
vs. Case No. 02 C 8406
and the CITY OF CHICAGO, DOCKETED
Defendants. } oct 29 zovs

MEMORANDUM OPINION AND ORDER

In this case brought under 42 U.S.C. § 1983, defendant Chicago Police Detective Matthew
Weber (“Weber”) has moved to dismiss the six-count second amended complaint filed by plaintiff,
Terrance Smith (“Smith”). In response to Weber’s arguments, Smith has conceded that his claims
in Count II (arrest without probable cause in violation of the Fourth and Fourteenth Amendments),
Count IV (respondeat superior liability on the part of the City of Chicago for the willful and wanton
shooting of Smith by Weber) and Count V (respondeat superior liability on the part of the City of
Chicago for expressly authorizing Weber to use excessive force) are barred by Heck v. Humphrey,
512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).' Although Smith did not respond to

Weber’s arguments concerning the applicability of Heck to Count VI of the complaint, which alleges

‘in Heck, the Supreme Court held:

[In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has vot been so invalidated is not cognizable
under § 1983.

512 U.S. at 486-487, 114 S. Ct. at 2372 (emphasis in original).



that Weber and the City of Chicago maliciously abused the criminal process against Smith and
falsely arrested and falsely imprisoned Smith, Smith now states that he wants to proceed with Count
Tofhis second amended complaint only Thus, the court will address only the arguments pertaining
to Count I.

In Count I, Smith alleges that (1) Weber used excessive force and unreasonably seized Smith
in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution during the course
of the arrest that occurred on January 22, 2002.> Smith alleges that he was unarmed and attempting
to remove himself from the area of a shooting outside of the Epitome Nightclub (E-2) when Weber
shot him from behind. The court’s jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3). For the reasons stated herein, the court grants Weber’s motion to dismiss [#21] without
prejudice to Smith’s filing a third amended complaint.

MOTION TO DISMISS STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the

sufficiency of the complaint for failure to state a claim upon which relief may be granted. Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7" Cir. 1997). Dismissal is

?Neither party addressed Count III of Smith’s second amended complaint, which alleges that it is the policy
and practice of the City of Chicago to authorize certain officers, including defendant Weber, to use unauthorized and
excessive force, in violation of Smith’s constitutional rights against unlawful seizure pursuant to the Fourth and
Fourteenth Amendments. (PI. Second Amended Complaint at {{] 32-34). This is presumably because Count III is
alleged against the City of Chicago only. Although Corporation Counsel represents Weber, she has not appeared on
behalf of the City and it appears that the City of Chicago has never been served with a copy of the summons and
complaint. The file reflects that Weber may not have provided the Marshal’s Service a summons and a copy of the
complaint for the City.

>This arrest gave rise to the charges that were challenged in the now-abandoned counts of the Second
Amended Complaint. On March 15, 2004, Smith was found guilty of aggravated discharge of a firearm in the
direction of another person or in the direction of a vehicle he knows or reasonably should know to be occupied by a
person; aggravated unlawful use of a weapon; and unlawful use or possession of a weapon by a felon. A district
court may take judicial notice of matters in the public record without converting a 12(b)(6) motion into a motion for
summary judgment. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7" Cir, 1994).

2