showing that there is a genuine issue for trial.” Fed. R. Civ.
P. S6(e). However, if the criminal court has not yet issued a
final order concerning the fate of Plaintiffs’ criminal appeals,
the Court stays a final ruling on this motion until after such a
decision is made, at which time it will order results consistent
with this opinion.
Iv CONCLUSION

For the reasons stated herein, the Defendants’ Motion to
Dismiss is granted in part and denied in part as follows:

1. Defendants’ Motion to Dismiss Counts II, VI (Malicious
Prosecution), and VII is denied.

2. Defendants’ Motion to Dismiss Count VIII is granted.

3. Defendants’ Motion for Summary Judgment as to Count VI

(Malicious Prosecution) is granted.

IT IS SO ORDERED.

fa

Hatry/D/ ¥ ber, Judge
Un. d States District Court

Date: 0

-13-


perjured themselves to cover up their misconduct. Plaintiffs
have appealed their criminal conviction, arguing that the jury
verdicts were inconsistent and the product of improper trial
court instructions. Although a hearing on their appeal was
scheduled for February 6, 2004, the Court is unaware as to
whether a decision has been reached yet.
II. MOTION TO DISMISS
A. Standard of Review

A motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) tests whether the plaintiff has properly
stated a claim upon which relief could be granted, not whether
the plaintiff will ultimately prevail on the merits. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). In ruling on a motion to
dismiss, a court must construe all well-pleaded allegations of
the complaint as true, and draw all reasonable inferences in
favor of the plaintiff. Id. A motion to dismiss will not be
granted unless it “appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957).

B. Count II (Municipal
Liability for § 1983 Torts)

A plaintiff establishes municipal liability for a violation

of his civil rights when he shows that: (1) the municipality had


intentional infliction of emotional distress). Here, Plaintiffs
allege that Defendants, among other things, savagely and publicly
engaged in the excessive use of force against them. This
certainly meets the Illinois threshold that the questioned
conduct “be so extreme as to go beyond all possible bounds of
decency and be regarded as intolerable in a civilized community.”
Feltmeier v. Feltmeier, 207 I11. 2d 263, 274 (2002). Therefore,
Defendants motion as to Count VI (Intentional Infliction of
Emotional Distress) is denied.
D. Count VII (Respondeat Superior)

Defendants challenge Count VII on the grounds that it
improperly seeks to hold Rosemont liable for the 42 U.S.C. § 1983
torts allegedly committed by Individual Defendants. In response,
Plaintiffs’ deny that Count VII applies to their federal claims,
insisting that they seek only to hold Rosemont liable for the
Individual Defendants’ state tort violations. Since Defendants
do not contest Count VII legitimacy as to the state tort claims,
the Court denies Defendants’ motion to dismiss this claim.
However, the Court will hold Plaintiffs’ to its agreed
interpretation that Count VII does not concern any 42 U.S.C.
§ 1983 claims.

E. Count VIII (Indemnification)

Defendants also seeks to dismiss Plaintiffs’ Count VIII,

which demands that Rosemont indemnify Individual Defendants for

-9-


experiences on October 4, 2002, and therefore cannot establish
the existence of a widespread practice condoning such misconduct.
Although the Seventh Circuit has not directly addressed this
issue, Defendants’ argument does find some merit in the Northern
District of Illinois. See, Johnson v. Sandidge, 87 F. Supp. 2d
832, 834-35 (N.D. Ill. 1999) {a single incident of constitutional
rights violations cannot put a municipality on notice sufficient
to impose liability); Moennich v, Metro. Pier & Exposition Auth.,
2003 U.S. Dist. LEXIS 20685 *8-9 (N.D. Ill. 2003) (conduct
towards plaintiff not enough to show custom or pattern).
However, the vast majority of recent Northern District of
Illinois’ opinions concur with Plaintiffs’ position that, under
the McCormick notice pleading standard, a complaint need not
allege specific facts evidencing a custom of condoning widespread
constitutional violations. Rather, it is enough for a complaint
to make detailed allegations concerning at least one specific
incident, and general inductive allegations concerning a
municipality’s custom or practice, provided the complaint puts
the municipality on notice of the claims against it. See, Doe v.
V., 2003 U.S. Dist. LEXIS 17570 *5-6 (N.D. Ill. 2003)
(“Boilerplate allegations concerning a policy or practice are
sufficient to survive a motion to dismiss.”); Carpanzano v.
College of Dupage, 2003 U.S. Dist. LEXIS 22004 *7-8 (N.D. Ill.
2003) (“If plaintiff had based her allegation of a municipal

-6-


an express policy that, when enforced, causes a constitutional
deprivation; (2) the municipality had a widespread practice that,
although not authorized by written law or express policy, is so
permanent as to constitute a custom or usage within the force of
law; or (3) plaintiff's constitutional injury was caused by a
person with final policymaking authority. McCormick v. City of
Chicago, 230 F.3d 319, 324 (7th Cir. 2000).

Here, Plaintiffs proceed under the second method, alleging
in theic complaint that the Individual Defendants violated
Plaintiffs civil rights “pursuant to one or more de facto
policies, practices and/or customs of the Village of Rosemont.”
These de facto policies or customs consisted of: (1) the failure
to properly investigate allegations of police misconduct,
including excessive force; (2) the failure to properly discipline
sustained allegations of police misconduct, including excessive
force; (3) the failure to properly maintain records of police
misconduct and allegations of police misconduct, including the
use of excessive force; (4) the failure to properly hire, train,
monitor and supervise police officers; and (5) permitting a “code
of silence” to exist concerning police conduct.

Defendants argue that Plaintiffs’ complaint fails to
properly establish a municipal custom. In particular, Defendants
argue that Plaintiffs do not allege instances of Rosemont police

officers using excessive force other then their own personal

~5-


Although Defendants enunciate the law properly, their
argument still fails because Plaintiffs’ complaint meets the
necessary pleading requirements. Specifically, the complaint
states that “the aforementioned policies, practices, and customs
individually or together have been maintained and/or implemented
with deliberate indifference by the Village of Rosemont.”
Defendants do not meet their burden of showing that Plaintiffs’
“can prove no set of facts in support of [their] claims which
would entitle [them] to relief.” Conley, 355 U.S. at 45-46.

c. Count VI (Intentional
Infliction of Emotional Distress)

Defendants also contest Plaintiffs’ claims for intentional
infliction of emotional distress. Defendants argue that, under
applicable Illinois law, while a pattern of acts can give rise to
this tort, a single event cannot. In doing so, Defendants’
misconstrue Illinois law. Defendants’ case citations concern
claims such as harassment, in which a single violation would
cause too little harm to constitute intentional infliction of
emotional distress, but repeated serial conduct might ~ when
viewed collectively. However, Illinois also holds that a single
incident of sufficiently outrageous conduct can qualify as
intentional infliction of emotional distress. Kolegas v. Heftel
Broadcasting Corp., 154 Ill. 2d 1, 22 (1992) (single incident of

radio personalities ridiculing individual qualified as


Minute Order Form (06/97)

|

co United States District Court, Northern District of Illinois
Name of Assigned Judge ‘ Sitting Judge if Oth
OF Magistrate Judge Harry D. Leinenweber than Assigned Judge
CASE NUMBER 03 C 7050 DATE 2/23/2004
CASE Antonio J. Delgado, et al vs. Village of Rosemont, 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:
qd) QO Filed motion of [ use listing in “Motion” box above.}
(2) ao Brief in support of motion due
@Q) oO Answer brief to motion due . Reply to answer brief due
(4) oa Ruling/Hearing on set for at .
(3) a Status hearing set for 17 Mar. 04 at 9:00 A.M..
(()) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(@) 0 Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) 0 FRCP41(a)(2).
a0 ff [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendants’ Motion
to Dismiss is granted in part and denied in part.
djl) @ {For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required
Notices mailed by judge’s staff.
Notified counsel by telephone.
vo | Docketing to mail notices.
Mall AO 450 form, 18N09 LoIisig SA
Copy to judge/magistrate judge. MEI
TQ tt Aw
courtroom Cate C2E
WAP deputy’s a
initials se
initals tS Datelline oeived in
central Clerk's Office mailing deputy italy



the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met
its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set
forth specific facts showing that there is a genuine issue for
trial.” Fep. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc.,
Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa
German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).

B. Count VI (Malicious Prosecution)

Under Illinois law, a plaintiff pursuing a malicious
prosecution claim must prove: (1) The commencement or
continuance of an original criminal or civil judicial proceeding
by the defendant; (2) The termination of the proceeding in favor
of the plaintiff; (3) The absence of probable cause for such
proceeding; (4) The presence of malice; and (5) Damages resulting
to the plaintiff. Swick v. Liautaud, 169 I11.2d 504, 512
(1996).

Here, Defendants note that although both Plaintiffs were

acquitted on the battery charges, each of them got convicted for

-1ll-


their liability. Defendants make a meritorious argument. To
acquire standing in federal court, a plaintiff must demonstrate:
(1) an injury that is concrete, particularized, and actual or
imminent rather than conjectural or hypothetical; (2) a causal
connection between the injury and the challenged conduct; and (3)
a likelihood that the injury will be redressed by a favorable
decision. Perry v. Sheahan, 222 F. 3d 309, 313 (7th Cir. 2000).
Here, Plaintiffs’ fail to satisfy even the first criteria.
Plaintiffs’ Count VIII seeks to remedy the highly theoretical
injury: that Plaintiffs will win a jury verdict against the
Individual Defendants, and that the jury will award them such a
large amount of money that the Individual Defendants will find
themselves unable to fully satisfy the judgment. Since
Plaintiffs have not demonstrated that Count VIII concerns a
present case or controversy, Count VIII is dismissed.
III. SUMMARY JUDGMENT
A. Standard of Review

Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fep. R. Civ. P.
56(c). A fact is “material” if it could affect the outcome of
the suit under the governing law; a dispute is “genuine” where

-10-


custom on nothing more than her own experience, the court would
agree that she would have failed to state a claim. ..
However, here plaintiff has also alleged that the actions of
other policymakers evince a widespread custom of disciplining or
terminating employees who speak out on matters of public
concern.”); Murray v. City of Chicago, 2003 U.S. Dist. LEXIS
11806 *9 (N.D. Ill. 2003) (plaintiff does not even need to specify
a custom or practice, provided complaint “contains sufficient
allegations to allow the City to understand the gravamen” of
claim).

Here, Plaintiffs clearly allege the existence of several
customs or practices that they believe condoned violations of
their civil rights. Plaintiffs also put Defendants on notice as
to the specifics of their claims ~ the events of October 4, 2002,
and Plaintiffs’ subsequent prosecution. Therefore, at this
stage, Plaintiffs’ Count II claim against Rosemont survives on
these grounds.

On different grounds, Defendants also challenge Plaintiffs‘
Count II claim that Rosemont is liable for Individual Defendants’
conduct under a failure to properly train theory. Defendants
argue that municipalities face § 1983 liability stemming from a
failure to train only when that failure amounts to deliberate
indifference to the rights of those whom the police come into

contact. City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).

-7-


Jimenez and Vlachos continued to use excessive force against
Delgado while Delgado was on the ground, and defendant Hauser
soon arrived on the scene.

Antonio Delgado then exited the theater, and saw what was
happening to his brother. He approached the Individual
Defendants and requested that they leave Javier Delgado alone.
Vlachos responded to this request by shoving Antonio Delgado into
glass doors and hitting him. Vlachos and defendant Minevich then
took Antonio Delgado to the ground and continued to use excessive
force against him while he was on the ground.

As the Individual Defendants continued to attack the
Plaintiffs, an eyewitness called 911 and reported that the
Individual Defendants were assaulting Plaintiffs in the presence
of uniformed Rosemont police officers. Rosemont did not
investigate the complaint. .

Javier and Antonio Delgado were each arrested and criminally
charged with battery and resisting a peace officer. The charges
of battery and resisting a peace officer were based on the same
underlying factual allegations. Specifically, the criminal
indictment alleged that Antonio Delgado punched Vlachos in the
face and that Javier Delgado punched Jimenez in the chest.
Despite this, the jury convicted both on charges of resisting a
peace officer, and acquitted both of the battery charges. During

the trial, the Plaintiffs allege that the Individual Defendants

-3-


no Count III or Count IV, but does contain two counts labeled
“Count VI.” One of these Count VI’s alleges that the Individual
Defendants committed the state law tort of malicious prosecution
against Plaintiffs, while the other. count claims they engaged in
the state law tort of intentional infliction of emotional
distress. Count VII asserts that Rosemont is liable “for all
torts” committed by the Individual Defendants under a theory of
Respondeat Superior. Lastly, Count VIII demands that Rosemont
indemnify the Individual Defendants.
I. BACKGROUND

The following record is mostly compiled from Plaintiffs’
complaint, as the Court must accept Plaintiffs’ versions of the
facts as true for purposes of this motion. It has been
supplemented by legal facts established through the Plaintiffs’
subsequent criminal convictions.

On October 4, 2002, Plaintiffs attended a concert at the
Rosemont. Theater in Rosemont, Illinois. Following two minor
confrontations he had with security personnel, Individual
Defendants Jimenez and Vlachos (each dressed as security guards)
confronted Javier Delgado and told him he was being removed from
the theater. Jimenez and Vlachos then escorted him out the
theater’s north exit. Once outside, Jimenez grabbed Javier
Delgado from behind and, without cause, shoved him into a pillar

- resulting in Javier Delgado sustaining serious bleeding.

-2-


IN THE UNITED STATES DISTRICT coury= J
FOR THE NORTHERN DISTRICT OF ILLINOIS L E BD
EASTERN DIVISION

Fi .

€8 2 5 2004
ANTONIO J. DELGADO and JAVIER WUDge
M. DELGADO, 48. OsTaf 2 LENE cn

URT Junge
Case No. 03 C 7050

Plaintiffs,

Vv.
Hon. Harry D. Leinenweber
VILLAGE OF ROSEMONT, ARTHUR
VLACHOS, JOSE JIMENEZ, BRIAN
MINEVICH, and D. HAUSER,

DOCKETED
FEB 24 2004

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Antonio Delgado and Javier Delgado (the
“Plaintiffs”) brought suit against Defendants Village of Rosemont
(hereinafter, “Rosemont”), Arthur Vlachos, Jose Jimenez, Brian
Minevich, and D. Hauser (hereinafter referred to as_ the
“Individual Defendants”, and when combined with Rosemont then as
the “Defendants”) alleging state law tort claims and violations
of their federal constitutional rights. Rosemont and Individual
Defendants have submitted a combined motion asking the Court to
dismiss Counts II, VI (Intentional Infliction of Emotional
Distress), VII, and VIII of Plaintiffs complaint, and grant
summary judgment as to Count VI (Malicious Prosecution). Count
II claims, also under 42 U.S.C. § 1983, that Rosemont had a
policy or custom of indifference to the use of excessive force.

For reasons unclear to the Court, Plaintiffs’ complaint contains

\


resisting a peace officer. Defendants contend, and Plaintiffs do
not dispute, that both charges were predicated upon the same
underlying factual allegations - that Antonio Delgado punched
Vlachos in the face, and Javier Delgado punched Jimenez in the
chest. Since the jury found both Plaintiffs guilty of one of the
crimes arising out of this allegation, Defendants arque that as
a matter of law, probable cause must have existed to prosecute
Plaintiffs for battery.

Plaintiffs responds by asking that the Court enter and
continue Defendants’ motion until after a criminal court decides
the merits of their criminal appeals. Plaintiffs’ reply brief,
dated January 2, 2004, states that a criminal court was scheduled
to hear their appeal on February 6, 2004. To date, the Court has
not heard further from Plaintiffs as to whether their appeal
succeeded, failed, or has yet to be decided. Therefore, on this
motion the Court today issues only a conditional ruling, to be
further clarified upon learning the results of Plaintiffs’
criminal appeal. If Plaintiffs’ criminal appeal has succeeded,
the basis for Defendants’ summary judgment motion ceases to
exist, and therefore the Court denies it. Likewise, if
Plaintiffs’ criminal appeal has already failed, then Defendants’
summary judgment motion must be granted as Plaintiffs have failed
to contest it on any other ground. They certainly have not met

their summary judgment burden of setting forth “specific facts

- 12 -