Case: 1:16-cv-07935 Document #: 9 Filed: 10/07/16 Page 1 of 11 PageID #:17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JASMINE WILEY
Plaintiff,
v.

POLICE OFFICER MICHAEL BABICZ, Case No. 16 CV 7935

POLICE OFFICER GEORGE ADAMIDIS
and VILLAGE OF MAYWOOD, an Illinois Judge: Amy St. Eve
municipal corporation,

Defendants.

DEFENDANTS RULE 12(B)(6) MOTION TO DISMISS

NOW COME Defendants, the Village of Maywood (Village), an Illinois municipal

corporation, Police Officer Michael Babicz and Police Officer George Adamidis (Officers), by

and through its attorneys, KLEIN, THORPE AND JENKINS, LTD., and in support of their Rule

12(b)(b) motion to dismiss states as follows:

INTRODUCTION

The Plaintiff filed her four-count Complaint at Law (Complaint) in this matter against

the Village and the Officers alleging (1) Section 1983 unlawful search and seizure; (2) Section

1983 Excessive Force; (3) Section 1983 False Arrest; and (4) Illinois State law claim

indemnification against the Village of Maywood. A true and accurate copy of the Complaint is

attached hereto as Exhibit A.

All counts of the Complaint should be dismissed because they fail to allege facts giving

rise to a plausible right to relief against the Defendants. Further, all federal counts of the

Complaint should be dismissed against the Village of Maywood because there is no Monell

claim alleged and a municipality cannot be held liable for its employees actions under Section

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1983 on a respondeat superior theory. Finally, any State law claims against the Defendants are

barred by the applicable one year statute of limitations.

FACTS ALLEGED IN COMPLAINT

The allegations of the Complaint are sparse. The allegations consist of (1) the Plaintiff

was driving in Maywood; (2) the Plaintiff was stopped by the Officers with no legal basis; (3)

the Plaintiff was arrested with no legal basis; (4) the Plaintiff was nine months pregnant; and (5)

the Plaintiff was forcibly removed from her vehicle, thrown to the ground and injured, all with

no legal basis. Complaint, 8-11.

ARGUMENT

I. The Complaint does not contain sufficient factual allegations

After excising the Plaintiffs unsupported legal conclusions, the Complaint is nothing

more than a formulaic recitation of the elements of its various Section 1983 claims. Therefore,

the Complaint should be dismissed.

A complaint must contain a short and plain statement of the claim showing that the

pleader is entitled to relief, in order to give the defendant fair notice of what theclaim is and

the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);

Fed. R. Civ. P. 8.

To survive a motion to dismiss, a complaint must contain sufficient factual allegations

which, when accepted as true, state a claim to relief that is plausible on its face. Id. at 570. A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable of the misconduct alleged. Id. at 556.

The allegations must be enough to raise a right to relief above the speculative level. Id. at 555.

A complaint that merely alleges facts demonstrating the possibility that a claim exists is

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insufficient. Moreover, a claim containing allegations that are merely consistent with a

defendants liability, stops short of the line between possibility and plausibility of entitlement

to relief. Id. at 557; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

A plaintiffs obligation to provide grounds of his entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of the cause of action will

not do. Trombly, 550 U.S. at 555. [A] court considering a motion to dismiss canbegin by

identifying allegations that, because they are no more than conclusions, are not entitled to the

assumption of truth. Iqbal, 129 S.Ct. at 1950. After excising the allegations not entitled to a

presumption of truth, the role of the court is to determine whether the remaining factual

allegations plausibly suggest an entitlement to relief. Id. at 1951.

In this case, after excising the legal and factual conclusions from the Complaint, all that

the Complaint alleges is that: (1) the Plaintiff was driving in Maywood; (2) she was nine months

pregnant; (3) she was stopped by the Officers; (4) she was forcibly removed from her vehicle and

thrown to the ground causing injuries; and (5) she was arrested. Complaint, 8-11. These

allegations do not give rise to a plausible entitlement to relief for any count in the Complaint.

These allegations are the only allegations of the Complaint entitled to a presumption of

truth. Even assuming these allegations are true, they leave the Court speculating as to whether

the force used was reasonable, whether the arrest was justified and whether the search and

seizure were justified. Accordingly, the Complaint should be dismissed because the Plaintiffs

right to relief, as currently pled, does not rise above the speculative level.

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II. Section 1983 claims against the Village should be dismissed

While it is not entirely clear, the Complaint could be construed as seeking liability

against the Village under Section 1983. However, any such claims should be dismissed because

they have not been properly pled.

As this Honorable Court is well aware, municipality liability under Section 1983 must be

direct and not vicarious. Monell v. N.Y. Dept of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018

(1978). A municipality may not be sued under 1983 for an alleged injury inflicted solely by its

employees or agents. Id. Rather, a 1983 claim can stand only when execution of a

governments policy or custom, whether made by its lawmakers or those whose edicts or act may

fairly be said to represent the official policy, inflicts the injury. Id. The Seventh Circuit has

articulated that municipal liability under 1983 can be based on:

(1) an express policy that, when enforced, causes a constitutional deprivation; (2)
a widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to constitute a custom or
usage with the force of law; or (3) an allegation that the constitutional injury
was caused by a person with final policymaking authority.

Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 981 (7th Cir. 2000) (internal quotation

marks omitted).

In this case, through Count IV, the Plaintiff is arguably seeking relief directly against the

Village for the acts of the Officers. To the extent this is true, the claims against the Village

should be dismissed because the Plaintiff has not alleged municipal liability based on an express

Village policy, a widespread, permanent and well-settled practice, or that the Plaintiffs injury

was caused by a final policy maker.

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III. State law claims asserted by the Plaintiff are barred by the statute of limitations

Pursuant to Section 8-101 of the Illinois Local Government and Governmental

Employees Tort Immunity Act, no civil actionmay be commenced in any court against a local

entity 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. 745 ILCS 10/8-101(a).

Count IV of the Complaint is labeled a State law claim. The injury at issue in this case

was allegedly received on September 16, 2014, and the Plaintiffs cause of action accrued at that

time. Complaint, 8. On August 8, 2016, the Complaint was filed. To the extent that the

Complaint alleges any State law claims against the Village and/or the Officers, the claims are

barred by the applicable statute of limitations and should be dismissed.

WHEREFORE, the Village of Maywood, Officer Babicz and Officer Adamidis

respectfully request that this Honorable Court grant the Defendants Rule 12(b)(6) motion to

dismiss and dismiss Plaintiffs Complaint at Law in its entirety, and for further relief as may be

just and proper.

Respectfully submitted,

DEFENDANTS

By: /s/ Jason A. Guisinger

One of their Attorneys

Jason A. Guisinger
Klein, Thorpe and Jenkins, Ltd.
20 N. Wacker Drive, Ste. 1660
Chicago, IL 60606
(312) 984-6400
jaguisinger@ktjlaw.com
ARDC No. 6286291

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