McCauley Brief

8/3/2019 McCauley Brief

1/13

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

Brewster McCauley, as Special )

Administrator of the Estate of )Mersaides McCauley, ) 09 C 2604

) Judge St. Eve

Plaintiff, ) Magistrate Judge Mason

)

v. )

)

City of Chicago, et al., )

)

Defendants. )

Plaintiffs Response to Defendants Motions to Dismiss

Plaintiff, Brewster McCauley, as Special Administrator of the Estate of Mersaides

McCauley, by and through his attorneys, DOLAN LAW OFFICES, PC, submits the following in

response to Defendants Motions to Dismiss the Second Amended Complaint:

INTRODUCTION

I. Nature of the Action

This action stems from the death on April 6, 2008 of Plaintiffs Decedent, Mersaides

McCauley. Second Amended Complaint ( S.A.C.) 28-29. McCauley was shot and killed by

her ex-boyfriend, Glenford J. Martinez, a convicted murderer on mandatory supervised release

against whom McCauley had an Order of Protection issued after Martinez committed a battery

on McCauley. S.A.C. 35, 37. In addition to a claim against the Estate of Glenford J. Martinez,

the Second Amended Complaint contains claims against the City of Chicago (City) as well as

the Illinois Department of Corrections (IDOC), Roger E. Walker, Jr., the Director of the

Illinois Department of Corrections, Various Unknown Illinois Department of Corrections

Officers and Parole Officer FNU Winfield (collectively IDOC Defendants). Plaintiff alleges


2/13

2

claims of battery against the Martinez Estate and violations of the Illinois Domestic Violence Act

as well as the Equal Protection and Due Process Clauses against the City and IDOC Defendants.

II. Facts

In 1992, Martinez shot two individuals in a drug-related incident and was subsequently

found guilty of murder and attempted murder. S.A.C. 9-10. Upon his convictions for murder

and attempted murder, Martinez was sentenced to terms of imprisonment of 28 years and 14

years, to be served concurrently, with IDOC. S.A.C. 10. On May 25, 2006, IDOC released

Defendant Martinez from his incarceration to mandatory supervised release. S.A.C. 11.

Defendant Martinezs discharge date from his IDOC mandatory supervised release was set for

May 25, 2009. S.A.C. 12.

On November 3, 2007, Martinez choked McCauley to the point of unconsciousness.

S.A.C. 14. Chicago police officers arrested Martinez for domestic battery/bodily harm that

same day. S.A.C. 15.1

The domestic violence incident was set to be heard in state court on

April 17, 2008. S.A.C. 22.

II. Procedural Posture

On February 13, 2009, Plaintiff filed this action in the Circuit Court of Cook County.

The City of Chicago removed the action to the United States District Court for the Northern

District of Illinois on April 29, 2009. Plaintiffs Second Amended Complaint, filed on April 13,

2009, is now before this Court on the IDOC Defendants Motion to Dismiss pursuant to Rules

12(b)(1) and 12(b)(6) and the Citys Motion to Dismiss pursuant to Rule 12(b)(6).

1Law enforcement authorities did not check Martinezs background nor was he charged for violating his parole for

the domestic battery arrest or held without bail pending his new case.


3/13

3

STANDARD

A motion to dismiss may challenge the courts subject matter jurisdiction. See Fed. R.

Civ. P. 12(b)(1). All well-pleaded allegations are accepted as true, and all reasonable inferences

are drawn in plaintiffs favor.Evers v. Astrue, 536 F.3d 651, 656 (7th

Cir. 2009). In determining

whether to dismiss for lack of jurisdiction, the court may look beyond the allegations of the

complaint to determine whether jurisdiction exists.Evers, 536 F.3d at 656-57.

A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of

facts that would entitle him to relief. Marshall-Mosby v. Corporate Receivables, 205 F.3d 323,

326 (7

th

Cir. 2000). In reviewing a complaint, all factual allegations are taken as true and all

reasonable inference drawn in the plaintiffs favor. Brown v. Budz, 398 F.3d 904, 907 (7th Cir.

2005).

ARGUMENT

I. Counts IV, V, VI and VII, Claims Under the Illinois Domestic Violence Act, Are

Factually Sufficient

The IDOC Defendants contend that Counts IV, V, VI and VII, claims brought under the

Illinois Domestic Violence Act and Illinois Survival Act, are subject to dismissal because they

are factually insufficient. The Second Amended Complaint alleges that Martinez, after

incarceration for murder and attempted murder, was released to IDOC mandatory supervised

release. S.A.C. 9-11. His mandatory supervised release discharge date was set for May 25,

2009. S.A.C. 12. It further alleges that Martinez, an ex-boyfriend of Mersaides McCauley,

choked her to the point of unconsciousness on November 3, 2007. S.A.C. 14. Martinez was

arrested for the domestic violence and McCauley obtained an Order of Protection. S.A.C. 15.

The Second Amended Complaint alleges that the Cook County States Attorneys Office


4/13

4

contacted IDOC on December 18, 2007 and January 9, 2008 and notified IDOC of the domestic

violence battery charge against Martinez. S.A.C. 19, 21.

The IDOC Defendants contend that the allegation that Defendants knew or should have

known of Martinezs arrest for domestic violence on November 3, 2007, the existence of the

pending Order of Protection, and the continued contact by Defendant Martinez is conclusory.

The knew or should have known allegation is based in the allegations that the Cook County

States Attorneys Office contacted IDOC regarding Martinez. Indeed, the IDOC Defendants

confirmed the existence of its parole agents knowledge of Martinezs domestic battery arrest as

reported in a Chicago Tribune article, dated April 15, 2008. That contact should have triggered,

at the very least, an IDOC investigation of Martinez given his mandatory supervised release

status. If IDOC did not know about Martinezs criminal activity while on mandatory supervised

release, IDOC should have known. Thus, the allegation is clearly not conclusory.

The IDOC Defendants contend that the allegations concerning IDOCs knowledge of

repeated violations of the Order of Protection by Martinez are conclusory as well. The

information concerning IDOCs knowledge is within the hands of the IDOC Defendants and

discovery will need to be conducted in order to ascertain the extent of that knowledge. Thus,

Plaintiff would respectfully request that discovery be allowed to proceed on this matter and the

allegations allowed to stand at this time.

II. The Doctrine of Sovereign Immunity Does Not Bar this Suit Against the IDOC

Defendants

The IDOC Defendants contend that this suit is barred by the doctrine of sovereign

immunity. Under the State Lawsuit Immunity Act, the State of Illinois shall not be made a

defendant or party in any court. 745 ILCS 5/1 (West 2006). Generally, an agency of the State

may not be a defendant in a circuit court action because State agencies are considered to be arms


5/13

5

of the State itself, which is immune from suit in the circuit court. Rockford Memorial Hospital v.

Department of Human Rights, 272 Ill. App. 3d 751, 756, 651 N.E.2d 649, 654 (2d Dist. 1995).

However, the rule is not absolute: The determination that a claim is one against the State does

not depend upon the State agency being named as a party. The determination depends instead on

the issues involved and the relief sought. In determining whether sovereign immunity applies to

a particular case, substance takes precedence over form. Rockford, 272 Ill. App. 3d at 757

(internal citations omitted).

The Illinois Supreme Court has instructed that when determining whether a tort claim

arising out of the alleged on-the-job negligence of a state employee is in reality a claim against

the state, the proper inquiry is into the source of the duty the employee is charged with

breaching. Currie v. Lao, 148 Ill.2d 151, 159, 592 N.E.2d 977, 980 (1992). In Currie, the

Illinois Supreme Court found that sovereign immunity did not bar suit by truck driver against a

state trooper arising from a traffic collision, because the trooper was not charged with breach of a

duty imposed on him solely by virtue of his state employment. Rather it was the same duty of

care owed by any driver to the general public. Currie, 148 Ill. 2d at 259. The Illinois Supreme

Court explained the source-of-duty analysis as follows:

Where the charged act of negligence arose out of the State employees breach of a

duty that is imposed on him solely by virtue of his State employment, sovereign

immunity will bar maintenance of the action in circuit court. Conversely, wherethe employee is charged with breaching a duty imposed on him independently of

his State employment, sovereign immunity will not attach and a negligence claim

may be maintained against him in circuit court. In other words, where anemployee of the State, although acting within the scope of his employment, is

charged with breaching a duty that arose independently of his State employment,

a suit against him will not be shielded by sovereign immunity.

Id. (internal citations omitted).


6/13

6

Applying the Currie analysis to the case at bar, the duty owed to Mersaides McCauley

was not dependent on the state employment of the defendants. Regarding Plaintiffs state law

claims, the Illinois Domestic Violence Act imposes a duty on all law enforcement officers to

use all reasonable means to prevent further abuse, neglect or exploitation and to refrain from

willful and wanton conduct in rendering emergency assistance or otherwise enforcing the Act.

See 750 ILCS 60/304, -60/305. Likewise, the IDOC Defendants, in their law enforcement

capacities, owed a duty to Mersaides McCauley under the federal Constitution to refrain from

violating McCauleys equal protection and due process rights.

Jinkins v. Lee, 209 Ill.2d 320, 321, 807 N.E.2d 411, 412 (2004), is illustrative of the

independent duty finding. InJinkins, the estate of a man who committed suicide after discharge

from a state mental health center brought suit against two of the centers employees, a

psychiatrist and a counselor. The defendants argued that they owed no duty to the decedent but

for their state employment. The court, while noting that the defendants certainly would not

have encountered the decedent but for their employment, rejected that the duty owed decedent

was derived solely from their state employment. Jinkins, 209 Ill.2d at 333. Rather, the court

found that the source of the defendants duty was their status as mental health professionals. Id.

The supreme court then proceeded to determine if the relief sought would subject the state to

liability. The court determined it would not as a judgment would not operate to control the state.

Id.

Jinkins and other Illinois cases involving state-employed health professionals are

analogous to the case at bar. See, e.g., Madden v. Kuehn, 56 Ill. App. 3d 997, 372 N.E.2d 1131

(2d Dist. 1978); Watson v. St. Annes Hospital, 68 Ill. App. 3d 1048, 386 N.E.2d 885 (1st

Dist.

1979). The duty owed to Mersaides McCauley was derived from the defendants status as law


7/13

7

enforcement officers and is wholly independent of their state employment. Thus, the claims

against the IDOC Defendants are not barred by the doctrine of sovereign immunity.

III. The Second Amended Complaint Sets Forth Cognizable Claims Under the Illinois

Domestic Violence Act

The City and the IDOC Defendants contend that Plaintiff has not stated cognizable

claims under the Illinois Domestic Violence Act, relying on the Illinois Supreme Courts recent

decision inLacey v. Village of Palatine, 232 Ill.2d 349, 904 N.E.2d 18 (2009). Lacey clarified

the interplay of the limited immunity of Section 305 of the Domestic Violence Act recognized in

Callowayv. Kinkelaar, 168 Ill.2d 312, 324, 659 N.E.2d 1322, 1328 (1995), with the absolute

immunities of Section 4-1022

and Section 4-1073

of the Tort Immunity Act. Section 305

provides:

Any act of omission or commission by any law enforcement officer acting in

good faith in rendering emergency assistance or otherwise enforcing this Act shall

not impose civil liability upon the law enforcement officer or his or her supervisor

or employer, unless the act is a result of willful or wanton misconduct.

750 ILCS 60/305. TheLacey analysis was intensely fact-specific and does not preclude a claim

under Section 305.

In Calloway, the Illinois Supreme Court found that Section 305 created a specially

protected class of individuals to whom statutorily mandated duties are owed. 168 Ill.2d at 324.

The Illinois Supreme Court stated that an injured person setting forth a claim under the Act must

show: that he or she is a person in need of protection under the Act, the statutory law

2Section 4-102 provides: [n]either a local public entity nor a public employee is liable for failure to establish a

police department or otherwise provide police protection service or, if police protection service is provided, for

failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect

or solve crimes, and failure to identify or apprehend criminals. 745 ILCS 10/4-102 (West 2002).3

Section 4-107 provides, in relevant part: [n]either a local public entity nor a public employee is liable for an injury

caused by the failure to make an arrest. 745 ILCS 10/4-107 (West 2002).


8/13

8

enforcement duties owed to him or her were breached by willful and wanton acts or omissions of

law enforcement officers, and such conduct proximately caused [the] plaintiffs injuries.Id.

InLacey, the family of Mary Lacey sued the City of Chicago, the Village of Palatine, the

Village of Glenview, and several police officers, after Mary Lacey and her mother were

murdered by Laceys ex-boyfriend, Steven Zirko. The suit alleged that Palatine and Glenview

police officers assured Lacey they would provide protection after learning Zirko had schemed to

kill Lacey. On December 13, 2004, Zirko murdered Lacey and her mother. Lacey, 232 Ill.2d at

368.

The Illinois Supreme Court opined that the limited immunity analysis turned on whether

the police officers were otherwise enforcing the Act during the time Lacey requested police

protection because there were no allegations that defendants were rendering emergency

assistance. Id. at 361. The supreme court found that there was facts supporting otherwise

enforcing and reversed the decision of the appellate court, thus affirming the circuit courts

dismissal of the complaint.Id. at 368.

Of particular import in the Lacey courts finding was the fact that the defendants

investigation of the murder-for-hire plot had closed on October 22, 2004 nearly two months

before the murder. SeeId. It was this fact that foreclosed a finding of otherwise enforcing. In

the instant case, the Second Amended Complaint alleges that Martinez physically assaulted

McCauley on November 3, 2007. S.A.C. 3. It further alleges she obtained an Order of

Protection which was in force at the time of the shooting. S.A.C. 16, 18. Additionally,

Martinezs domestic violence battery charge was set for trial on April 17, 2008. S.A.C. 22. At

all times, Martinez was still on mandatory supervised release from the Illinois Department of

Corrections. S.A.C. 11-12. These factual allegations distinguish Plaintiffs Second Amended


9/13

9

Complaint fromLacey where the decedents formal relationship with defendant law enforcement

entities had ended before the murder. The ongoing relationship between McCauley and the

defendant law enforcement officers as alleged in the Second Amended Complaint supports a

finding that the defendants were otherwise enforcing the Act.

The legislature gave the courts clear guidance in construing the Domestic Violence

statute. This Act shall be liberally construed and applied to promote its underlying purpose.

750 ILCS 60/102. A liberal construction of the facts alleged should result in recognition of

cognizable Domestic Violence Act claims. Alternatively, Plaintiff requests leave to amend the

complaint upon the completion of discovery regarding the defendants action/inaction with

respect to Mersaides McCauley and Glenford J. Martinez.

IV. Plaintiff Requests Leave to Amend With Respect to the Section 1983 Claims Against

the IDOC Defendants

Plaintiff respectfully requests leave to file an amended complaint, withdrawing Counts X

and XI, the Equal Protection and Due Process claims against the Illinois Department of

Corrections, and withdrawing the official capacity allegations against Roger E. Walker, Jr.

contained in Counts XII and XIII. Regarding Defendants attack on the section 1983 claim

against Roger E. Walker, Jr., Plaintiff seeks leave to engage in limited discovery regarding Roger

E. Walker, Jr.s personal involvement in the events occurring during Martinezs supervised

release, which Plaintiff alleges caused the death of Mersaides McCauley.

V. The Second Amended Complaint Sets Forth Cognizable Equal Protections Claims

Defendants contend that the Second Amended Complaint fails to set forth cognizable

equal protection claims. The Equal Protection Clause of the Fourteenth Amendment provides

that no state shall deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV. To establish a prima facie case of discrimination under the equal


10/13

10

protection clause, plaintiff is required to show that [s]he is a member of a protected class, that

[s]he is otherwise similarly situated to members of the unprotected class, and that [s]he was

treated differently from members of the unprotected class. Brown v. Budz, 398 F.3d 904, 916

(7th

Cir. 2005).

Defendants contend specifically that the equal protection claims fail because they involve

neither a protected class nor a fundamental right. Suspect classification is found where a group

has experienced a history of purposeful unequal treatment or been subjected to unique

disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.

Massachussetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976). Plaintiff contends

that Mersaides McCauley, a female domestic violence victim, is a member of a suspect class.

Plaintiff posits that law enforcement response to domestic violence cases has historically been

deficient. Thus, recognition of domestic violence victims as a suspect class would enable them

to pursue equal protection claims against law enforcement that are necessary to ensure that law

enforcement can be held accountable. Dismissal should not be granted but rather discovery on

this issue of the defendants systematic different treatment of domestic violence crimes as

opposed to other similar assault crimes should be allowed to proceed.

The IDOC Defendants also contend that McCauleys claim fails because she cannot

allege that she was treated differently from other victims of domestic violence. Defendant has

improperly framed the analysis. The proper inquiry is whether Plaintiff has alleged that she was

treated differently than other citizens, i.e., similarly situated individuals, because of her

membership in a class a victim of domestic violence. See Brown, 398 F.3d at 916. The Second

Amended Complaint alleges that the City has an unwritten custom, practice and policy to afford

lesser protection or none at all to victims of domestic violence. S.A.C. 121. Surely, this


11/13

11

allegation satisfies the pleading requirement of an equal protection claim. See, e.g.,Bennett v.

Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (holding that an allegation as simple as I was turned

down a job because of my race sufficiently pled race discrimination in violation of the Equal

Protection Clause).

VI. The Second Amended Complaint Sets Forth Cognizable Due Process Claims

Defendants also contend that McCauleys due process claims are not cognizable, relying

on DeShaney v. Winnebago County Dept of Social Services, 489 U.S. 189 (1989). The Due

Process Clause of the Fourteenth Amendment provides that no State shall deprive any person of

life, liberty, or property without due process of law. The Supreme Court inDeShaney found

that the clause does not obligate the state to protect the general public from harm where the actor

is a private citizen. There is, however, an exception. A defendant may owe constitutional

obligations to particular citizens because of a special relationship. See DeShaney, 489 U.S. at

195. Such a special relationship implicating the Due Process Clause is where the state creates

a dangerous situation or renders citizens more vulnerable to danger. Estate of Stevens v. City of

Green Bay, 105 F.3d 1169, 1174 (7th Cir. 1997).

The Second Amended Complaint alleges that between his release and the shooting:

1) Martinez was on mandatory supervised release status; 2) Martinez physically attacked

Mersaides McCauley; 3) an Order of Protection was issued against Martinez; and 4) the domestic

violence battery charge was pending against McCauley. S.A.C. 11-12, 14, 18, 22. Despite

these factors, the IDOC Defendants did not issue an arrest warrant for Martinez for violation of

his mandatory supervised release. S.A.C. 22. Martinez was released on bond after his arrest

while awaiting trial on the domestic battery charge. Regarding the City, the Second Amended

Complaint alleges that the CPD never arrested Martinez for violating the Order of Protection


12/13

12

despite, upon information and belief, its knowledge of his violations. S.A.C. 25. These

allegations implicate a finding that Defendants alleged failures to protect McCauley (in light of

their knowledge of Martinez) rendered McCauley more vulnerable to the danger that ultimately

befell her. As such, Plaintiff sufficiently sets forth due process violation claims.

VII. The Second Amended Complaint Alleges Municipal Liability Against the City

The City contends that Plaintiff has failed to adequately state a section 1983 claim under

aMonell theory of liability. See Monell v. Department of Social Services, 436 U.S. 658 (1978).

In order to hold a municipality liable under section 1983, a plaintiff must show that a

governments policy or custom caused a violation of constitutional rights. Monell, 436 U.S. at

694. Section 1983 liability may be found against a municipality if, among other things: (1) it

has a permanent and well-settled municipal custom or practice that, although not authorized by

official law or policy, was the moving force behind the plaintiff's constitutional injury; or (2) an

individual with final policy-making authority for the municipality (on the subject in question)

caused the constitutional deprivation.Monell, 436 U.S. at 690.

The Second Amended Complaint alleges that Defendant City of Chicago is responsible

for the implementation of policies, procedures, practices, and customs, and therefore, is the

moving force for the acts and omissions challenged by this suit. S.A.C. 120. The Second

Amended Complaint further alleges that Defendant has an unwritten custom, practice and

policy to afford lesser protection or none at all to victims of domestic violence. S.A.C. 121.

While the City may dispute the existence of such a policy, these allegations satisfy the pleading

requirements for a section 1983 claim under the moving force theory recognized in Monell.

Thus, Defendant Citys motion to dismiss on this basis should be denied.


13/13

13

CONCLUSION

For the foregoing reasons, Plaintiff, Brewster McCauley, as Special Administrator of the

Estate of Mersaides McCauley, respectfully requests that this Court deny Defendants Motion to

Dismiss and grant leave to amend as so stated.

Respectfully submitted,

/s/ Martin A. Dolan

By: __________________________

An Attorney for the Estate of

Mersaides McCauley

DOLAN LAW OFFICES, P.C.10 South LaSalle Street

Suite 3712Chicago, Illinois 60603

(312) 676-7600

(312) 849-2030 (Facsimile)

Firm I.D. 43525

Documents

McCauley Brief