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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, Plaintiff, v. City of Chicago, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

09 C 2604 Judge St. Eve Magistrate Judge Mason

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
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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).

Law 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.

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 (7th 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

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
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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, where the 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 an employee 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).

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. In Jinkins, 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

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 in Lacey 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 Calloway v. 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. 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. The Lacey 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 Section 305

Section 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).

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. In Lacey, 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. See Id. 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

Complaint from Lacey 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
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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

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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 in DeShaney 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

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

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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 a Monell 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.

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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 3712 Chicago, Illinois 60603 (312) 676-7600 (312) 849-2030 (Facsimile) Firm I.D. 43525

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