Case: 1:17-cv-05093 Document #: 32 Filed: 12/22/17 Page 1 of 26 PageID #:71

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
LUIS VICENTE PEDROTE-SALINAS,
Plaintiff,
No. 17-cv-5093
v.
Hon. Joan H. Lefkow
SUPERINTENDENT EDDIE JOHNSON, et
al.,
Defendants.

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR
MOTION TO DISMISS PLAINTIFF’S COMPLAINT

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TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1
BACKGROUND ........................................................................................................................... 2
ARGUMENT ................................................................................................................................. 3
I.

Plaintiff’s Section 1983 Claims Are Barred (Counts I-IV). ............................................. 3
A.

Plaintiff’s challenge to the content of his CPD records is time-barred. ....................... 3

B.

The Court lacks jurisdiction over Plaintiff’s challenges to conduct that occurred
within the two-year limitation period. .......................................................................... 4

II.

Plaintiff Fails To State A Due Process Claim Against Defendants Based On The
Creation Of CPD Records (Counts I-IV). ........................................................................ 6
A. Defendants did not deprive Plaintiff of a protected liberty interest. ................................ 6
B. No additional process is required. .................................................................................. 10

III.

Plaintiff Fails To State A Monell Claim Against The City (Counts I & IV). ................ 13

IV.

Qualified Immunity Bars Plaintiff’s Claims Against The Defendants Sued In Their
Individual Capacities (Counts II and III). ...................................................................... 14

V.

Any Damages Claim Based On The Federal Decisions Is Barred By Heck. ................. 15

VI.

Plaintiff Fails To State An ICRA Claim (Count V). ...................................................... 16

VII.

Plaintiff’s Indemnification Claim Should Be Dismissed (Count VI). ........................... 19

CONCLUSION ........................................................................................................................... 19

i

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TABLE OF AUTHORITIES
Cases
Abiodun v. Maurer, No. CIVA No. 07-CV-02431-BNB, 2007 WL 4459166 (D. Colo. Dec. 14,
2007).......................................................................................................................................... 16
Adams v. City of Indianapolis, 742 F.3d 720 (7th Cir. 2014) ...................................................... 18
Alvarez v. U.S. Immigration & Customs Enf’t, 818 F.3d 1194 (11th Cir. 2016) .......................... 6
Arias v. U.S. Immigration & Customs Enf’t, Civ. No. 07-1959 ADM/JSM, 2008 WL 1827604
(D. Minn. Apr. 23, 2008) ............................................................................................................ 6
Arizona v. United States, 567 U.S. 387 (2012) ........................................................................ 8, 10
Ashafa v. City of Chicago, 146 F.3d 459 (7th Cir. 1998)............................................................... 4
Ashcroft v. al-Kidd, 563 U.S. 731 (2011)..................................................................................... 15
Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................................................... 13, 15
Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976)....................................................................... 10
Bailey v. Tricolla, No. CV–94–4597 CPS, 1995 WL 548714 (E.D.N.Y. Sept. 12, 1995) ............. 7
Baskin v. City of Des Plaines, 138 F.3d 701 (7th Cir. 1998) ....................................................... 13
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) ......................................................... 6
Belleri v. United States, No. 10-81527-CIV, 2013 WL 12134099 (S.D. Fla. Aug. 26, 2013) ....... 6
Bettendorf v. St. Croix Cnty., 631 F.3d 421 (7th Cir. 2011) .......................................................... 7
Brady v. Maryland, 373 U.S. 83 (1963) ......................................................................................... 8
Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592 (7th Cir. 2014)................................................... 8
Bush v. City of Philadelphia, No. 98–0994, 1999 WL 554585 (E.D. Pa. 1999) ............................ 7
Calix-Chavarria v. Gonzalez, CIV. No. 1:CV-06-0820, 2006 WL 1751783
(M.D. Pa. June 22, 2006) .......................................................................................................... 16
Carpenter v. Bd. of Regents of Univ. of Wis. Sys., 728 F.2d 911 (7th Cir. 1984) ....................... 19
Chardon v. Fernandez, 454 U.S. 6 (1981) ...................................................................................... 4
ii

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Ciomber v. Cooperative Plus, Inc., 527 F.3d 635 (7th Cir. 2008) .................................................. 9
Cnty. of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017) .............................................................. 9
Coal. for Safe Chicago Cmtys. v. Vill. of Riverdale, No. 2015 CH 10390, 2016 WL 1077293
(Ill. Cir. Ct. Feb. 25, 2016) ........................................................................................................ 16
Cohen v. Clemens, 321 F. App’x 739 (10th Cir. 2009) ................................................................ 15
Culbreath v. Morgan, 3:05–CV–280 GTE, 2006 WL 2331111 (E.D. Ark. Aug. 9, 2006) ............ 7
Dandan v. Ashcroft, 339 F.3d 567 (7th Cir. 2003) ......................................................................... 8
Daniel v. United States, No. 4:14-CV-00443-AKK-TMP, 2015 WL 1334029
(N.D. Ala. Mar. 24, 2015) ......................................................................................................... 16
Darif v. Holder, 739 F.3d 329 (7th Cir. 2014) ................................................................................ 8
Dave v. Ashcroft, 363 F.3d 649 (7th Cir. 2004) ............................................................................. 6
De La Teja v. United States, 321 F. 3d 1357 (11th Cir. 2003) ....................................................... 6
DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999) .............................................................................. 6
Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013) ............................................................................. 4
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) ..................................................................... 8
Estate of Moreland v. Dieter, 395 F.3d 747 (7th Cir. 2005) ......................................................... 14
Ewell v. Toney, 853 F.3d 911 (7th Cir. 2017) .............................................................................. 14
Farrell v. Butler Univ., 421 F.3d 609 (7th Cir. 2005) ................................................................... 19
Flint v. City of Milwaukee, 91 F. Supp. 3d 1032 (E.D. Wis. 2015) ............................................. 12
Foster v. Townsley, 243 F.3d 210 (5th Cir. 2001) .......................................................................... 5
Geary v. United States, 901 F.2d 679 (8th Cir. 1990) .................................................................... 8
Graham v. City of Albany, No. 1:08–CV–892 RFT, 2009 WL 4263510
(N.D.N.Y. Nov. 23, 2009) ........................................................................................................... 7
Gupta v. McGahey, 709 F.3d 1062 (11th Cir. 2013) ...................................................................... 5

iii

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Haggins v. City of St. Paul, No. 09–537 DWF/RLE, 2010 WL 1380134
(D. Minn. Mar. 1, 2010) .............................................................................................................. 7
Harmon v. St. Louis Cnty., 4:08–CV–226 SNLJ, 2009 WL 880024 (E.D.Mo. Mar. 30, 2009) .... 7
Harper v. Albert, 400 F.3d 1052 (7th Cir. 2005) .......................................................................... 12
Heck v. Humphrey, 512 U.S. 477 (1994) ..................................................................................... 15
Herschel v. Dyra, 365 F.2d 17 (7th Cir. 1966) ............................................................................... 8
Hewitt v. Helms, 459 U.S. 460 (1983) ........................................................................................... 7
Holly v. Boudreau, No. 03 C 8867, 2004 WL 609282 (N.D. Ill. Mar. 24, 2004) .......................... 7
Jackson v. Cerpa, 696 F. Supp. 2d 962 (N.D. Ill. 2010) ............................................................... 18
Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir. 2000) ............................................................. 14
Jarrett v. Twp. of Bensalem, 312 F. App’x 505 (3d Cir. 2009) ...................................................... 7
Jarrett v. Twp. of Bensalem, No. 07–1480, 2008 WL 818615 (E.D. Pa. Mar. 26, 2008) .............. 7
Kaehn v. Margolis, No. 90 C 5714, 1991 WL 47357 (N.D. Ill. Apr. 1, 1991) ............................... 8
Kentucky v. Graham, 473 U.S. 159 (1985) .................................................................................. 13
Khan v. Mukasey, 517 F.3d 513 (7th Cir. 2008) ............................................................................ 8
Khorrami v. Rolince, 493 F. Supp. 2d 1061 (N.D. Ill. 2007) ......................................................... 6
Kulakov v. INS, USA, No. 06-CV-0754SC, 2007 WL 1360728 (W.D.N.Y. May 7, 2007) ........ 16
Landrigan v. Warwick, 628 F.2d 736 (1st Cir. 1980) ..................................................................... 7
Latuszkin v. City of Chicago, 250 F.3d 502 (7th Cir. 2001) ........................................................ 14
Lawrence v. City of St. Paul, 740 F. Supp. 2d 1026 (D. Minn. 2010) ........................................... 7
Manley v. City of Chicago, 236 F.3d 392 (7th Cir. 2001) .............................................................. 4
Mannoia v. Farrow, 476 F.3d 453 (7th Cir. 2007) ........................................................................ 14
Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................................................. 11
McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011) ....................................................... 13
iv

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) ................................................................... 13
Munguia v. Illinois, No. 10 C 0055, 2010 WL 3172740 (N.D. Ill. Aug. 11, 2010) ..................... 18
Nino v. Johnson, No. 16-cv-2876, 2016 WL 6995563 (N.D. Ill. Nov. 30, 2016) .......................... 5
Nsinano v. Sessions, 236 F. Supp. 3d 1133 (C.D. Cal. 2017) .................................................... 5, 8
Ousmane v. Immigration & Customs Enf’t, No. C11-0344 BHS/KLS, 2011 WL 2470677
(W.D. Wash. May 23, 2011) ..................................................................................................... 15
Paroline v. United States, 134 S. Ct. 1710 (2014) .......................................................................... 9
Pearson v. Callahan, 555 U.S. 223 (2009) .................................................................................... 14
Puffer v. Allstate Ins. Co., 675 F.3d 709 (7th Cir. 2012) ............................................................. 16
Ramirez-Alvarez v. George, No. 1:13-CV-00949, 2014 WL 3845433
(M.D. Pa. Aug. 5, 2014) ........................................................................................................ 8, 15
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) .......................................... 5
Rochin v. California, 342 U.S. 165 (1952) ..................................................................................... 7
Rosado v. Gonzalez, 832 F.3d 714 (7th Cir. 2016) ...................................................................... 12
Safar v. Tingle, 859 F.3d 241 (4th Cir. 2017)........................................................................... 8, 12
Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786 (7th Cir. 2002) ...................................................... 5
Shock v. Tester, 405 F.2d 852 (8th Cir. 1969) ............................................................................... 7
Swan v. Bd. of Educ. of City of Chicago, No. 13 C 3623, 2013 WL 4401439
(N.D. Ill. Aug. 15, 2013) ............................................................................................... 16, 17, 18
Tun v. Whitticker, 398 F.3d 899 (7th Cir. 2005) ............................................................................ 7
United States v. Pinto, 1 F.3d 1069 (10th Cir. 1993)...................................................................... 8
United States v. Scott, 793 F.2d 117 (5th Cir. 1986) ...................................................................... 8
Velasco-Gutierrez v. Crossland, 732 F.2d 792 (10th Cir. 1984) .................................................... 8
Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................................................... 7
Welch v. Eli Lilly & Co., 585 F. App’x 911 (7th Cir. 2014)........................................................ 17
v

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White v. Tamlyn, 961 F.Supp. 1047 (E.D. Mich. 1997) ................................................................ 7
Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012) .................................................... 8, 9, 10
Wilson v. Giesen, 956 F.2d 738 (7th Cir. 1992) ............................................................................. 4
Yang v. Hardin, 37 F.3d 282 (7th Cir. 1994)................................................................................ 12
YHWHnewBN v. Leak, No. 11 C 5653, 2012 WL 5936285 (N.D. Ill. Nov. 27, 2012) ................ 7
Young Dong Kim v. Holder, 737 F.3d 1181 (7th Cir. 2013) ......................................................... 5
Zinermon v. Burch, 494 U.S. 113 (1990) ....................................................................................... 7
Statutes
740 ILCS 23/5 ......................................................................................................................... 16, 17
8 U.S.C. § 1252(g) .................................................................................................................. 4, 5, 6
42 U.S.C. § 1983 ........................................................................................................... 3, 10, 13, 15

vi

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INTRODUCTION
Plaintiff seeks to hold the City and individual Chicago Police Department (“CPD”)
officers liable for discretionary decisions made by federal agents to enforce federal immigration
laws. Immigration and Customs Enforcement (“ICE”) officials arrested Plaintiff and
commenced deportation proceedings, and Plaintiff has been unable to obtain discretionary relief
from deportation. Plaintiff contends that Defendants are liable for these federal decisions
because, over six years ago, CPD officers arrested him and erroneously designated him as a gang
member in a police report, and that this designation is why the federal government seeks to
deport him. Plaintiff claims that Defendants have thereby deprived him of his liberty in violation
of due process.
This claim fails for three reasons. First, it is barred. Plaintiff challenges CPD conduct
that occurred in 2011, which is outside the two-year statute of limitations. And to the extent that
Plaintiff challenges more recent federal decisions to seek his deportation, federal law makes clear
that this Court lacks jurisdiction. Rather, Plaintiff must challenge his deportation through the
immigration courts.
Second, even if Plaintiff could bring his claim here, Defendants did not violate due
process. Plaintiff does not claim that Defendants physically deprived him of his liberty; he bases
his claim solely on the allegation that CPD’s information about his gang membership is wrong.
Even if that allegation were true, inaccuracies in police records, or their consideration by federal
agents making discretionary immigration decisions, do not implicate a due process interest. Nor
does Plaintiff allege the required causal connection between the CPD information and the federal
government’s decisions. Further, due process does not require the additional procedures that
Plaintiff demands; he fails to explain how they could be workable, and he ignores that they
would harm CPD’s ability to collect important investigatory information.

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Third, even if Plaintiff could show a due process violation, he fails to allege a basis for
Defendants’ liability. To hold the City liable, Plaintiff must show that his allegedly inaccurate
police records resulted from an official City policy, but he fails to do so. And the individual
defendants enjoy qualified immunity, as it was not clearly established at the time of their conduct
that the creation of an inaccurate police record violated due process. The authority expressly
holds the opposite.
Finally, Plaintiff also fails to state a claim that the City’s alleged policy of including
black and Latino men in the CPD’s alleged “Gang Database” violates the Illinois Civil Rights
Act (“ICRA”). This claim fails because it is time-barred and because Plaintiff fails to identify a
specific City practice that caused a disparate impact, as required by ICRA. For all of these
reasons, Plaintiff’s Complaint should be dismissed in its entirety.
BACKGROUND
In January 2011, Plaintiff was arrested by Defendant CPD officers Fitzgerald and
McLean. Compl. ¶ 18. In the police report, the officers indicated that Plaintiff self-admitted to
being a gang member. Id. ¶ 19. They entered this information into CPD’s so-called “Gang
Database,” allegedly overseen by Defendant CPD officials Kennedy and Nagode. Id. ¶¶ 6-7, 14,
21. Plaintiff claims that the information is false, and that he was not a gang member. Id. ¶ 19.
In August 2011, Plaintiff was arrested by ICE as part of a nationwide effort to apprehend
and remove foreign-born members of violent street gangs. Id. ¶¶ 4, 23. He was released on
bond after being detained for about six months. Id. ¶¶ 34-35, 39. Plaintiff claims that ICE
targeted him based on CPD information identifying him as a gang member. Id. ¶¶ 4-5, 26-27.
Following his release, Plaintiff proceeded to challenge his deportation. Id. ¶ 41. In
December 2014, he filed an application for Deferred Action for Childhood Arrivals (“DACA”), a
form of immigration relief that allows certain undocumented individuals who arrived in the
2

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United States as minors to receive a deferral of deportation. Id. In October 2015, the U.S.
Citizenship and Immigration Services (“USCIS”) denied Plaintiff’s application. Id. ¶ 42.
USCIS stated that Plaintiff had not demonstrated that he warranted a favorable exercise of
prosecutorial discretion. Id. Although USCIS did not say this, Plaintiff believes that USCIS
denied his application because of his inclusion in CPD’s “Gang Database.” Id. ¶¶ 42-43.
Plaintiff also sought a U Visa, a nonimmigrant visa for crime victims who have been, or
are likely to be, helpful to law enforcement. Id. ¶ 45. USCIS’s decision to grant a U Visa is
discretionary. Id. As part of the U Visa application, the applicant must submit a certification
from a law enforcement agency confirming that the applicant has been, or is likely to be, helpful
in the investigation or prosecution of a crime. Id. Plaintiff claims that he is eligible to apply for
a U Visa because he was the victim of a robbery while working at a Chicago restaurant in 2012.
Id. ¶ 46. In February 2016, Plaintiff sought a U Visa certification from CPD, but CPD denied it
in September 2016 on the ground that Plaintiff was not the victim of the robbery; rather, the
victim was the business, and Plaintiff was only a witness. Id. ¶¶ 45, 47. Plaintiff claims that the
real reason CPD denied the certification is that it considers him to be a gang member. Id. ¶ 49.
ARGUMENT
I.

Plaintiff’s Section 1983 Claims Are Barred (Counts I-IV).
Plaintiff challenges his identification as a gang member during a CPD arrest six years

ago, and the more recent decisions of federal officials to enforce immigration laws against him.
He is barred from pursuing either set of claims against Defendants.
A.

Plaintiff’s challenge to the content of his CPD records is time-barred.

Plaintiff’s suit is based on Defendants Fitzgerald and McLean’s alleged decision, in 2011,
to include information about his gang affiliation in an arrest report. That conduct occurred well
outside the two year limitations period for section 1983 claims in Illinois, and the claim is
3

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therefore time barred. Ashafa v. City of Chicago, 146 F.3d 459, 461-62 (7th Cir. 1998); Manley
v. City of Chicago, 236 F.3d 392, 395 (7th Cir. 2001). The statute of limitations accrues when a
plaintiff knows or has reason to know of the injury giving rise to the cause of action. Wilson v.
Giesen, 956 F.2d 738, 740 (7th Cir. 1992). Plaintiff had reason to know of his alleged injury in
2011 because (1) in January 2011 he was arrested and the police report was generated, and (2) in
August 2011, federal immigration agents arrested him based on the information in the report.
Compl. ¶¶ 18-19, 26. By Plaintiff’s own characterization, his January 2011 CPD arrest
“triggered” the “chain of events” that forms the basis for this lawsuit. Id. ¶ 7. Even if he later
discovered that the injury stemming from the arrest was more extensive than he initially thought,
that is no basis for tolling the limitations period. See Devbrow v. Kalu, 705 F.3d 765, 768 (7th
Cir. 2013) (“The statute of limitations starts to run when the plaintiff discovers his injury and its
cause even if the full extent or severity of the injury is not yet known.”); Chardon v. Fernandez,
454 U.S. 6, 8 (1981) (a claim accrues at “the time of the discriminatory act, not the point at
which the consequences of the act become painful”).
B.

The Court lacks jurisdiction over Plaintiff’s challenges to conduct that
occurred within the two-year limitation period.

To the extent that Plaintiff attempts to pin the more recent federal decisions regarding his
immigration status on his 2011 CPD arrest, those claims are also barred. Section 1252(g) of the
Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1252(g), makes clear that this Court
lacks jurisdiction to entertain such claims. That provision states in relevant part that “no court
shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this chapter.”

4

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This bar applies to claims, like Plaintiff’s, that federal immigration officials took certain
information into account in deciding to detain and remove an alien. See Young Dong Kim v.
Holder, 737 F.3d 1181, 1185 (7th Cir. 2013) (“[E]xercises of prosecutorial discretion by the
DHS generally are immune from judicial review.”). The bar also applies to claims arising from
decisions not to grant deferred action or other discretionary relief, and therefore precludes review
of Plaintiff’s claims that he was not able to obtain DACA or a U Visa. See Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 485 (1999) (“Section 1252(g) seems clearly designed
to give some measure of protection to ‘no deferred action’ decisions and similar discretionary
determinations”); Nsinano v. Sessions, 236 F. Supp. 3d 1133, 1137-38 (C.D. Cal. 2017) (holding
that the INA bars review of discretionary decisions to grant or deny U Visas).
It does not matter that Plaintiff styles his claims as due process challenges against
Defendants, rather than challenges to the federal immigration decisions themselves. Section
1252(g) “does not differentiate among kinds of relief,” but instead “interdicts all judicial review
‘arising from’” the listed federal actions. Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786, 787
(7th Cir. 2002). A plaintiff “cannot evade § 1252(g) by attempting to re-characterize a claim
that, at its core, attacks the decision to execute a removal order.” Nino v. Johnson, No. 16-cv2876, 2016 WL 6995563, at *4 (N.D. Ill. Nov. 30, 2016). See also Gupta v. McGahey, 709 F.3d
1062, 1065 (11th Cir. 2013) (Bivens claim against ICE agents was barred because “[s]ecuring an
alien while awaiting a removal determination constitutes an action taken to commence
proceedings”); Foster v. Townsley, 243 F.3d 210, 214-15 (5th Cir. 2001) (“The particular acts
that form the basis of Foster’s lawsuit arise from the officials’ decision to execute his removal
order. His claims of excessive force, denial of due process, denial of equal protection and
retaliation are all directly connected to the execution of the deportation order . . . . [and] fall

5

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within the ambit of section 1252(g) and are precluded from judicial review.”); Khorrami v.
Rolince, 493 F. Supp. 2d 1061, 1067-68 (N.D. Ill. 2007) (Fourth Amendment claim was barred
because “[t]he arrest/detention arose from the decision to commence proceedings”); Arias v.
U.S. Immigration & Customs Enf’t, Civ. No. 07-1959 ADM/JSM, 2008 WL 1827604, at *8 (D.
Minn. Apr. 23, 2008) (“§ 1252(g) bars review of the Removed Plaintiffs’ claims [alleging
constitutional violations by ICE agents]”).1
Here, the core of Plaintiff’s claim is that the alleged misconduct recounted in the
Complaint has “left [him] with zero options to fight his removal case” and he is therefore subject
to deportation. Compl. ¶ 51. The claim thus falls squarely within the INA’s jurisdictional bar.
II.

Plaintiff Fails To State A Due Process Claim Against Defendants Based On The
Creation Of CPD Records (Counts I-IV).
Plaintiff’s due process claim is also subject to dismissal because it fails to state a claim

against Defendants. Plaintiff contends that Defendants violated his due process rights by
including information in CPD records that erroneously identified him as a gang member, and
then not notifying him of that fact or allowing him to challenge it. This does not state a due
process violation.
A.

Defendants did not deprive Plaintiff of a protected liberty interest.

A threshold requirement for a due process claim is that the plaintiff was deprived of a
liberty interest that is protected by the Constitution. See Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 571 (1972); Dave v. Ashcroft, 363 F.3d 649, 652-53 (7th Cir. 2004).2 But “only a

1

For similar applications of the § 1252(g) bar, see, e.g., Alvarez v. U.S. Immigration & Customs Enf’t,
818 F.3d 1194, 1204 (11th Cir. 2016); De La Teja v. United States, 321 F. 3d 1357, 1365 (11th Cir.
2003); DeSousa v. Reno, 190 F.3d 175, 182 (3d Cir. 1999); Belleri v. United States, No. 10-81527-CIV,
2013 WL 12134099, at *2 (S.D. Fla. Aug. 26, 2013).
2

Although Plaintiff does not specify whether he brings a procedural or substantive due process claim, he
claims that CPD failed to provide “procedural safeguards” to prevent inaccuracies in its records. Compl.

6

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limited range of interests” qualify as protected liberty interests. Hewitt v. Helms, 459 U.S. 460,
466 (1983), overruled on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Here, even
though CPD strives for accuracy in its reports and understands the import of police records,
numerous courts have held that, when inaccuracies occur, these do not implicate a due process
interest. See, e.g., Holly v. Boudreau, No. 03 C 8867, 2004 WL 609282, at *3 (N.D. Ill. Mar. 24,
2004), aff’d, 103 F. App’x 36 (7th Cir. 2004) (“[T]here is no constitutional right to accurate
police reports.”); YHWHnewBN v. Leak, No. 11 C 5653, 2012 WL 5936285, at *2 (N.D. Ill.
Nov. 27, 2012) (“[T]he Constitution does not . . . give Plaintiff an enforceable interest in . . . the
accuracy of police reports.”); Lawrence v. City of St. Paul, 740 F. Supp. 2d 1026, 1038-39 (D.
Minn. 2010) (“even if police defendants knowingly inserted false information in their reports,
[plaintiff] was not deprived of a constitutionally protected interest because of that false
information”).3 Likewise, due process provides no guarantee against police errors. See e.g.,

¶ 65. As a challenge to insufficient procedure is the hallmark of a procedural due process claim, see
Zinermon v. Burch, 494 U.S. 113, 125 (1990), the City treats the claim as such. A substantive due
process claim, however, would also fail. The scope of substantive due process “is very limited.” Tun v.
Whitticker, 398 F.3d 899, 900-02 (7th Cir. 2005). It provides “protection against government
interference with certain fundamental rights and liberty interests” that are “deeply rooted in this Nation’s
history and tradition,” such as marriage, reproduction, and bodily integrity. Washington v. Glucksberg,
521 U.S. 702, 720-21 (1997). As explained infra, Plaintiff has identified no liberty interest to support a
due process claim. Furthermore, for a plaintiff to recover on a substantive due process claim, “[a]
government entity must have exercised its power without reasonable justification in a manner that ‘shocks
the conscience.”’ Bettendorf v. St. Croix Cnty., 631 F.3d 421, 426 (7th Cir. 2011) (quoting Rochin v.
California, 342 U.S. 165, 172 (1952)). Plaintiff alleges no conscience-shocking action on Defendants’
part here.
3

For similar holdings, see, e.g., Jarrett v. Twp. of Bensalem, 312 F. App’x 505, 507 (3d Cir. 2009);
Landrigan v. Warwick, 628 F.2d 736, 744 (1st Cir. 1980); Shock v. Tester, 405 F.2d 852, 855 (8th Cir.
1969); Haggins v. City of St. Paul, No. 09–537 DWF/RLE, 2010 WL 1380134, at *12 (D. Minn. Mar. 1,
2010); Graham v. City of Albany, No. 1:08–CV–892 RFT, 2009 WL 4263510, at *9 (N.D.N.Y. Nov. 23,
2009); Harmon v. St. Louis Cnty., 4:08–CV–226 SNLJ, 2009 WL 880024, at *3 (E.D.Mo. Mar. 30,
2009); Jarrett v. Twp. of Bensalem, No. 07–1480, 2008 WL 818615, at *3 (E.D. Pa. Mar. 26, 2008);
Culbreath v. Morgan, 3:05–CV–280 GTE, 2006 WL 2331111, at *3 (E.D. Ark. Aug. 9, 2006); Bush v.
City of Philadelphia, No. 98–0994, 1999 WL 554585, at *4 (E.D. Pa. 1999); White v. Tamlyn, 961
F.Supp. 1047, 1056-57 (E.D. Mich. 1997); Bailey v. Tricolla, No. CV–94–4597 CPS, 1995 WL 548714,
at *5 (E.D.N.Y. Sept. 12, 1995).

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Devereaux v. Abbey, 263 F.3d 1070, 1077-78 (9th Cir. 2001) (en banc); Safar v. Tingle, 859
F.3d 241, 245 (4th Cir. 2017) (upholding dismissal of due process claim against police officer
who failed to withdraw arrest warrant after learning that no crime had occurred, even though the
error caused the plaintiff to be arrested and jailed).4 Indeed, there is no right to have arrest and
criminal records expunged, even if an individual has been acquitted or charges dropped. See
Herschel v. Dyra, 365 F.2d 17, 20 (7th Cir. 1966). See also United States v. Pinto, 1 F.3d 1069,
1070-71 (10th Cir. 1993); Geary v. United States, 901 F.2d 679, 680 (8th Cir. 1990); United
States v. Scott, 793 F.2d 117, 118 (5th Cir. 1986); Kaehn v. Margolis, No. 90 C 5714, 1991 WL
47357, at *2 (N.D. Ill. Apr. 1, 1991) (“[P]laintiffs have stated no viable constitutional claim for
the right to expungement of the records retained by the Illinois State Police.”).
As to the federal decisions described in the Complaint, those are discretionary, and
therefore cannot form the basis of a due process interest. See Dandan v. Ashcroft, 339 F.3d 567,
575-76 (7th Cir. 2003). See also Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 603 (7th Cir.
2014); Darif v. Holder, 739 F.3d 329, 336 (7th Cir. 2014); Khan v. Mukasey, 517 F.3d 513, 518
(7th Cir. 2008); Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir. 1984); Nsinano,
236 F. Supp. 3d at 1138. See also Ramirez-Alvarez v. George, No. 1:13-CV-00949, 2014 WL
3845433, at **4-5 (M.D. Pa. Aug. 5, 2014) (failure to correct information regarding gang
membership contained in federal records was not a due process violation, despite plaintiff’s
claim that ICE relied on it to improperly detain him).
4

In certain criminal contexts, incorrect information in police records may give rise to a constitutional
violation – such as when intentionally fabricated evidence is used to deprive a criminal defendant of a fair
trial, see, e.g., Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012), or when exculpatory
evidence is deliberately withheld, depriving the defendant of a fair trial, see Brady v. Maryland, 373 U.S.
83, 87 (1963). Both types of claims arise when the evidence at issue is material to criminal guilt and
impacts the right to a fair criminal trial. See Brady, 373 U.S. at 87; Whitlock, 682 F.3d at 583. These
scenarios are not present here. An immigration removal proceeding “is a civil, not criminal, matter.”
Arizona v. United States, 567 U.S. 387, 396 (2012).

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Moreover, Defendants are not causally responsible for the federal decisions. Causation is
a standard element of liability for a constitutional tort and “includes two requirements: (1) the
act must be the ‘cause-in-fact’ of the injury, i.e., ‘the injury would not have occurred absent the
conduct’; and (2) the act must be the ‘proximate cause,’ . . . of the injury.” Whitlock, 682 F.3d at
582. Plaintiff can show neither.
As to cause-in-fact (also known as “but for” causation), Plaintiff alleges no facts
supporting an inference that any Defendant, or even the underlying CPD records, played a role in
his inability to obtain relief from deportation; rather, his DACA application and U Visa
certification were denied for other reasons. See Compl. ¶¶ 42, 47. Plaintiff’s speculation that his
CPD records influenced both decisions is too “murky” to establish the requisite link. See Cnty.
of Los Angeles v. Mendez, 137 S. Ct. 1539, 1549 (2017) (remanding case for lower courts to
“revisit the question whether proximate cause permits respondents to recover damages”).
Plaintiff also cannot show that Defendants were the proximate cause of the federal
decisions. To show proximate cause, there must be a “direct relation” between Defendants’
actions and Plaintiff’s injury, Paroline v. United States, 134 S. Ct. 1710, 1719 (2014) (citations
omitted), meaning “the injury is of a type that a reasonable person would see as a likely result of
his or her conduct,” Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 640 n. 1 (7th Cir. 2008)
(citation and quotation marks omitted). Here, Plaintiff does not allege facts showing that his
immigration treatment was a foreseeable consequence of CPD records created six years ago.
Indeed, Plaintiff does not allege that any Defendant had any knowledge that Plaintiff is an alien,
much less that they provided information to ICE with the knowledge or intent that it would
trigger deportation proceedings. And the federal decisions to detain and remove Plaintiff are
independent intervening acts that interrupted any causal link between the gang information

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collected by CPD and his injuries. See Whitlock, 682 F.3d at 584 (explaining that a
“superseding cause” is “some action of a third party that makes the plaintiff’s injury an
unforeseeable consequence of the defendant’s negligence”) (citation omitted).5 Given the broad
federal discretion to enforce (or not enforce) federal immigration law, see Arizona, 567 U.S. at
396, it was not foreseeable to Defendants that federal officials would actually decide to enforce
against Plaintiff at all, much less on the basis of CPD records.
For all of these reasons, Plaintiff fails to allege a due process interest that was violated by
Defendants.
B.

No additional process is required.

Plaintiff’s due process claim fails for the separate reason that due process does not
require Plaintiff’s demanded procedures before gang affiliation information can be included in
CPD records. Plaintiff contends that CPD must (i) inform people when CPD decides that they
are affiliated with a gang, (ii) present them with the evidence justifying the decision, and (iii)
allow them an opportunity to challenge CPD’s decision. Compl. ¶ 22. Only then could CPD
include the information in its records. Due process does not require this, as Plaintiff’s proposed
“process” is unworkable and would undermine CPD’s ability to gather important information.
To determine the process due in a particular situation, courts assess four factors: (1) “the
private interest that will be affected by the official action;” (2) “the risk of an erroneous
deprivation of such interest through the procedures used;” (3) “the probable value, if any, of
additional or substitute procedural safeguards;” and (4) “the Government’s interest, including the

5

For this reason, Plaintiff also cannot show his injuries resulted from state action, which is a necessary
predicate for a § 1983 claim. See Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir. 1976) (holding that
“the mere presence of state agents in a support status does not turn a federal law enforcement endeavor
into state action sufficient to support a § 1983 claim”).

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function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Here, the fourth factor is determinative. CPD has a strong interest in maintaining
information about gang affiliations. Even if a person who comes into contact with CPD is not an
active gang member, or CPD is unable to confirm his or her affiliation, keeping records about
possible gang relationships can provide investigatory leads and help solve or prevent violent
gang-related crime.
Plaintiff proposes an on-the-spot review before any notes can be written by officers, and
proposes no workable process that would preserve CPD’s ability to gather this crucial
information. Good policework calls for officers to note information , even if not conclusively
established, that might be pertinent to a given arrest or to later efforts to investigate and combat
crime. But under Plaintiff’s theory, a CPD officer in the field would need to first hold a minitrial before recording information about a suspect’s potential gang affiliation. Administration of
this mini-trial would saddle CPD with fiscal and logistical burdens and bring day-to-day
policework to a halt. A task as routine as filling out an arrest record or investigative report
would be delayed pending a full airing of whether a person has gang ties. And Plaintiff’s theory
is not limited to gang affiliation; it applies to any piece of information that a person might
believe to be erroneous but that a beat officer believes to be pertinent to CPD’s crime-fighting
mission. Further, and regardless of when a hearing might be held, Plaintiff fails to explain how
these mini-trials would be conducted. Plaintiff offers no guidance on how much weight CPD is
to give to a person’s counter-evidence, or what the ultimate standard of proof should be. This
failure is telling, since most suspects are likely to deny any gang affiliation and demand that
CPD refrain from including such information.

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The remaining Mathews factors also favor the City. As to the first, and as explained
above, Plaintiff’s interest in avoiding removal proceedings is subject to federal discretion, not
City actions. And as to the second and third, whether Plaintiff is deportable is governed not by
CPD’s information, but by the standards of federal immigration law, and Plaintiff has process
available to him via the immigration courts to contest his deportability under those standards.
See Compl. ¶ 51. Likewise, in those instances where gang membership is material to a criminal
offense, process is available through normal, existing criminal procedure to challenge the
correctness of CPD’s information.
In short, Plaintiff has not demonstrated the feasibility of the additional process he
demands, and he ignores the value to CPD in maintaining information that can help it investigate
and reduce gang-related crime. See Safar, 859 F.3d at 247 (“To say that an affirmative duty
attached here [to retract an arrest warrant] fails to emphasize the limits of such an obligation and
how it might function in practice.”). For these reasons, Plaintiff’s due process claims based on
the creation of police records should be dismissed. And because Plaintiff’s due process rights
were not violated, he has no claim against the Defendants Fitzgerald and McLean in Count III
for failing to intervene to stop such a violation. See Harper v. Albert, 400 F.3d 1052, 1064 (7th
Cir. 2005); Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016) (“Because the claim of false
arrest is time-barred, the derivative claim of a failure to intervene during the false arrest is also
time-barred.”).6

6

Even had Plaintiff alleged a constitutional violation, his failure to intervene claim in Count III would be
subject to dismissal. An officer who fails to intervene to prevent another from violating a person’s rights
is liable if the officer had reason to know of the violation and a realistic opportunity to prevent the harm.
See Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Here, Plaintiff’s claim is unsupported by any
factual allegations suggesting that the officers were aware of or could have prevented a constitutional
violation. See, e.g., Flint v. City of Milwaukee, 91 F. Supp. 3d 1032, 1063 (E.D. Wis. 2015) (rejecting
claim that officer who approved a probable cause statement containing “false facts” had a duty to

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III.

Plaintiff Fails To State A Monell Claim Against The City (Counts I & IV).
In Count IV, Plaintiff seeks to hold the City liable, and in Count I, Plaintiff seeks relief

against Superintendent Johnson in his official capacity, which is treated as a claim against the
City. See Kentucky v. Graham, 473 U.S. 159, 166 (1985).7 These claims against the City should
be dismissed for the independent reason that under section 1983, the City may not be held
vicariously liable under a respondeat superior theory for the acts of its employees. Rather, the
City is liable only if Plaintiff establishes that the allegedly unconstitutional acts by individual
police officers were committed pursuant to a City policy. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691, 694 (1978); Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998).
A plaintiff can establish the requisite policy by showing either (1) an express City policy; (2) a
widespread municipal practice “so permanent and well settled as to constitute a custom or usage
with the force of law”; or (3) the action of a person with “final policymaking authority.” Baskin,
138 F.3d at 704-05 (internal quotations omitted); see also Monell, 436 U.S. at 690-91. In
showing this, conclusory allegations will not suffice. Plaintiff must “‘plead[] factual content that
allows the court to draw the reasonable inference’ that the City maintained a policy, custom, or
practice” that deprived him of his constitutional rights. McCauley v. City of Chicago, 671 F.3d
611, 616 (7th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiff fails to do this. While Defendants dispute that gang affiliation information is
recorded by CPD inaccurately or without justification, or that such activity, if it occurs, violates
due process, even if Plaintiff were correct on both of these fronts, Plaintiff fails to allege facts

intervene because “[t]his task, alone, would not provide a sufficient basis to alert her to a constitutional
violation; nor is it clear what exactly she could have done, in concrete terms, to intervene”).
7

Plaintiff also purports to sue Defendants Kennedy and Nagode in their official capacities. The official
capacity claims against these defendants should likewise be treated as claims against the City.

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showing that such activity results from an express City policy or was ratified by a person with
final policymaking authority. See Compl. ¶¶ 82-83. And while Plaintiff contends that, in recent
months, other people have been arrested by ICE based on erroneous gang information in CPD
records, see id. ¶ 85, this is insufficient to show a widespread practice that can be treated as
having the force of law. See Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005)
(holding that allegations of more than 200 incidents of misuse of pepper spray, standing alone,
was insufficient to establish a widespread practice under Monell); Latuszkin v. City of Chicago,
250 F.3d 502, 505 (7th Cir. 2001) (affirming dismissal of complaint where plaintiffs failed to
allege facts showing that municipal policymakers were aware of alleged violations).
Accordingly, Plaintiff has failed to meet the requirements for pleading a claim against the City,
and his claims against the City should be dismissed.
IV.

Qualified Immunity Bars Plaintiff’s Claims Against The Defendants Sued In Their
Individual Capacities (Counts II and III).
Even if Plaintiff could state a due process claim, his claims against the Officer

Defendants should be dismissed because they enjoy qualified immunity. Qualified immunity
shields police officers “who act in ways they reasonably believe to be lawful,” and they are liable
only if their conduct violates a clearly established right. Ewell v. Toney, 853 F.3d 911, 919 (7th
Cir. 2017) (citations and internal quotation marks omitted). Once a qualified immunity defense
is raised, the plaintiff carries the burden of defeating it. Mannoia v. Farrow, 476 F.3d 453, 457
(7th Cir. 2007). To do so here, Plaintiff must show that (1) Plaintiff has alleged facts that
establish a constitutional violation, and (2) case law existing at the time of Defendants’ alleged
conduct clearly established that their conduct violated the law. See Pearson v. Callahan, 555
U.S. 223, 232 (2009); Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000). The Court

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may properly consider these factors on a motion to dismiss under Rule 12(b)(6). See Iqbal, 556
U.S. 662; Ashcroft v. al-Kidd, 563 U.S. 731 (2011). The Complaint fails in both respects.
As explained above, Plaintiff fails to allege the elements of a procedural due process
claim, because he had no protected liberty interest that was harmed by Defendants. But even if
the Court were to conclude that the officers acted unreasonably in including information about
suspected gang affiliation in CPD investigative records (and they did not), they would still be
shielded from liability because the law existing at the time of their conduct did not clearly
establish that maintaining records that include information about gang membership, even if
incorrect, violates due process. Indeed, the case law holds to the contrary. See, e.g., RamirezAlvarez, 2014 WL 3845433, at *5; supra at 6-8. As Plaintiff cannot meet his burden of showing
that Defendants violated clearly established law, Counts II & III should be dismissed.
V.

Any Damages Claim Based On The Federal Decisions Is Barred By Heck.
To the extent that Plaintiff can bring a due process claim against Defendants based on the

federal decisions to seek his deportation (and, as explained above, he cannot), the rule of Heck v.
Humphrey, 512 U.S. 477 (1994), bars him from obtaining damages from Defendants. In Heck,
the Supreme Court held that no cause of action exists under section 1983 for actions that, if
proven, would “necessarily imply” the invalidity of an underlying conviction or sentence, unless
that conviction or sentence is first invalidated. Id. at 487. The purpose of the Heck rule is to
preclude individuals from collaterally attacking their convictions or sentences in tort actions.
See id. Federal courts have applied this rule to bar claims seeking damages for unlawful
immigration detention because success on the claim would imply the invalidity of the detention.
See Cohen v. Clemens, 321 F. App’x 739, 742 (10th Cir. 2009); Ousmane v. Immigration &
Customs Enf’t, No. C11-0344 BHS/KLS, 2011 WL 2470677, at *3 (W.D. Wash. May 23, 2011),

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report and recommendation adopted, No. C11-344BHS, 2011 WL 2448229 (W.D. Wash. June
20, 2011); Abiodun v. Maurer, No. CIVA No. 07-CV-02431-BNB, 2007 WL 4459166, at *2 (D.
Colo. Dec. 14, 2007); Kulakov v. INS, USA, No. 06-CV-0754SC, 2007 WL 1360728, at *1
(W.D.N.Y. May 7, 2007); Calix-Chavarria v. Gonzalez, CIV. No. 1:CV-06-0820, 2006 WL
1751783, at *2 (M.D. Pa. June 22, 2006). Under Heck, a cause of action for damages caused by
an immigration detention is possible only if a court invalidated the detention. Daniel v. United
States, No. 4:14-CV-00443-AKK-TMP, 2015 WL 1334029, at *4 (N.D. Ala. Mar. 24, 2015). As
that has not occurred here, Plaintiff cannot seek damages based on the decisions of federal
authorities.
VI.

Plaintiff Fails To State An ICRA Claim (Count V).
In Count V, Plaintiff seeks damages against the City under ICRA, 740 ILCS 23/5.

Should the Court exercise supplemental jurisdiction over this state-law claim, the claim should
be dismissed as time-barred under ICRA’s two-year statute of limitations. See 740 ILCS 23/5(b).
But even if the claim were timely, Plaintiff fails to state a claim.
ICRA provides that no unit of local government shall “utilize criteria or methods of
administration that have the effect of subjecting individuals to discrimination based on their race,
color, national origin, or gender.” 740 ILCS 23/5(a)(2). To state a claim under ICRA, Plaintiff
must “‘isolat[e] and identify[] the specific . . . practices that are allegedly responsible for any
observed statistical disparities.’” Swan v. Bd. of Educ. of City of Chicago, No. 13 C 3623, 2013
WL 4401439, at *19 (N.D. Ill. Aug. 15, 2013) (quoting Puffer v. Allstate Ins. Co., 675 F.3d 709,
717 (7th Cir. 2012)). “Simply pointing to a generalized policy that leads to such a disparity is
not enough.” Id. at *19. See also Coal. for Safe Chicago Cmtys. v. Vill. of Riverdale, No. 2015
CH 10390, 2016 WL 1077293, at **12-13 (Ill. Cir. Ct. Feb. 25, 2016) (dismissing ICRA claim

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for failure to challenge “an identifiable, facially-neutral policy” of the defendants). And even if
Plaintiff clears this hurdle, he must also establish that the identified practice is the cause of the
disparate impact by offering statistical evidence sufficient to show that the practice has injured
him because of his membership in a protected group. Swan, 2013 WL 4401439, at *19. Plaintiff
fails to meet these pleading requirements.
First, Plaintiff fails to identify a specific City practice. See Welch v. Eli Lilly & Co.,
585 F. App’x 911, 913 (7th Cir. 2014); Swan, 2013 WL 4401439, at *19. Plaintiff claims that
the City has a “policy and practice of including black and Latino men who have not participated
in any gang activity in the Gang Database for no justifiable reason other than their race and
national origin.” Compl. ¶¶ 92-93. But he identifies no such specific practice or policy. At
most, Plaintiff challenges a multitude of individual, day-to-day decisions by police officers to
record gang affiliation information based on the facts available to them in a particular situation in
the field.8 It follows that Plaintiff’s allegations do not support an inference that any racial or
ethnic disparities in who is identified by CPD as potentially affiliated with a gang are “caused”
by a specific practice attributable to the City. Indeed, such disparities may be explained by any
number of factors other than the City’s practices, such as the demographics of gang membership,
arrest patterns, and targeted investigations that focus on specific gangs. See Swan, 2013 WL
4401439, at *19 (“Failure to identify the specific practices could lead to [defendants] being held
liable for the myriad of innocent causes that may lead to statistical imbalances.”).
Second, even if Plaintiff had alleged a specific policy, he fails to allege facts sufficient to
demonstrate that such policy results in a disparate impact. For one, Plaintiff identifies no facts
8

Relatedly, Plaintiff fails to allege that CPD utilizes a “criteria” or “method of administration,” as
required to show an ICRA violation. See 740 ILCS 23/5(a)(2). A criteria or method of administration
implies a deliberate decision to grant or deny individuals some benefit. CPD officers including
individuals as potential gang affiliates in internal records is not a criteria or method of administration, but
simply information gathered as part of police investigations.

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showing that, in Chicago, internal police records concerning gang affiliation are created or
maintained on a disparate basis. The Complaint is devoid of any allegations about, inter alia,
actual gang membership rates by race and ethnicity in Chicago, the percentage of gang members
that are identified in CPD records, or numbers of individuals who are improperly identified as
gang-affiliated. Moreover, even if Plaintiff pointed to statistical evidence of disparate rates of
inclusion of gang information in CPD records, he alleges no facts showing that such disparity in
recordkeeping results in tangible, adverse effects on black or Latino men on a disparate basis in
Chicago. Indeed, even the purported statistical disparities in other jurisdictions that Plaintiff
relies upon address only the rates of inclusion of gang information in internal police records, not
the utilization of such information adversely against black and Latino men in a disparate way.
Plaintiff’s ICRA claim should be dismissed for these reasons as well. See Adams v. City of
Indianapolis, 742 F.3d 720, 733 (7th Cir. 2014) (affirming dismissal of disparate impact
complaint stating “[t]he far more serious problem is the complete lack of factual content
directed at disparate-impact liability.”); Jackson v. Cerpa, 696 F. Supp. 2d 962, 964 (N.D. Ill.
2010) (granting judgment in favor of defendant as a matter of law where plaintiff “offered only
an anecdotal account, rather than any statistically meaningful showing of disparate impact on
African–American–owned enterprises” and noting that “[a] statistical analysis must cross a
threshold of reliability before it can show even a prima facie case of disparate impact.”). 9
Finally, to state an ICRA disparate impact claim, Plaintiff must “show that [he has] been
subjected to an adverse action.” Swan, 2013 WL 4401439, at *21. He has failed to do so. For

9

Plaintiff likewise fails to identify any appropriate measure of disparate impact. To state a claim for
disparate impact, a plaintiff must allege “some appropriate measure that can adequately capture how a
plaintiff is treated differently as a member of a protected group.” Munguia v. Illinois, No. 10 C 0055,
2010 WL 3172740, at *9 (N.D. Ill. Aug. 11, 2010). Where the plaintiff fails to meet this burden, he has
“fail[ed] to adequately allege a racially disparate effect,” and the claim should be dismissed. Id. at **1112.

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the reasons explained above, Plaintiff has failed to show that he was harmed by any conduct of
Defendants. See Farrell v. Butler Univ., 421 F.3d 609, 617 (7th Cir. 2005) (“To have standing to
bring a disparate impact claim, a plaintiff must show that she was personally injured by the
defendant’s alleged discriminatory practice.”); Carpenter v. Bd. of Regents of Univ. of Wis. Sys.,
728 F.2d 911, 915 (7th Cir. 1984) (“[Plaintiff] simply failed to prove that the practices of which
he complained had the discriminatory effect of which he complained.”).
VII.

Plaintiff’s Indemnification Claim Should Be Dismissed (Count VI).
Count VI seeks to hold the City liable for “any tort judgment for compensatory damages”

for which the Individual Defendants may be found liable within the scope of their employment,
under a theory of indemnification. Compl. ¶¶ 96-100. The indemnification claim is viable only
if the Defendants are liable for wrongdoing in their individual capacities, and, for the reasons set
forth above, the Complaint fails to state any claim against the Defendants. Count VI should
therefore be dismissed.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court dismiss
Plaintiff’s Complaint with prejudice and grant Defendants such further relief as the Court deems
just and appropriate.
Date: December 22, 2017

Respectfully submitted,

Andrew W. Worseck
Ellen W. McLaughlin
Tara D. Kennedy
City of Chicago, Department of Law
Constitutional and Commercial
Litigation Division
30 North LaSalle Street, Suite 1230
Chicago, Illinois 60602
#(312) 744-7129 / 742-5147 / 744-9028

EDWARD N. SISKEL,
Corporation Counsel for the City of Chicago

By:

19

/s/ Ellen McLaughlin
Assistant Corporation Counsel