IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
v. Civil Action No. 06-0014
Officer Ryan Clay, &
a municipal corporation,
Plaintiff’s Reply Brief To Defendant’s Motion
To Dismiss Pursuant to Federal Rule 12(b)(6)
NOW COMES the Plaintiff’s, AUSTIN BONANZA (“Bananza”), a citizen of the United Stated domiciled in Illinois, by and through his attorneys, CHEATEM & LIE, reply to Defendants’, POLICE OFFICER RYAN CLAY (“Clay”) and THE CITY OF KENILWORTH (“Kenilworth), a municipal corporation, Motion to Dismiss pursuant to Federal Rule 12(b)(6) and in support of his cause of action states the following:
Plaintiff’s Complaint commencing this cause of action was brought before the United States District Court, Northern District of Illinois, before the Honorable Justice Topic on October 24, 2006. On November 16, 2006, Defendants filed a Motion to Dismiss Plaintiffs' Complaint, pursuant to FED. R. CIV. P. 12(b)(6) and 12(c). This motion has been scheduled for hearing on November 21, 2006.
I. Standard For A Motion to Dismiss
“The Court should
not grant a motion to dismiss unless
it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the
complaint. Brown v. Budz, 398 F.3d 904, 908-909 (7th Cir.2005). ‘[I]f
it is possible to hypothesize a set of facts, consistent with the complaint,
that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate.’ Brown, 398 F.3d at 909”. Key v. Illinois Dept. of State Police,
2006 WL 3229999
Plaintiff’s Affidavit and the Deposition of Officer Clay provide sufficient evidence to meet the threshold requirement of the burden of production, therefore the trier of fact could decide that Plaintiff is entitled to relief and this matter should proceed to trial.
A. Viewing all claims in a light most favorable to the Plaintiff, then as a matter of law, Plaintiff is entitled to redress.
has been stipulated to that Defendant, Ryan Clay, was at all times relevant
hereto an officer of the Kenilworth Police Department and therefore an agent of Co-Defendant,
Mr. Bonanza’s affidavit attested to his having a valid driver’s license and the Defendant, in his deposition, offered no scientific evidence that Mr. Bonanza was under the influence or that he drove his car in a dangerous manner. Thereafter, accepting all allegations previously stated in Plaintiff’s Complaint as fact, as is the appropriate standard for deciding that there is no legal claim upon which relief may be granted, Bonanza was lawfully driving his motor vehicle when without probable cause he was stopped by Officer Clay.
The lack of probable cause made the stop an illegal seizure of Bonanza’s person and thereby violated the 4th Amendment protection against unreasonable seizures and deprived Mr. Bonanza of his Constitutional rights. 28 U.S.C. § 1983 provides that if such depravations should occur those persons responsible “shall be liable to the party injured in an action at law.”
The Plaintiff by not consenting to the search and having asserted his privilege to drive on the road with a valid driver’s license has met burden of production that he was entitled to drive on the road and he could do so without fear of an unreasonable seizure by an individual acting under the color of state law. The burden therefore has shifted to the Defendants. Defendants have made some subjective observations that could support their defense, for example that Mr. Bonanza was driving “erratically”; however, Clay’s own deposition indicates that Mr. Bonanza had total control of his vehicle as “he pulled over very quickly.” Therefore, as the defendants have not met the threshold to have this matter decided by summary judgment because there are a great deal of controversial facts, this matter should be decided after formal proceedings.
i. Plaintiff’s claim having original jurisdiction in the Federal District Court is an appropriate venue for Plaintiff’s supplemental claims of battery and assault pursuant to 28 U.S.C. § 1367(A).
a. The tort of battery is a claim for which relief may be granted.
Plaintiff’s damages stemming from a common nucleus of operative facts, the illegal seizure of Plaintiff and his wallet by Defendant Clay as agent of Co-Defendant Kenilworth, allows for this court to hear all the claims against the Defendants. Once again accepting all allegations as fact, Mr. Bonanza peacefully acquiesced to Clay’s demands. Clay responded by intentionally caused offensive contact to Plaintiff’s person, snatching Bonanza’s wallet from him, without consent or privilege. Defendant’s own deposition corroborates Mr. Bonanza’s statement as he admits “grabbing the wallet” and that he did not receive a verbal consent to do so. As a direct and proximate result of the aforementioned battery of the Plaintiff by the Defendant, the Plaintiff sustained injury to various portions of his body resulting in him having to expend money for medical care and treatment; resulting in him experiencing pain, suffering, and mental anguish; and resulting in him becoming temporarily disabled and disfigured, all of which can be substantiated by medical records that will be produced during discovery.
b. The tort of assault is a claim for which relief may be granted.
Plaintiff’s damages stemming from a common nucleus of operative facts, the illegal seizure of Plaintiff by Defendant Clay as agent of Co-Defendant Kenilworth, allows for this court to hear all the claims against the Defendants. Clay’s Deposition provides that: He is above average height, weight and build, Clay spoke to Mr. Bonanza in a loud tone of voice, Clay insulted him and made comments about driving a Jaguar, some of Clay’s comments according to Defendant himself could have been understood as abusive and he did have a large flashlight over his head. As a direct and proximate result of the aforementioned assault Plaintiff sustained injury to various portions of his body resulting in him having to expend money for medical care and treatment; resulting in him experiencing pain, suffering, and mental anguish; and resulting in him becoming temporarily disabled and disfigured, as previously state, this can be substantiated by medical records and further testimony. The evidence supports that a reasonable finder of fact could find that an assault had occurred and therefore this matter should be heard by the trier of fact and not be decided by a motion for summary judgment for the Defendants’.
CREDIBILITY AND CONTROVERSY
Despite Defendant’s inconsistencies, that he did everything by the book and yet he let a “criminal”, as he put it, go with a minor misdemeanor and retained no evidence of a criminal act; his credibility and his interpretations of what happened that evening are not determinative for the purposes of summary judgment. Borrowing form Officer Clay’s own words the “law is the law” and under these circumstances summary judgment is wholly inappropriate.
WHEREFORE, Plaintiff prays that in the interest of justice, Defendants’ Motion be denied.
Cheatem & Lie
 Defendant did not get a radar gun reading of Plaintiff’s speed, there is no videotape of the Plaintiff’s driving, Defendant did no acquire a breathalyzer test on the scene, a BAC reading from the medics.