Opinion
No. 00-1203
September 12, 2000.
REPORT AND RECOMMENDATION
This cause is before the Court on Defendant Conner's Motion to Dismiss Count II Pursuant to Rule 12(b)(1) and 12(b)(6).
I. FACTS ALLEGED IN THE COMPLAINT
Defendants Jennifer Beckman, Amanda Chalus, and Douglas Hopwood are police officers for the City of Peoria, Illinois. Defendant Stacy Conner is an officer with the Illinois State Police.
On February 12, 2000, Defendants arrested decedent Eugene Pitchford, Jr., near the intersection of Southwest Adams Street and Western Avenue in Peoria. Plaintiff Charles Walls, Jr., Special Administrator of the estate of Pitchford, alleges that Defendants used excessive force in arresting Pitchford which was greater than was reasonable under the circumstances and which led to his death.
Specifically, Plaintiff asserts that while making the arrest, and within a space of less than ten minutes, Defendants sprayed Pitchford with pepper spray in his eyes, face, mouth, and nose on three separate occasions. In addition, Plaintiff contends that while some Defendants were holding Pitchford down on the ground, other Defendants were beating him on the head, arms, and legs with a baton and with their fists.
Finally, Plaintiff alleges that although Defendants knew that Pitchford was in need of medical assistance, they failed to provide the necessary medical care to him. Specifically, Plaintiff claims that Defendants arranged for Pitchford to be transported to the county jail rather than for medical treatment even though they knew that he was unconscious; that Defendants waited an unreasonable amount of time to arrange for medical treatment although they knew Pitchford was in need of immediate medical care; and that Defendants made no efforts to provide Pitchford with medical attention after spraying him in the eyes, nose, face, and mouth with pepper spray.
Accordingly, Plaintiff filed this two Count Complaint-Count I pursuant to 42 U.S.C. § 1983 and Count II pursuant to the Illinois Wrongful Death Act ( 740 ILCS 180/1)- against Defendants.
II. LEGAL STANDARD FOR MOTIONS TO DISMISS
In ruling on a motion to dismiss, the Court "must accept well pleaded allegations of the complaint as true. In addition, the Court must view these allegations in the light most favorable to the plaintiff." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless "must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984). Mere conclusions, without supporting factual allegations, are insufficient to support a claim for relief. Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir. 1978). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957).
III. ANALYSIS
Defendant Conner argues that Count II of Plaintiff's Complaint should be dismissed against her because: 1) that Count is barred by the doctrine of sovereign immunity; and 2) because that Count is barred by the doctrine of public official immunity. Conner contends that Count II is in reality a suit against the State of Illinois. Conner asserts that Plaintiff can only maintain his wrongful death claim in the Illinois Court of Claims. 705 ILCS 505/8. Accordingly, Conner asks the Court to dismiss Count II.
Alternatively, Conner asks the Court to dismiss Count II because she is protected from liability upon the doctrine of public official immunity. Conner claims that because the only acts attributed to her by Plaintiff's Complaint are discretionary in nature and were taken in the performance of her official duties, she is entitled to public official immunity. Accordingly, Conner asks the Court to dismiss Count II against her.
Plaintiff asserts that because the Court must take all well-pleaded factual allegations in his favor, the Court cannot dismiss Count II against Conner. Plaintiff argues that he has alleged that Conner's actions were willful and wanton and has sufficiently described the events surrounding Pitchford's death to survive Conner's motion to dismiss on both immunity grounds. Therefore, Plaintiff contends that Conner's motion to dismiss should be denied.
The Court believes that Conner is entitled to immunity on Count II based upon both the doctrine of sovereign immunity and public official immunity. Plaintiff is correct that both Illinois and federal courts in this circuit recognize an exception to the Court of Claims' exclusivity doctrine. Healy v. Vaupel, 133 Ill.2d 295, 308, 549 N.E.2d 1240, 1247, 140 Ill. Dec. 368, 375 (Ill. 1990), citing Senn Park Nursing Ctr. v. Miller, 104 Ill.2d 169, 188-89, 470 N.E.2d 1029, 1039, 83 Ill. Dec. 609, 619 (Ill. 1984). As the Seventh Circuit has explained:
Illinois follows the federal practice by making an exception for situations in which the public employee did not act within the scope of his employment or violated the Constitution. . . . [I]n Illinois: "Whenever a state employee performs illegally, unconstitutionally, or without authority, a suit may still be maintained against the employee in his individual capacity and does not constitute an action against the State of Illinois."
Feldman v. Ho, 171 F.3d 494, 498 (7th Cir. 1999), quoting Wozniak v. Conry, 288 Ill. App.3d 129, 134, 679 N.E.2d 1255, 1259, 223 Ill. Dec. 482, 486 (Ill.App.Ct. 1997).
Although Plaintiff has alleged certain conduct by Conner in arresting Pitchford, he has not alleged that she took any actions which were performed outside of the scope of her employment. Harvis v. Board of Trustees of the Univ. of Illinois, 744 F. Supp. 825, 831 (N.D.Ill. 1990). Merely alleging that Conner's actions were performed willfully and wantonly is insufficient to defeat Conner's entitlement to sovereign immunity. Estate of Cassara v. Illinois, 843 F. Supp. 411, 414-15 (N.D.Ill. 1994). Accordingly, the Court believes that Conner is protected from liability on Count II by the doctrine of sovereign immunity and that he must litigate his wrongful death claim against Conner in the Illinois Court of Claims.
Likewise, the Court finds that Conner is entitled to public official immunity. It is true that the Illinois Tort Immunity Act recognizes an exception to a public employee's grant of immunity if the employee's omissions or actions constitute willful and wanton conduct. 745 ILCS 10/2-202. However, "mere conclusory allegations of willful and wanton conduct are insufficient to overcome a public employee's immunity. The plaintiff must plead in detail specific facts showing bad faith and improper motive." Youker v. Schoenenberger, 22 F.3d 163, 168 (7th Cir. 1994) (internal citations omitted). Here, Plaintiff has not pleaded any facts to establish that Conner acted with an improper motive. Accordingly, the Court believes that Conner is protected from liability on Count II based upon public official immunity.
While the Court recognizes that the Federal Rules of Civil Procedure employ a fact pleading standard and that Plaintiff is not required to plead legal theories in his Complaint, once a complaint is the subject of a motion to dismiss, a plaintiff must provide a reason as to why his complaint should not be dismissed. Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). The Court believes that Plaintiff has not done so but that he should be allowed to amend his Complaint to allege how Conner acted outside the scope of her employment, how she acted illegally, or how she acted unconstitutionally.
Wherefore, the Court RECOMMENDS that Defendant Conner's Motion to Dismiss Count II Pursuant to Rule 12(b)(1) and 12(b)(6)(d/e 11) be ALLOW ED and that Count II of Plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.