Peterson v. Dart et al

Filing 56

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/3/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD PETERSON #20090007816,
Plaintiff,
v.
THOMAS DART, et al.,
Defendants.

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No.

10 C 5681

MEMORANDUM ORDER
Counsel for all defendants in this Section 1983 case have
filed their Answer to the Second Amended Complaint (“SAC”)
brought against them by Richard Peterson (“Peterson”).

For the

most part that responsive pleading is meticulous in dealing with
the SAC, which has been filed on Peterson’s behalf by his
appointed pro bono counsel--the one exception is defense
counsel’s assertion of qualified immunity as a claimed
affirmative defense (“AD”), the subject to which this sua sponte
memorandum order is addressed.
This Court finds it troubling that the lawyers for
governmental defendants at every level of the state’s law
offices--whether Assistant Attorneys General, Assistant State’s
Attorneys or Assistant Corporation Counsel--have not really come
to grips with the evolution of qualified immunity as a purported
AD.

To the extent that their filings may reflect office policy,

a fresh look by the top echelon of those offices may be overdue.
In that respect it must not be forgotten that the

fundamental purpose of qualified immunity for state actors was
and is a desire not only to insulate them from liability under
appropriate circumstances but also to preclude their having to
defend actions at all.

Hence where a plaintiff’s plausible

allegations and reasonable inferences from those allegations must
be taken as gospel (which is the required posture at the
threshold of litigation), so that the issues need an evidentiary
airing at trial to decide whose version is correct, there has
been increasing judicial recognition that a purported qualified
immunity AD advanced at the very outset of the case is premature
by definition.
Thus Pearson v. Callahan, 555 U.S. 223, 232 (2009) has made
it plain that the first step in the qualified immunity analysis
calls for acceptance of the complaint’s allegations as true:
First, a court must decide whether the facts that a
plaintiff has alleged (see Fed. Rules Civ. Proc.
12(b)(6), (c)) or shown (see Rules 50, 56) make out a
violation of a constitutional right.
If that step is satisfied, the next question--“whether the right
at issue was ‘clearly established’ at the time of defendant’s
alleged misconduct” (id.)--is a question of law.
Here the second factor has not been challenged by
defendants, and the question whether plaintiff’s factual
allegations are or are not true must await the ultimate
evidentiary determination (whether through trial or via summary

2

judgment).1

As Pearson, 550 U.S. at 238-39 has said, “[w]hen

qualified immunity is asserted at the pleading stage, the precise
factual basis for the plaintiff’s claim or claims may be hard to
identify.”

And as then Judge (now Chief Judge) Easterbrook of

our own Court of Appeals had observed even more pointedly some
years earlier in his concurrence in Jacobs v. City of Chicago,
215 F.3d 758, 775 (7th Cir. 2000):
Rule 12(b)(6) is a mismatch for immunity and almost
always a bad ground of dismissal.
It may perhaps be that qualified immunity will become a
potentially viable affirmative defense at some future point in
the case, but now is certainly not the time.

Accordingly it is

stricken from the Answer.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

February 3, 2012

1

At that point, of course, defendant will have been found
liable or not liable--and qualified immunity will have become
moot.
3