Bailey v. City Of Chicago et al
MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 6/2/2017: Defendants' motion to dismiss Count IV 8 is granted. Count IV of Plaintiff's complaint is dismissed with prejudice.Mailed notice(mad, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
LARRY BAILEY, JR.,
OFFICER MICHEAL P. WALSH and the
CITY OF CHICAGO,
No. 17 C 898
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Defendants City of Chicago and Officer Michael Walsh’s motion
to dismiss Count IV of Plaintiff’s complaint, alleging intentional infliction of emotional distress,
for failure to state a claim upon which relief may be granted. For the reasons set forth below, we
grant Defendants’ motion, with prejudice.
At the motion to dismiss stage, we accept all well-pleaded factual allegations as true and
draw all inferences in the plaintiff’s favor. Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 903 (7th Cir. 2011). On October 5, 2015, Officer Walsh was searching for a
suspect at a barbershop located at 5455 West Madison Street, Chicago, Illinois. (Compl. ¶ 11.)
Officer Walsh exited the rear of the barbershop where Plaintiff’s mobile home was located, and
entered Plaintiff’s home. (Id. ¶¶ 12–13.) Plaintiff objected to Officer Walsh searching his home
and, after the search was unsuccessful, Officer Walsh became “furious, . . . kicked Plaintiff in his
face, slammed him to the ground, and cuffed him.” (Id. ¶ 14.) Plaintiff alleges that while he was
handcuffed on the ground, Officer Walsh “beat him about his person, and subsequently struck
him in the face with his knee cap causing bleeding and bruising.” (Id. ¶ 15.) According to
Plaintiff, Officer Walsh then “fabricated police reports stating that Plaintiff had battered him and
assaulted him,” and those reports “were the moving force behind Plaintiff being criminally
charged for battery, assault and resisting a peace officer.” (Id. ¶ 19.) Plaintiff was found not
guilty of those charges on November 30, 2016. (Id. ¶ 21.)
Plaintiff filed this action against Defendants on February 3, 2017, alleging
42 U.S.C. § 1983 claims for the use of excessive force, illegal entry, and false arrest, as well as
Illinois state-law claims of intentional infliction of emotional distress and malicious prosecution,
and a state-law indemnification claim against the City of Chicago. Defendants moved to dismiss
Plaintiff’s state-law intentional infliction of emotional distress claim on April 5, 2017.
(Mot. (Dkt. No. 8).) Plaintiff did not file a response to the motion.1
Defendants’ motion to dismiss for failure to state a claim upon which relief may be
granted is governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of
the motion to dismiss is to test the sufficiency of the complaint, not decide the merits.”
Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (internal quotation marks omitted)
(quoting Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). Dismissal
pursuant to Rule 12(b)(6) is proper only if a complaint lacks enough facts “to state a claim [for]
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949–50 (2009) (internal quotation marks omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)); accord.
“A litigant’s failure to respond to arguments the opposing party raises in a motion to dismiss
operates as a waiver or forfeiture.” Rose v. Mystery Method, Inc., No. 7 C 5727,
2008 WL 723331, at *6 (N.D. Ill. March 14, 2008). Regardless of Plaintiff’s forfeiture, we find
his intentional infliction of emotional distress claim is time barred.
Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618–19 (7th Cir. 2007). The plausibility
standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65). That is, while the plaintiff need not plead
“detailed factual allegations,” the complaint must allege facts sufficient “to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–65.
Defendants argue that Plaintiff’s state-law intentional infliction of emotional distress
claim is barred by the one-year statute of limitations set out in the Illinois Tort Immunity Act,
745 ILCS 10/8–101(a). The Illinois Tort Immunity Act requires civil actions against local
entities or their employees, such as the City of Chicago and Officer Walsh, be “commenced
within one year from the date that the injury was received or the cause of action accrued.”
745 ILCS 10/8–101(a). In Illinois, “a cause of action for personal injuries accrues when the
plaintiff suffers injury.” Golla v. General Motors Corp., 164 Ill. 2d 353, 360,
657 N.E.2d 894, 898 (Ill. 1995). Thus, “a claim for intentional infliction of emotional distress in
the course of arrest . . . accrues on the date of the arrest.” Bridewell v. Eberle, 730 F.3d 672, 678
(7th Cir. 2013) (applying Illinois law). Plaintiff’s intentional infliction of emotion distress claim
arises from the events that occurred during his arrest on October 5, 2015. Because Plaintiff did
not file his intentional infliction of emotional distress claim until February 3, 2017, his claim is
time-barred and we grant Defendants’ motion to dismiss Count IV, with prejudice. See
Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011) (“While a statute of limitations defense is
not normally part of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), when
the allegations of the complaint reveal that relief is barred by the applicable statute of limitations,
the complaint is subject to dismissal for failure to state a claim.”).
For the foregoing reasons, we grant Defendants’ motion to dismiss Count IV of
Plaintiff’s complaint, with prejudice. It is so ordered.
Honorable Marvin E. Aspen
United States District Judge
Dated: June 2, 2017
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