Perkinson v. Beliveau et al

Filing 64

ORDER GRANTING Motion to Dismiss for Failure to State a Claim (Second Amended Complaint) filed by John Schuster and Illinois State Police (Doc. 54 ). Signed by Judge Staci M. Yandle on 7/11/2016. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEBORAH PERKINSON

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Plaintiff,
vs.
ILLINOIS STATE POLICE,
JOHN SCHUSTER, in his Individual and
Official Capacity, and
U.S. BANK, an Out-of-State Corporation
doing Business in the State of Illinois,
Defendants.

Case No. 15-CV-526-SMY-PMF

MEMORANDUM AND ORDER
Pending before the Court is the Motion to Dismiss filed by Defendants Illinois State
Police (“ISP”) and John Schuster (Doc. 54) which was filed on May 17, 2016. Plaintiff failed to
file a response. For the foregoing reasons, Defendants’ motion is GRANTED.
Plaintiff was the target of an ISP investigation. She filed suit against Defendants ISP and
Schuster alleging violations of her Fourth, Fifth and Fourteenth Amendment rights pursuant to
42 U.S.C. § 1983 (Count 1), state law claims for fraud and conversion (Count 2) and state law
claims for false imprisonment, unlawful restraint and false arrest (Count 3). On April 5, 2016,
this Court dismissed Plaintiff’s claims against the Defendants and granted her leave up to and
including May 6, 2016 to amend her Complaint in order to re-plead the claims that were
dismissed without prejudice (See Doc. 50).
Plaintiff filed her Second Amended Complaint asserting the same allegations against
Defendants ISP and Schuster in their official capacities that were previously dismissed (Doc.
52). She also alleged that Defendant Schuster individually violated her rights under the Fourth,
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Fifth and Fourteenth Amendments.

In their motion, ISP and Schuster argue that the Second

Amended Complaint should be dismissed because Plaintiff asserts the same claims previously
barred by this Court’s April 5, 2016, Order and that her allegations relevant to the Fifth and
Fourteenth Amendments fail to state a claim.
The Court may, in its discretion, construe a party’s failure to file a timely response as an
admission of the merits of the motion. See Local Rule 7.1(c) (requiring a response to a motion to
dismiss be filed 30 days after service of the motion and stating a failure to timely respond may be
deemed an admission of the merits of the motion); see also Tobel v. City of Hammond, 94 F.3d
360, 362 (7th Cir.1996) (“[T]he district court clearly has authority to enforce strictly its Local
Rules, even if a default results.”). Here, having fully considered Defendants’ arguments, the
Court deems Plaintiff’s failure to respond as an admission of the merits of the motion and grants
Defendants’ Motion to Dismiss (Doc. 54). Accordingly, the claims against Defendants Illinois
State Police and John Schuster are DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: July 11, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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