White v. Fitzpatrick et al

Filing 43

MEMORANDUM AND ORDER, denying 32 MOTION to Dismiss Count II of Plaintiff's First Amended Complaint filed by Jay Staser. Signed by Judge J. Phil Gilbert on 5/17/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORALYNN E. WHITE,
Plaintiff,
Case No. 17-cv-00087-JPG-RJD

v.
JOSEPH JAMES FITZPATRICK, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Jay Staser’s Motion (Doc. 32) to Dismiss
Count II of Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b). The
Plaintiff filed a timely response (Doc. 33).
1. Background.
Count II of plaintiff’s amended complaint alleges that several defendants, including Jay Staser,
“falsely arrested, imprisoned and prosecuted Plaintiff without probable cause in violation of the Fifth
and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.” Defendant Jay
Staser moves for dismissal of this count arguing that the Fifth Amendment only applies to actions of
the federal government and that none of the defendants named in Count II are alleged to be federal
actors.
2. Standard.
When reviewing defendants’ Rule 12(b)(6) motion to dismiss, the Court accepts as true all
allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state a
claim, a complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied if the complaint (1) describes

1

the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon
which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative level.
Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v. Concentra Health
Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl., 550 U.S. at 556).
Further, Federal Rule of Civil Procedure 8(d)(2) allows a plaintiff to set out two or more
statements of a claim. “If a party makes alternative statements, the pleading is sufficient if any one of
them is sufficient.”
3. Analysis.
In this case, Count II alleges a due process violation under the Fifth and Fourteenth Amendments.
The Fifth Amendment is made applicable to the states by the Fourteenth Amendment. As such, no
pleading error occurred simply because the plaintiff chose to put both the Fifth and Fourteenth
Amendments within her allegations. Further, as noted above, Rule 8(d)(2) permits pleading more
than two statements of a claim. Count II is sufficient with regard to the Fourteenth Amendment since
the defendants are alleged to be state actors. Therefore, dismissal is not appropriate.
4. Conclusion.
Therefore, Defendant Jay Staser’s Motion (Doc. 32) to Dismiss Count II of Plaintiff’s
Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) is DENIED.
IT IS SO ORDERED.
DATED: 5/17/2017

s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE

2