Herrington v. Bradford et al
ORDER granting 19 Motion to Dismiss for Failure to State a Claim. Counts VII, VIII, IX, X, XI, and XII are dismissed without prejudice, and the Madison County Sheriff's Department is dismissed as a defendant without prejudice. The Court grants Herrington leave to file an amended complaint within 30 days to rectify the issues identified with these elements of the initial complaint. Signed by Chief Judge Nancy J. Rosenstengel on 3/30/2021. (dhg)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Independent Administrator of the Estate
of JASON STRAHAN, Deceased,
Case No. 3:20-CV-00938-NJR
JEREMY B. BRADFORD, MOLLY
MARGARITIS, TIMOTHY MUDD,
BRIANNA MARKEL, KEVIN
BILLINGS, CITY OF STAUNTON,
ILLINOIS, MADISON COUNTY
SHERIFF’S DEPARTMENT, and
ILLINOIS STATE POLICE,
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the court is a Motion to Dismiss (Doc. 19) by Defendants Timothy
Mudd, Brianna Markel, and the Madison County Sheriff’s Department (together,
“Movants”). For the reasons set forth below, the Court grants the Motion.
FACTUAL & PROCEDURAL BACKGROUND
Plaintiff Stephanie Herrington filed her initial complaint on September 18, 2020
(Doc. 1). The complaint consists of 27 counts alleging a variety of constitutional violations
and state law claims arising out of the forceful apprehension of Jason Strahan by law
enforcement and Jason Strahan’s subsequent death. Herrington, the administrator of
Strahan’s estate, brought these claims against several law enforcement officers involved
in the apprehension of Strahan in 2020, as well as against the law enforcement agencies
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and municipalities that employed those officers.
Movants here are two law enforcement officers who were employed at the time of
the apprehension by the Madison County Sheriff’s Department, as well as the
Department itself. They argue that certain counts of this action should be dismissed as
(1) Counts IX and XII fail to allege official capacity claims against Mudd and Markel,
(2) Counts VII, VIII, X, and XI are barred by the Illinois Tort Immunity Act, (3) Counts
VII, VIII, X, and XI are barred as a wrongful death claim cannot survive without an
underlying wrongful act, and (4) the Madison County Sheriff’s Department should be
dismissed as a wrongful party as it has no legal existence separate from Madison County
Herrington timely responded on February 8, 2021, contesting all these points
Defendants bring their motions pursuant to Federal Rule of Civil Procedure
12(b)(6). The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint,
not to determine the merits of the case or decide whether a plaintiff will ultimately
prevail. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule
12(b)(6) motion to dismiss, the plaintiff only needs to allege enough facts to state a claim
for relief that is plausible on its face. Twombly, 550 U.S. 570. A plaintiff need not plead
detailed factual allegations, but must provide “more than labels and conclusions, and a
formulaic recitation of the elements.” Id. For purposes of a motion to dismiss under Rule
12(b)(6), the Court must accept all well-pleaded facts as true and draw all possible
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inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873,
879 (7th Cir. 2012).
Counts IX and XII
Counts IX and XII are excessive force claims brought against Mudd and Markel,
respectively, under 42 U.S.C. § 1983. Movants argue that these claims are brought against
Mudd and Markel in their official capacity only and as such should be dismissed.
Herrington counters that she has properly pled official capacity claims.
In Monroe v. Pape, 365 U.S. 167 (1961), the Supreme Court interpreted 42 U.S.C.
§ 1983 to permit suits against state officers for violations of federal constitutional rights,
even when state officers acted “under color of state law[.]” The Supreme Court has
subsequently recognized a number of distinctions between types of suits filed under
Section 1983, however. Of particular relevance here is the distinction between suits
against state agents in their “individual” and “official” capacities. In Kentucky v. Graham,
473 U.S. 159, 166 (1985), the court elaborated upon this distinction, noting that “an officialcapacity suit is, in all respects other than name, to be treated as a suit against the
[governmental] entity[.]” To succeed in such a suit, a plaintiff must show that “the entity
itself is a ‘moving force’ behind the deprivation,” and “the entity’s ‘policy or custom’
must have played a part in the violation.” Id. (quoting Monell v. New York City Dep’t of
Social Servs., 436 U.S. 658, 694 (1978)). For an individual-capacity suit, on the other hand,
a plaintiff need only show that “the official, acting under color of state law, caused the
deprivation of a federal right.” Id. (citing Monroe, supra at 167).
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Here, Herrington concedes in her response that the counts in question are asserted
against Mudd and Markel in their official capacities, yet she has not alleged that a
governmental entity was the moving force behind the alleged violations or specified a
policy or custom at issue here. Accordingly, these counts must be dismissed, though the
Court grants Herrington leave to amend her complaint to either properly bring these
claims in official capacity or change them to individual-capacity claims.
Counts VII, VIII, X, and XI under the Tort Immunity Act
In these counts, Herrington brings claims against Mudd and Markel under the
Illinois Wrongful Death Act and Illinois Probate Act. Movants argue that these counts
should be dismissed as liability is barred by the Illinois Local Governmental and
Governmental Employees Tort Immunity Act (“Tort Immunity Act”), 745 Ill. Comp. Stat.
The Tort Immunity Act provides that “[a] public employee is not liable for his act
or omission in the execution or enforcement of any law unless such act or omission
constitutes willful and wanton conduct.” Id. Here, as Herrington notes, her complaint
asserts that Mudd and Markel committed the alleged wrongful acts willfully and
wantonly. Furthermore, she does not merely facially assert willful and wanton conduct—
the factual allegations contained in ¶10-29 of the complaint contain a detailed description
of Mudd’s alleged acts that is more than sufficient to support an assertion of willful and
wanton conduct at this stage. Factual allegations related to Markel, however, appear to
be limited merely to a mention that “Deputy Markel also went to the hospital” (Doc. 1 at
6, ¶ 28). This is simply insufficient to plausibly state a claim. Accordingly, the Motion to
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Dismiss is denied as to the counts against Mudd but granted as to the counts against
Markel. Counts X and XI are dismissed without prejudice, and the Court grants
Herrington leave to amend the complaint to add further factual allegations sufficient to
support amended claims against Markel.
Counts VII, VIII, X and XI and Underlying Wrongful Acts
Movants next contend that these counts under the Illinois Wrongful Death Act,
740 Ill. Comp. Stat. 180/1, and Illinois Probate Act, 755 Ill. Comp. Stat. 5/27-6, should be
dismissed due to a lack of liability for the underlying injury. Indeed, the Illinois Wrongful
Death Act only permits liability where “the death of a person shall be caused by wrongful
act … and the act … would, if death had not ensued, have entitled the party injured to
maintain an action[.]” 740 Ill. Comp. Stat. 180/1. Similarly, the discussion of actions
surviving a death in the probate act is predicated on underlying liability for an injury had
the person survived. 755 Ill. Comp. Stat. 5/27-6.
Here, Herrington’s claims under the Illinois Wrongful Death Act and Probate Act
are predicated on underlying claims for excessive use of force. As the Court has already
determined that Herrington has not adequately pled official capacity claims and that the
factual allegations in the complaint are insufficient to overcome Markel’s immunity
under the Tort Immunity Act, these claims must be dismissed. But again, dismissal is
without prejudice, and the Court grants Herrington leave to add amended wrongful
death and survival claims to her complaint if she can properly assert underlying liability.
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Madison County Sheriff’s Department
Lastly, Movants argue that the Madison County Sheriff’s Department is not a
proper party as it lacks a legal existence independent from the government of Madison
Indeed, departments within a governing body have no legal existence separate
from the governing body and cannot be sued. Whiting v. Marathon Cty. Sheriff’s Dep’t, 382
F.3d 700, 704 (7th Cir. 2004). In Illinois, certain federal courts in unpublished decisions
have previously concluded that sheriffs’ departments are instrumentalities of county
government and do not have legal existence separate from the relevant county. E.g.,
Jackson v. Cook County Sheriff Police Dep’t, 2004 U.S. Dist. LEXIS 23312 at *5 (N.D. Ill. Nov.
16, 2004). The Seventh Circuit has stated that “the [DuPage County] Sheriff’s office has a
legal existence separate from the county and the State, and is thus a suable entity[,]” yet
this appears to refer to sheriff as an individual elected officer, not to the administrative
Sheriff’s Department. Accordingly, it appears that it would be more appropriate to name
either the Sheriff of Madison County or Madison County itself. At this juncture, the Court
finds it best to dismiss the Madison County Sheriff’s Department without prejudice,
granting Herrington leave to amend the complaint to name one of these appropriate
For the reasons set forth above, the Motion to Dismiss (Doc. 19) is GRANTED,
Counts VII, VIII, IX, X, XI, and XII are dismissed without prejudice, and the Madison
County Sheriff’s Department is dismissed as a defendant without prejudice. The Court
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grants Herrington leave to file an amended complaint within 30 days to rectify the issues
identified with these elements of the initial complaint.
IT IS SO ORDERED.
DATED: March 30, 2021
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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