se plaintiffs, we are faced with two diverging constructions of her claim. Either the officers negligently used excessive force in violation of state common law, or they intentionally employed such force in violation of the Fourth Amendment of the United States Constitution. In any event, Magnuson's complaint is devoid of any allegations of actual force used against her. Indeed, the only allegation of force is that the officers handcuffed Manuel, pushing and shoving him out of the house. As Magnuson lacks standing to raise any claims on behalf of Manuel, Count VIII is dismissed.
5. Count IX (Malicious Prosecution)
In order to state a cause of action under Illinois law for malicious prosecution, Magnuson must allege facts showing: "(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff." Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1231, 151 Ill. Dec. 560 (1990) (citing Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229, 44 Ill. Dec. 260 (1980); Ritchey v. Maksin, 71 Ill. 2d 470, 376 N.E.2d 991, 17 Ill. Dec. 662 (1978)). Implicit in her claim of malicious prosecution is the contention that the investigation by the officers prompted by a report of domestic violence constitutes the commencement of an original criminal judicial proceeding. We disagree. As defined by Illinois law, "a prosecution is commenced by a complaint, an information, or an indictment." Mulligan v. Village of Bradley, 131 Ill. App. 3d 513, 516, 475 N.E.2d 1029, 1032, 86 Ill. Dec. 650 (3d Dist. 1985) (citing Ill. Rev. Stat. ch. 38, PP 2-16, 111-1). Accordingly, Count IX of Magnuson's complaint is dismissed for failure to state a claim upon which relief may be granted.
6. Count II (Deprivation of Property)
In Count II of her complaint, Magnuson alleges that Cassarella and the other officers deprived her of property without due process of law. In response, Cassarella contends that Magnuson has failed to identify the deprivation of any property, let alone without due process of law.
We agree. We begin with the basic axiom that property interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S. Ct. 446, 451, 66 L. Ed. 2d 358 (1980) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972)). As defined under Illinois law, in its broadest and most inclusive sense "property" includes "every interest anyone may have in any and everything that is the subject of ownership by [human beings], together with the right to freely possess, use, enjoy or dispose of the same. See Davis v. Attic Club, 56 Ill. App. 3d 58, 66-67, 371 N.E.2d 903, 910, 13 Ill. Dec. 811 (1st Dist. 1977) (interpreting the word "property" as it appears in the Illinois Constitution of 1970). Even under this broad definition, Magnuson's complaint does not allege any facts indicating a cognizable deprivation of property. In her response to the present motion, Magnuson defines her property as "the right to be free. While the right to be free, as defined by Magnuson, may constitute a liberty interest, it is not property. Consequently, to the extent that Count II of Magnuson's complaint alleges a deprivation of property, it is dismissed.
For the reasons set forth above, we grant Cassarella's motion to dismiss, as well as the motion to dismiss filed on behalf of the CCSPD and the Board defendants. It is so ordered.
MARVIN E. ASPEN, United States District Judge