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DIBENEDETTO v. CITY OF CHICAGO

December 23, 1994

FRANK DiBENEDETTO, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation; VINCENT CULLOTTA, individually and as agent of the CITY OF CHICAGO; VILLAGE OF SCHAUMBURG, a municipal corporation; and GINA OHANESSIAN individually and as agent of the CITY OF CHICAGO, Defendants.


CHARLES RONALD NORGLE, SR., Judge, United States District Court


The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

CHARLES R. NORGLE, SR., District Judge:

 Before the court are the separate motions to dismiss of defendants City of Chicago ("City"), Vincent Cullotta ("Cullotta"), and Gina Ohanessian ("Ohanessian"). For the following reasons, the motions are granted.

 BACKGROUND1

 This matter stems from an apparent domestic squabble which resulted in two arrests of the complainant here. Plaintiff Frank DiBenedetto ("DiBenedetto") contends that Ohanessian falsely signed a criminal complaint against him for battery on January 23, 1992. Two days later, Chicago police officers arrested DiBenedetto. On March 24, 1992, Ohanessian signed another allegedly false criminal complaint charging him with harassment of a witness due to a threatening phone call he had made. One year later, on February 2, 1993, the battery charge was dismissed. Similarly, on March 23, 1993, the charges of harassment of a witness and contacting a witness were dismissed. *fn2"

 DISCUSSION

 In deciding a motion to dismiss, the court accepts all well-pleaded factual allegations as true, as well as all reasonable inferences that may be drawn from those allegations. Mid America Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir. 1993). Because federal courts simply require "notice pleading," this court must construe pleadings liberally. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993). In construing reasonable inferences, however, the court need not stretch allegations beyond their sensible and reasonable implications. Chan v. City of Chicago, 777 F. Supp. 1437, 1440 (N.D. Ill. 1991).

 A. CITY OF CHICAGO

 The court first addresses whether the City may be dismissed from this action due to Illinois' statute of limitations. The Federal Rules of Civil Procedure provide that a statute of limitations defense is an affirmative defense which should be set forth "in pleading to a preceding pleading." Fed. R. Civ. P. 8(c). However, the statute of limitations is an appropriate ground for dismissal if it clearly demonstrates noncompliance on the face the complaint. E.E.O.C. v. Park Ridge Public Library, 856 F. Supp. 477, 480 (N.D. Ill. 1994). Because the face of the complaint in this matter does evince a limitations issue, the defense is appropriately raised here. As to the City, Illinois' statute of limitations, and not the limitation of § 1983, controls because DiBenedetto failed to plead that the City had a policy for depriving one of constitutional rights, therefore § 1983 does not apply. Monell v. Department of Social Serv., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (holding that a policy or custom must be alleged to state a § 1983 claim against a municipality); Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985).

 The Illinois Local Government Tort Immunity Act provides as follows:

 
No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that injury was received or the cause of action accrued.

 745 ILCS 10/8-101. In this matter, the most recent date mentioned in DiBenedetto's complaint was March 23, 1993, the date the charges of harassment of a witness and contacting a witness were dismissed. The complaint was filed over one year later, March 24, 1994. Therefore, even using the most forgiving dates, the claims in count II are time-barred as ...


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