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HOLDER v. INVANJACK

March 15, 1999

ERIC HOLDER, PLAINTIFF,
v.
ANTHONY IVANJACK, A.D.S., SGT. PATRICK MINOGUE, STAR # 1858, SGT. PAUL DEROSA, STAR # 1458, P.O. THOMAS STACK, STAR # 6232, P.O. HAROLD RODRIQUEZ, STAR # 14532, P.O. DOMINICK COLUCCI, STAR # 14466, P.O. JOHN BERNATH, STAR # 18602, P.O. RICHARD HALJEAN, STAR # 9860, P.O. GARY CAIN, STAR # 19432, P.O. ANTHONY BARSANO, STAR # 15728, P.O. MAHER SULEIMAN, STAR # 8242, P.O. RONALD MIEZIERE, STAR # 10392, P.O. CHRISTOPHER STRZALKA, STAR # 5358, P.O. DAVID HAYES, STAR # 19938, LT. JEFFERY WILSON, STAR # 352, AND THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Alesia, District Judge.

 
MEMORANDUM OPINION  AND ORDER

Before the court is defendants the individual police officers and the City of Chicago's joint motion to dismiss Counts IV, V, VI, VII, VIII, and IX of plaintiff Eric Holder's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court denies the individual police officers and the City of Chicago's joint motion to dismiss.

I. BACKGROUND

The complaint alleges the following facts which, for the purposes of ruling on this motion, are taken as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). At all relevant times, the City of Chicago ("City") employed plaintiff, Eric Holder ("Holder"), as a patrol officer and all the individual defendants as full-time police officers.

On or about July 10, 1997, the individual defendant police officers ("police officers") responded to a reported shooting incident. Upon their arrival on the scene, they encountered Holder. The police officers, while yelling obscenities at Holder, told him to leave the area. Holder, who was off duty, attempted to identify himself and to show his police badge. The police officers responded to Holder's attempt by informing him that they did not care who he was.

Holder then asked the police officers: "Why are you treating me this way? I am one of you."

In response, the police officers said: "You are not one of us. You're just a Nigger with a badge."

After this exchange, Sergeant Patrick Minogue ("Minogue") approached Holder. Holder tried again to explain his presence and to identify himself. Minogue responded to Holder's attempts by stating: "You ain't shit, fuck you and that badge. I am the sergeant, you are going to jail tonight." Minogue then ordered the other police officers to "take Holder down." At this point, all the police officers, except Sergeant Paul DeRosa and Officer Harold Rodriquez, attacked Holder. During the "take down," the police officers hit Holder in the head with a blunt object, threw him to the ground, and beat and kicked him in the head and body. The police officers used their fists, feet, knees, night sticks, and flashlights to inflict pain and injuries on Holder.

After the attack, Holder requested medical attention which the police officers denied him. Later that evening, Holder was charged with two counts of battery of which a jury later found him not guilty.

On May 8, 1998, Holder filed a complaint with this court naming fifteen individual police officers and the City as defendants. Holder's complaint alleged violations of 42 U.S.C. § 1983 and Illinois tort law. On August 31, 1998, the City moved to dismiss Counts I, V and VII of the complaint. The court granted the City's motion on September 8, 1998 and gave Holder leave to file a first amended complaint by September 22, 1998. On September 21, 1998, Holder filed his first amended complaint. Holder's first amended complaint alleged the same violations of 42 U.S.C. § 1983 and Illinois tort law but terminated his claims against Anthony Ivanjack and Lieutenant Jeffery Wilson, two of the individual defendant police officers.

On October 15, 1998, the remaining individual police officers and the City filed this joint motion to dismiss Counts IV, V, VI, VII, VIII, and IX of Holder's first amended complaint. Counts IV and V are claims brought under Illinois law against the individual police officers and the City, respectively, for intentional infliction of emotional distress. Counts VI and VII*fn1 are claims brought under the Illinois Hate Crime Act against the individual police officers and the City, respectively. Finally, Counts VIII and IX are claims brought under Illinois law against two of the individual police officers and the City, respectively, for failing to protect Holder. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 1343(a)(3)-(4), 1367.

II. DISCUSSION

A. Standard for deciding a Rule 12(b)(6) motion to dismiss

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED.R.Crv.P. 12(b)(6); Gomez v. Illinois State Rd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond a doubt that ...


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