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.
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.
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 ...