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DIDZEREKIS v. STEWART

March 23, 1999

PAUL P. DIDZEREKIS, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF MARSHA BREWER, DECEASED; ET AL., PLAINTIFF,
v.
GREGORY A. STEWART; THE CITY OF NAPERVILLE, A BODY POLITIC AND CORPORATE; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ann Claire Williams, District Judge.

MEMORANDUM OPINION AND ORDER

The estate and children of the late Marsha Brewer-Stewart, bring this action against Defendants, City of Naperville ("City"), Officers Brestal, Martin, Degregorio, Barker, Baker, Hochstetler, Montanari, Winter, and McAnally ("Officers") and Gregory Stewart ("Stewart"). In Count I, plaintiffs seek relief under 42 U.S.C. § 1983 against the City and Officers for violation of decedent's constitutional rights under the Fourteenth Amendment. In Count II and III, the first of several state law claims brought under pendant jurisdiction, plaintiffs allege willful and wanton conduct (Count II) and intentional infliction of emotional distress (Count III) on the part the City and Officers. In Count IV, plaintiffs allege that Stewart's actions resulted in injury to Marsha Brewer-Stewart prior to her death under the Survival Act, 755 Ill. Comp. Stat. 5/27-6 (Ill.Stat.Ann. 1992). In Count V, plaintiffs charge that Stewart's actions resulted in Marsha Brewer-Stewart's death and caused them injury under the Wrongful Death Act, 740 Ill. Comp. Stat. 18% (Ill.Stat.Ann. 1992). The City and Officers now move to dismiss Count I, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Counts II and III for lack of subject matter jurisdiction. Defendant Stewart moves to dismiss Counts IV and V under Rule 12(b)(1) for lack of subject matter jurisdiction, or alternatively, under 12(b)(6). For the reasons set forth below, the court denies the City and Officers' motion to dismiss Counts I-III and grants Stewart's motion to dismiss Counts IV and V for lack of subject matter jurisdiction.

Background

Marsha Brewer-Stewart ("Marsha") was married to Defendant Stewart. (2nd Am. Compl. ¶ 7.) Stewart had a history of violent criminal behavior. (Id. ¶ 8.) He had tried to commit suicide several times and on May 9, 1993, he attempted to murder Marsha. (id.) Stewart also had a long history of mental illness. (Id. ¶ 9.) He had been a patient at Mercy Center, a mental health facility, until December 10, 1993, when he was discharged. (Id. ¶ 9-10.) Accordiug to plaintiffs, the City police knew about Stewart's violent behavior and history of mental illness. (Id. ¶ 11.)

On December 26, 1993, at approximately 8:35 p.m., Marsha frantically telephoned "911" requesting emergency help at her home, 531 FesslerStreet, in Naperville, Illinois. (Id. ¶ 12.) One or more of the Officers arrived at Marsha's home by approximately 8:40 p.m. (Id. ¶ 13.) Other Officers arrived shortly after 8:40 p.m. (Id.) Officers did not make forced entry into Marsha's home until approximately 9:20 p.m. (Id. ¶ 14.) When Officers did make forced entry, they discovered that Marsha had sustained fatal knife wounds at Stewart's hands. Stewart had also stabbed himself in the chest. (Id.) Stewart was convicted for killing Marsha and is now incarcerated. (Id. ¶ 3.) Plaintiffs did not discover the details concerning the events of December 26, 1993, until Stewart's criminal trial in January 1995. (Id. ¶ 17.)

Subsequently, Plaintiffs Paul P. Didzerekis ("Didzerekis"), administrator of Marsha's estate, and Marsha's children, Leigh Ann Brewer, Dana Brewer, and father and next friend of Lara Brewer,*fn1 Robert Brewer filed this action in the Circuit Court of Cook County. (Id. ¶ 16.) Plaintiffs voluntarily non-suited their cause of action in that court since it lacked jurisdiction. That court then dismissed the action without prejudice on November 25, 1996.

(Id.) On December 12, 1996, plaintiffs filed a two-count complaint with this court against Stewart, the City and Officers. Defendants sought leave to file a motion to dismiss the complaint, which the court granted. However, the court vacated the briefing schedule when it granted plaintiffs' request to file an amended complaint. (See Mem. Order and Op., No. 96 C 8148, J. Williams, Feb. 9, 1998.)

Plaintiffs filed their First Amended Complaint on February 28, 1997. In that complaint, plaintiffs alleged that both the City and Officers violated Marsha's civil rights, including her rights under the Fourteenth Amendment. In Count II, Didzerekis charged that Stewart should be held liable to Marsha's estate for the pain and suffering Marsha endured prior to her death. In Count III, the remaining plaintiffs claim that Stewart is liable to them under the Wrongful Death Act. Plaintiffs argued that because of Stewart's wrongful act, they were deprived of her support, love, affection, companionship, guidance, care and attention. Defendants moved to dismiss the First Amended Complaint on May 8, 1997. Plaintiffs then filed a motion for leave to amend their complaint a second time. On December 24, 1997, Stewart filed a motion to dismiss plaintiffs' First Amended Complaint. On February 9, 1998, the court granted all defendants' motions to dismiss the First Amended Complaint without prejudice and denied plaintiffs motion for leave to file a Second Amended Complaint, except to properly allege the parent-child relationship between Marsha and plaintiffs, Leigh Ann, Dana and Lara Brewer.

The City and Officers now move to dismiss Count I of plaintiffs' Second Amended Complaint for failure to state a claim upon which relief can be granted.*fn2 Stewart moves to dismiss Counts II and III for lack of subject matter jurisdiction, or in the alternative, under Rule 12(b)(6) for failure to state a claim.

Analysis

A motion of dismiss tests the legal sufficiency of the complaint and not the merits of the suit. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citing Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). A plaintiff fails to state a claim up which relief may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Leaky v. Board of Trustees of Community College Diet. No. 508, 912 F.2d 917, 921 (7th Cir, 1990) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In analyzing the sufficiency of plaintiffs complaint, the Court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the Plaintiff. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir. 1991); Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir. 1990). These factual allegations may be contained in the complaint or, under some circumstances, in plaintiffs reply brief in opposition to a motion. See Early v. Bankers Life and Cas. Co., 959 F.2d 75, 78-79 (7th Cir. 1992) (accepting as true facts contained in reply to motion to dismiss which clarified conclusions pled in complaint and challenged in motion). This court, however, is "not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or assign any weight to unsupported conclusions of law." R.J.R. Services, Inc. v. Aetna Cas. and Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).

On a motion to dismiss for lack of subject matter, the party asserting jurisdiction, the plaintiff in this case, bears the burden of making a prima facie showing that jurisdiction is proper. Chemical Waste Management v. Sims, 870 F. Supp. 870, 873 (N.D.Ill. 1994). When deciding such a motion, a court may accept affidavits submitted by both parties, but all factual disputes must be resolved in favor of the plaintiff. McDonald's Corporation v. Bukele, 960 F. Supp. 1311, 1314 (N.D.Ill. 1997) (citations omitted).

I. Count I: Section 1983

A. The City: Monell Practice or Policy

The City argues that the court must dismiss Count I of plaintiffs' complaint because it falls to set forth facts sufficient to show a municipal practice or policy. The City also contends that even if plaintiffs could show a municipal practice or policy, they did not plead facts ...


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