and reopening the
investigation to ask new questions of witnesses. Further, as discussed in
supra § II.A.2., Kies has failed to sufficiently allege that Nila's
conduct violated her constitutional right of access to the courts because
Nila's conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
Because Kies has failed to adequately allege that a constitutional
violation transpired, Kies has failed to show that Nila is not entitled
to qualified immunity in his individual capacity. Accordingly, Nila is
entitled to qualified immunity, and the claims against him are dismissed
Kies alleges that Brown, a city attorney, violated her constitutional
rights when she "took active steps to withhold exculpatory information
from Plaintiff Kies, to wit, she pursued vigorously a motion with the
Court seeking to deprive Plaintiff Kies of evidence Brown knew or should
have known was exculpatory." (Am. Compl. at ¶ 19.) Kies's amended
complaint fails to allege the court's disposition of Brown's motion and
fails to allege that the evidence at issue in the motion was in fact
Defendant Brown is an official protected by qualified immunity. The
Seventh Circuit has held that "public defenders, like state prosecutors,
and state and city attorneys, enjoy a qualified immunity for acts
performed in the discharge of their official duties." John v. Hurt,
489 F.2d 786, 788 (7th Cir. 1973) (emphasis added). See also Bartoli v.
ARDC, No. 97 C 3412, 1998 WL 100246, at *3 (ND. Ill. Feb. 24, 1998)
(citing Lumbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (holding that
"in initiating a prosecution and in presenting the State's case, the
prosecutor is immune from a civil suit for damages under § 1983")).
Kies's allegation against Brown does not set forth a constitutional
violation. Here, Brown was clearly serving as an advocate when she filed
the motion with the court, and her pursuit of this motion was well within
the scope of her discretionary duties as a prosecuting attorney. It is
customary practice for an attorney to file a motion asking the court to
rule on the discoverability of documents, and the Constitution does not
preclude an attorney from filing such a motion with the court. Because
Kies has failed to sufficiently allege that her constitutional rights
were violated as a result of Brown's conduct, Kies has failed to show
that Brown is not entitled to qualified immunity in her individual
capacity. Accordingly, Brown is entitled to qualified immunity, and the
claims against her are dismissed with prejudice.*fn5
B. Motion to strike pursuant to Rule 12(f)
Defendants Brown and the City of Aurora have also moved, pursuant to
Rule 12(f) to strike paragraphs 14(d). 19, 20, 21, 27, 47, and 51 in
Kies's amended complaint.
Each of these paragraphs contains allegations
of misconduct by Brown in support of Kies's claims against Smith and the
City of Aurora. Defendants argue that the court should strike these
paragraphs because (1) these allegations do not apply to Kies's other
claims and do not bear any conceivable relationship to those claims, (2)
Kies cannot prevail on her other claims by proving the conduct in these
allegations occurred, and (3) these allegations are prejudicial to Brown
and the City of Aurora. The court disagrees.
Under Rule 12(f), "the court may strike from any pleading any
insufficient defense or any redundant, immaterial, impertinent or
scandalous matter." FED. R. CIV. P. 12(f). However, courts generally
disfavor motions to strike. Tatum v. Davis, No. 95 C 1341, 1996 WL
388405, at * 1 (N.D. Ill. July 9, 1996). Courts will strike portions of a
complaint only if the challenged allegations are so unrelated to the
present claim as to be void of merit and unworthy of consideration.
Trustmark Life Ins. Co. v. Univ. of Chicago Hosps., No. 94 C 4692, 1996
WL 68009, at *1 (N.D. Ill. Feb. 14, 1996).
The allegations defendants seek to strike are sufficiently related to
Kies's claims against Smith and the City of Aurora and will not be
stricken. This court cannot, at this juncture, conclude that these
allegations are not relevant in any way to the controversy. Further, the
allegations are not so lengthy and complex that they confuse the issues
or put an undue burden on defendants. Therefore, the court denies
defendants' motion to strike.
For the foregoing reasons, the court (1) grants defendants' motion to
dismiss Count V of the amended complaint and to dismiss defendants Nila
and Brown from the amended complaint in its entirety, and (2) denies
defendants' motion to strike portions of plaintiff's amended complaint.