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KIES v. CITY OF AURORA

June 5, 2001

HELEN KIES, PLAINTIFF,
v.
CITY OF AURORA AND AURORA POLICE OFFICER DERRICK SMITH, VALERIE BROWN, AND MICHAEL NILA, DEFENDANTS.



The opinion of the court was delivered by: James H. Alesia, U.S. District Judge.

MEMORANDUM OPINION AND ORDER

Currently before the court are: (1) a motion to dismiss defendants Michael Nila and Valerie Brown from plaintiffs amended complaint or in the alternative to dismiss Count V pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), and (2) a motion to strike any allegations concerning Valerie Brown from the amended complaint pursuant to Federal Rule of Civil Procedure 12(f) ("Rule 12(f)"). For the reasons set forth below, the court (I) 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.

I. BACKGROUND

Plaintiffs amended complaint makes the following allegations. On or about May 29, 1998, while picking up her daughter from school, plaintiff Helen Kies ("Kies") observed defendant City of Aurora police officer Derrick Smith ("Smith") use force against Geovanni Perez, a minor child. After observing the episode, Kies informed the child that she had witnessed the event. Smith then told Kies the situation was none of her business and struck Kies in the face.

Thereafter, Kies filed an excessive force complaint regarding Smith with the Aurora Police Department. Sergeant Brian Leden ("Leden") investigated the charges and sustained the charge of excessive force in making an arrest. Subsequently, defendant Captain Michael Nila ("Nila") rejected Leden's findings and instructed Leden to reopen his investigation and ask new questions of various witnesses.*fn1

Meanwhile, Smith filed a criminal charge of disorderly conduct against Kies. During the criminal proceedings, defendant Valerie Brown ("Brown"), the city attorney prosecuting the case against Kies,*fn2 filed a motion with the court seeking to withhold information from Kies*fn3 After a trial on the merits, the criminal charge against Kies was resolved in her favor.

Kies then filed this complaint in federal court. Her amended complaint includes the following counts: (1) a claim for excessive force under 42 U.S.C. § 1983 ("§ 1983"); (2) a state law claim for malicious prosecution; (3) a claim for malicious prosecution under § 1983; (4) a First Amendment violation claim under § 1983; (5) a claim for unconstitutional cover-up under § 1983; (6) a state law claim of respondeat superior; and (7) a state law claim for indemnification.

Defendants Brown and Nila have filed a motion to dismiss them from the amended complaint in its entirety under Rule 12(b)(6) or in the alternative to dismiss Count V pursuant to Rule 12(b)(6). Defendants Brown and the City of Aurora have filed a motion to strike all allegations concerning Brown's conduct from the amended complaint under Rule 12(f). The court will address each motion in turn.

II. DISCUSSION

A. Motion to dismiss pursuant to Rule 12(b)(6)

1. Standard for deciding a motion under Rule 12(b)(6)

When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. FED. R. CIV. P. 12(b)(6). See Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2000). if, when viewed in a 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. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Dismissal is proper only if it is clear from the complaint that no set of facts consistent with its allegations would entitle the plaintiff to relief. Hishan v. King & Spalding, 467 U.S. 69, 73 (1984). The federal rules do not require detailed factual pleadings. FED. R. Civ. P. 8(a)(2). Rather, a complaint must contain only a "short and plain statement of the claim showing that the pleader is entitled to relief." id. A complaint meets these requirements when it provides fair notice of the nature of plaintiff's claim and the ground upon which it relies. Starling v. Chicago Police Officers, No. 98 C 7900, 2000 WL 1036301, at *5 (N.D. Ill. July 21, 2000) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). The Supreme Court has refused to apply a heightened pleading standard to § 1983 claims. Id.

2. Count V — § 1983 Claim of Unconstitutional Cover-Up

Count V of Kies's amended complaint alleges that Nila violated Kies's constitutional rights by participating in a conspiracy to cover-up Smith's alleged misconduct. Specifically, Count V alleges that, after Kies filed an excessive force complaint and Sergeant Leden investigated and sustained the charge, Captain Nila ordered the investigation reopened to allow for an avenue to reject the original finding of the investigation. Defendants argue that Count V should be dismissed because Kies did not sufficiently allege her constitutional rights were violated as a result of the alleged cover-up. More specifically, defendants argue that Kies failed to allege that the cover-up interfered with ...


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