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February 25, 2002


The opinion of the court was delivered by: Gettleman, Judge


Plaintiff, Paulette Stobinske-Sawyer, has filed a seven count complaint against the Village of Alsip ("Alsip"), Cook County Sheriff Michael Sheahan ("Sheahan"), in his professional capacity, Cook County Sheriffs Police Officer James M. Pacetti ("Pacetti"), Cook County Sheriffs Police Sergeant Blackburn ("Blackburn"), Alsip Police Officer Kevin Mikos ("Mikos"), Alsip Police Officer Miller ("Miller"), and Alsip Police Officer Donchez ("Donchez"). In Count I, plaintiff alleges excessive force in violation of 42 U.S.C. § 1983 against Alsip, Sheahan, Pacetti, and Mikos. In Count II, also brought pursuant to § 1983, plaintiff alleges deprivation of necessary medical care against Alsip, Sheahan, Pacetti, Blackburn, Mikos, Miller, and Donehez. Count III, also pursuant to § 1983, alleges unlawful detention against Alsip, Sheahan, Pacetti, Blackburn, Mikos, Miller, and Donchez. Count IV is a state law malicious prosecution against Pacetti and Mikos. Count V alleges a state law defamation against Mikos. Plaintiff also alleges respondeat superior (Count VI) and indemnification (Count VII) against both Alsip and Sheahan. Defendants Mikos, Miller, and Donchez have moved to dismiss Counts IV, V, VI, and VII for failure to state a claim. For the following reasons, defendants' motion is denied in part and granted in part.


For purposes of a motion to dismiss, the court accepts the factual allegations of the complaint as true and draws all reasonable inferences in favor of plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996). The complaint alleges that on June 2, 2000, plaintiff, a 48-year-old mother of one, was driving home with a friend from her daughter's wedding rehearsal through Alsip, Illinois, when plaintiff was pulled over for speeding by defendant Pacetti, a Cook Count Sheriffs Police Officer assigned to assist the Alsip Police Department. While ticketing plaintiff for speeding and having no proof of insurance, Pacetti noticed a glass in plaintiffs car and asked what it contained. Plaintiff responded that the glass contained only water, handed Pacetti the glass, and stated once more that it was only water. Satisfied that the glass did not contain alcohol, but apparently angered by plaintiffs statement, Pacetti ordered plaintiff out of the car and began pulling on plaintiffs shirt through the car window when plaintiff inquired as to why she needed to get out of the car.

Fearing for her safety, plaintiff asked her passenger to call the Blue Island Police Department for assistance while defendant Pacetti walked behind plaintiffs car to speak with Mikos, an officer of the Alsip Police Department who had just arrived at the scene. Once she stepped out of the car, Plaintiff was handed the cell phone and was still on the phone when Pacetti returned and informed plaintiff that he was taking her to jail. Plaintiff alleges that Pacetti and Mikos then forced plaintiffs arms behind her back, using more force than reasonably necessary, and handcuffed her. Plaintiff, who had recently suffered nerve damage to her elbow, felt a snap in her arm and began to cry. Plaintiff alleges that she tried to communicate her pain to the officers while being taken to the Alsip Police Department, but was ignored and mocked.

Plaintiff was charged with battery and resisting arrest. After arriving at the police department, plaintiff asked several officers, including Sergeant Blackburn, for medical treatment and the opportunity to call her husband. Each time plaintiff was ignored. Plaintiff was left alone in a locked room for approximately 1½ hours before bond was posted and she was released from custody. At no point during these events was plaintiff informed of her Miranda rights or given the opportunity to make a phone call.

Shortly after this incident, Mikos placed a phone call to plaintiffs employer, St. Francis Hospital, during which the officer falsely informed the House Supervisor that plaintiff had threatened both Pacetti and him, and that plaintiff should be removed from her position as an Emergency Room Secretary. The phone call resulted in an investigation by the hospital's administration, but ultimately the investigation exonerated plaintiff. Plaintiff was also acquitted of the charges of battery and resisting arrest on October 10, 2000.


In ruling on a motion to dismiss for failure to state a claim, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A claim may be dismissed only if it is beyond doubt that under no set of facts would plaintiffs allegations entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46; Travel All Over the World, 73 F.3d at 1429-30. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).


I. Count IV — State Law Malicious Prosecution Claim Against Defendants Pacetti and Mikos

To state a claim for malicious prosecution under Illinois law, plaintiff must allege: (1) the commencement or continuance of a legal proceeding by defendants; (2) the termination of the proceeding in favor of the plaintiff (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff. Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). Moreover, the existence of probable cause to arrest is a complete defense to malicious prosecution under Illinois law.*fn1 Kies v. City of Aurora, 156 F. Supp.2d 970, 981 (N.D. Ill., 2001); Penn v. Chicago State Univ., 162 F. Supp.2d 968, 975 (N.D. Ill., 2001).

Defendants move to dismiss Count IV, arguing that there was probable cause for arrest. In support of this motion, defendants attach a transcript of the criminal court proceedings and argue that the court can view this transcript by relying upon Venture Assoc. Corp. v. Zenith Data Systems, 987 F.2d 429 (7th Cir. 1993). The court disagrees. Venture Assoc. stands for the proposition that documents that a defendant attaches to a motion to dismiss are considered part of the pleadings when they are, 1) referred to in the plaintiffs complaint, and 2) are central to her claim. Id. at 431. Venture Assoc., however, involved a breach of contract claim, in which the court chose to view the "offer to sell" and "letter of intent" because both documents were referred to in the complaint and were "central to Venture's claim as they constitute[d] the core of the parties' contractual relationship." Unlike the documents in Venture Assoc., the transcript of plaintiffs state court proceeding is neither central to her malicious prosecution claim, nor referred to in her complaint. Rather, the transcript is of plaintiffs trial on the charges of battery and resisting arrest, neither of which involved a decision on probable cause to arrest.

Therefore, to view the transcript would require the court to convert defendant's motion to dismiss into one for summary judgment. Rule 12(b) states, "If, on a motion asserting the . . . failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed. R. Civ. P. 12(b). The court declines to do so. When reviewing a motion to dismiss, the court's inquiry is generally limited to the factual allegations contained within the four corners of the complaint. Hill v. ...

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