United States District Court, N.D. Illinois, Eastern Division
June 14, 2004.
CYNTHIA WEBER, Plaintiff,
MICHAEL KELLER and the LAKE COUNTY SHERIFF DEPARTMENT and the COUNTY OF LAKE, Defendants.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Cynthia Weber ("Weber"), has filed a five-count
Amended Complaint against defendants, deputy sheriff Michael
Keller ("Keller"), the Lake County Sheriff Department ("Sheriff")
and the County of Lake ("County"). In Count I, Weber brings forth
a state law claim against Keller for malicious prosecution. In
Counts II and III, she alleges Fourth Amendment violations
against Keller pursuant to 42 U.S.C. § 1983. In Count IV, she
alleges a state law claim against both the Sheriff and County
under a respondeat superior theory. Finally, Count V is a state
law claim against the Sheriff and County for indemnification
under 745 ILCS 10/9-102. Before the court is the Sheriff's and
County's motion under Rule 12(b)(6), Fed.R. Civ. P., to dismiss
Counts IV and V. This court's jurisdiction is invoked pursuant to
28 U.S.C. § 1343(a) and 1367. For the reasons set forth below,
the motion is denied.
MOTION TO DISMISS STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the sufficiency of the complaint for failure
to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if
it appears beyond a doubt that the plaintiff can prove no facts
in support of its claim that would entitle it to relief. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l
Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In
ruling on the motion, the court accepts as true all well pleaded
facts alleged in the complaint, and it draws all reasonable
inferences from those facts in the plaintiff's favor. Dixon v.
Page, 291 F.3d 485, 486 (7th Cir. 2002); Jackson v. E.J.
Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999).
ALLEGATIONS OF THE COMPLAINT
According to Weber's Amended Complaint, which is taken as true
for purposes of this motion, on or about December 9, 2001, Weber
was arrested by Keller at her home. Pursuant to the arrest,
Keller drafted police reports containing misrepresentations and
false and misleading information. Weber alleges that this
information was designed to ensure that she would be
incarcerated. Based on Keller's reports, Weber was charged with
(1) endangering the life of a child, (2) resisting a peace
officer, (3) battery, and (4) assault. Weber contends that the
charges were derived from a factual scenario lacking in either
probable cause or reasonable suspicion and that Keller did not
have a lawful justification for arresting her.
Additionally, Weber alleges that Keller used excessive,
unreasonable and unnecessary force during her arrest. This arrest
is alleged to have caused Weber serious and permanent personal
injury, pain, suffering and mental anguish. Weber alleges that
Keller's conduct was deliberate with reckless indifference to her
rights. Weber further alleges that Keller's actions proximately
caused her to be incarcerated and sent to a mental institution. Weber was tried and acquitted of the four charges listed above.
In securing this acquittal, she hired an attorney and was
required to pay out attorneys' fees.
Count IV of Weber's Complaint is a state law respondeat
superior claim against the Sheriff and County. Count IV relates
back to Weber's state law malicious prosecution claim alleged in
Count I. For the doctrine of respondeat superior to apply,
there must be an employer/employee relationship. See Palmer v.
Miller, 380 Ill. 256, 259-60, 43 N.E.2d 973, 975 (1942). A
deputy sheriff is an employee of the sheriff, who is authorized
by statute to appoint and hire deputies. 55 ILCS 5/3-6008;
Carver v. Sheriff of LaSalle County, 203 Ill.2d 497, 513,
787 N.E.2d 127, 137 (2003). The County moves to be dismissed
from this Count on grounds that it is not Keller's employer.
In response, Weber argues that a deputy sheriff is an employee
of the County. Weber apparently means to suggest that since a
sheriff hires a deputy, and since a sheriff's office is funded by
the county board, the County must be the principal of both the
Sheriff and his deputies. Weber's analysis is flawed in two
respects. First, as a general matter, "the source of funds need
not coincide with the identity of the employer." Carver v.
Sheriff of LaSalle County, 243 F.3d 379, 382 (7th Cir. 2001).
Moreover, Weber's argument runs contrary to the Illinois Supreme
Court's decision in Moy v. County of Cook, 159 Ill.2d 519,
640 N.E.2d 926 (1994). In Moy, the court addressed the issue of
whether Cook County "may be held vicariously liable under the
doctrine of respondeat superior for the alleged negligent
conduct of the Cook County sheriff." Id. at 521, 640 N.E.2d at
926. In answering no, the Court explained that the sheriff is "a
county officer and, as such, is not in an employment relationship
with the County of Cook." Id. at 532, 640 N.E.2d at 931. Given that a sheriff is not in an employment
relationship with a county, and given that sheriffs are empowered
to appoint and hire deputies, the court rejects Weber's
contention that the County is the employer of Keller.
Nonetheless, while no employment relationship may exist, this
does not mean that the County should be dismissed. In Carver v.
Sheriff of LaSalle County, 243 F.3d 379 (7th Cir. 2001), the
Seventh Circuit certified to the Illinois Supreme Court the
following question: "whether, and if so when, Illinois law
requires counties to pay judgments entered against a sheriff's
office in an official capacity." Id. at 386. The Illinois
Supreme Court ruled that "[b]ecause the office of the sheriff is
funded by the county, the county is therefore required to pay a
judgment entered against a sheriff's office in an official
capacity." 203 Ill.2d at 498, 787 N.E.2d at 129. As a corollary
of the Illinois Supreme Court's decision, after the certification
question was answered, the Seventh Circuit noted that "a county
in Illinois is a necessary party in any suit seeking damages from
an independently elected county officer (sheriff, assessor, clerk
of court, and so on) in an official capacity." Carver v.
Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003).
Since in this case the Sheriff may be liable under a theory of
respondeat superior and because the County would be required to
pay if Weber succeeds in her law suit, the court will not dismiss
the County from this action. The County's interest "rises and
falls" with that of the Sheriff. See Toma v. County of Kane,
No. 01 C 7205, 2004 WL 1093497, at *1 n. 1 (N.D. Ill. May 3,
2004); Cobbs v. Sheahan, No. 03 C 3841, 2003 WL 22514523, at
*1 (N.D. Ill. Nov. 3, 2003) ("Because state law requires the
county to pay if a plaintiff is successful in such a suit, the
county must be named as a defendant so that it may veto potential
settlements proposed at its expense."). The Sheriff and County also move to dismiss the Count V claim
for indemnification under 745 ILCS 10/9-102. That statute
provides that a local public entity is "directed to pay any tort
judgment or settlement for compensatory damages for which it or
an employee while acting within the scope of his employment is
liable." The Sheriff and County argue that this claim for
indemnification does not arise until a judgment has been entered
against one of its employees.*fn1
This argument, however, runs directly contrary to the Seventh
Circuit's decision in Wilson v. City of Chicago, 120 F.3d 681
(7th Cir. 1997). In Wilson, the court noted that while the
statute only "comes into play" when a judgment is formally
entered against an employee, "[i]t does not follow that
[plaintiff] could not proceed under section 9-102 until the
judgment against [the employee] became final." Id. at 685. The
court noted that a plaintiff "in order to expedite the collection
of a judgment, could ask the court to enter a judgment against [a
local public entity] that would take effect when and if a
judgment against [the employee] was entered and no longer
After Wilson, judges in this district have routinely allowed
plaintiffs to bring indemnification claims under § 9-102 against
municipalities in their complaints against employees. See, e.g.,
Jamison v. Luster, No. 03 C 1304, 2003 WL 23139348, at *2
(N.D. Ill. December 22, 2003); Carroccia v. Anderson,
249 F. Supp.2d 1016, 1028-29 (N.D. Ill. 2003); Tibbs v. City of
Chicago, No. 02 C 2970, 2003 WL 288946, at *2 (N.D. Ill. Feb.
10, 2003) (citing Savin v. Robinson, No. 01 C 4121, 2001 WL
1191192 (N.D. Ill. 2001); Burton v. Sheahan, 2001 WL 111028
(N.D. Ill. 2001); Anton v. Sheriff of DuPage County,
47 F. Supp.2d 993 (N.D. Ill. 1999)); Cortez v. Defendant Deputy Sheriffs, No. 99 C 2397,
1999 WL 569542, at *2 (N.D. Ill. July 28, 1999). Although two
cases in this district have dismissed § 9-102 claims brought
before judgment as premature, see Atlas v. City of North
Chicago, No. 03 C 4814, 2004 WL 816456, at *8-9 (N.D. Ill. March
12, 2004); Concealed Carry Inc. v. City of Chicago, No. 02 C
7088, 2003 WL 22283948, at *9 (N.D. Ill. Sept. 30, 2003), neither
case distinguishes nor even mentions Wilson. This court
declines to follow these decisions. The motion to dismiss the
Count V claim is denied.
For the reasons stated above, the Sheriff and County's motion
to dismiss is denied [#11]. The Sheriff and County are directed
to answer the remaining portions of Weber's Amended Complaint
within 14 days of entry of this order. This case will be called
for a status on July 15, 2004 at 9:30 a.m.