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July 7, 2004.

NILDA GOMEZ, Plaintiff,

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge


Before the court is defendants' joint motion to dismiss or strike the amended complaint. For the following reasons, the motion is granted in part and denied in part.


  This is a civil rights action by plaintiff Nilda Gomez against the City of Chicago (the "City"), Chicago Police Lieutenant Anthony Riccio, and Chicago Police Officers George Melanis and Jorge Rivera (collectively, the "Officers"). Plaintiff claims that after her arrest for domestic battery, she was falsely charged with felony battery to police officers and subjected to a strip search and a body cavity search in retaliation for having filed a civil rights suit against defendant Riccio, among others.

  The complaint alleges the following facts, which we take as true for purposes of this motion. On August 17, 2000, Officers Melanis and Rivera arrested plaintiff at her home in Chicago pursuant to complaints of domestic battery and transported her to the police station. Lieutenant Riccio learned of plaintiff's arrest shortly thereafter. At the time, Lieutenant Riccio, along with other police officers, was a defendant in an action brought by plaintiff in the Circuit Court of Cook County, entitled Harris v. Nikeas.*fn1 (At the time of the amended complaint in this action, the Harris case was still pending.) Officers Melanis and Rivera are not defendants in the Harris case, but they were aware of it at the time of plaintiff's arrest.

  Later that evening at the police station, the Officers initiated two felony charges against plaintiff of battery to police officers. According to plaintiff, these charges are based on false claims that plaintiff had battered Officers Melanis and Rivera in the course of the domestic battery arrest and are in retaliation for plaintiff's suit against Lieutenant Riccio.

  Plaintiff also asserts that Lieutenant Riccio caused or directed a strip search and a body cavity search of plaintiff for the sole purpose of harassing her. In addition, Lieutenant Riccio verbally harassed plaintiff. Plaintiff was then booked at the Cook County Jail and held in custody pending a bond hearing on the false felony battery charges. Plaintiff claims that the Officers "have fabricated `evidence' in support of their claims, including witness statements, have communicated false and misleading information to various Cook County State's Attorneys, and have withheld exculpatory information from various Cook County State's Attorneys." (Amended Complaint, ¶ 12.)

  According to the amended complaint, the misdemeanor domestic battery charges were "dropped" (¶ 11), and plaintiff was "acquitted" of the felony battery charges (¶ 32).

  Plaintiff filed this action on August 19, 2002 and filed an amended complaint on October 15, 2003. The amended complaint sets forth the following claims: § 1983 claims for violation of plaintiff's Fourth, Fourteenth, and First Amendment rights (Counts I, II, and III); intentional infliction of emotional distress (Count IV); malicious prosecution (Count V); assault and battery (Count VI); and violation of 725 ILCS 5/103-1, a statute setting forth the rights of an arrestee (Count VII). The Officers, who are sued in their individual capacities, are named as defendants in all of the counts. The City is named as a defendant in Counts IV, V, VI, and VII, under a respondeat superior theory. Plaintiff seeks nominal, compensatory, and punitive damages as well as attorney's fees. Defendants now move to dismiss or strike the amended complaint. Plaintiff has failed to respond to defendants' motion.*fn2


  The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 294 (2d ed. 1990). Dismissal is appropriate only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

  A. Defendants' General Arguments

  1. False Arrest/Count I

  Defendants argue that plaintiff's admission that she was "initially arrested for domestic battery . . . defeats plaintiff's claims of false arrest." (Motion at 4.) It does not appear, though, that plaintiff is claiming that she was falsely arrested for domestic battery. Her complaint goes to the felony battery charges and the extent to which her seizure and search pertained to those charges, but not to the initial arrest for domestic battery. To the extent that she is claiming false ...

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