The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
This case comes before the Court pursuant to its diversity jurisdiction. 28 U.S.C. § 1332(a). Plaintiff Muhammad Asad Ali, M.D. has sued defendant Wal Mart Stores, Inc. in a three count complaint alleging state law claims of false arrest, battery by reason of race under 720 ILCS 5/12-7.1, and intentional infliction of emotional distress. Wal Mart has moved for summary judgment on the last two claims only. For the following reasons, the Court grants the motion.
Ali and his mother, Kahkushan Arshad, are originally from Pakistan. On November 19, 2003, they were shopping together at a Sam's Club in Evanston and decided to purchase some Brita water filters. According to Ali, he noticed an opened box of Brita filters sitting on a shelf, picked it up, placed it in his shopping cart, and continued shopping. When Ali reached the checkout stand, the cashier noticed that the box was opened and sealed it with a piece of tape. Ali paid for the items in his shopping cart and headed towards the exit.
Ali and his mother left the building and were quickly stopped by a Wal-Mart security guard, John Paul Arellano, who asked Ali if he had forgotten to pay for any of the items in his shopping cart. When Ali answered no, Arellano grabbed him by the arm and led him to an office inside the store. Arellano accused Ali of trying to steal a Brita filter by placing a seventh filter in a box of six. There was indeed a seventh filter in the box, but Ali denied stealing the filter and insisted that it was already in the box when he removed it from the shelf. Nevertheless, Arellano called the police and completed a "Loss Prevention Apprehension Report." In that report, which includes a space for a description of the suspect, Arellano noted (incorrectly) that Ali was Indian. The police arrived, handcuffed Ali, escorted him out of the store, and drove him to the police station. He remained there for four to five hours until his brother and mother picked him up. A Cook County judge eventually acquitted Ali of theft after a bench trial in state criminal court.
Ali claims that the experience caused him a great deal of anxiety. Because he is in the United States on a visa based on his profession, he was worried that he would be deported and that his mother and sister would have no one to support them financially. He claims that he did not receive any counseling for his anxiety because he was concerned that if he did, other doctors would find out what happened.
On a motion for summary judgment, the law requires the Court to consider the evidence and draw all reasonable inferences in favor of Ali, the non-moving party in this case. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must look at the evidence "as a jury might, construing the record in the light most favorable to the non-movant and avoiding the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
1. Battery by Reason of Race
Illinois provides a civil remedy for any victim of a hate crime. 720 ILCS 5/12-7.1. A hate crime occurs when, among other things, an individual commits a battery by reason of the actual or perceived race of another. Id. Ali claims that a jury reasonably could find that Arellano committed a battery against him by reason of his race when Arellano grabbed Ali by the arm and led him back to the store. Ali claims that because his mother was wearing traditional Pakistani dress at the time of the incident and because of the notation in the apprehension report that he was "Indian," a jury reasonably could find that the battery was racially motivated.
Ali cites two cases in support of his argument: Johnson v. Smith, 878 F. Supp. 1150, 1153 (N.D. Ill. 1995), and Abdoh v. City of Chicago, 930 F. Supp. 311, 313 (N.D. Ill. 1996). In Johnson, the defendants were criminally convicted of burning a cross in the African-American plaintiffs' yard and throwing a brick through their window. 878 F. Supp. at 1152-53. The plaintiffs then sued the defendants in a civil suit for the same offense. Id. at 1153. The court held that, because of the criminal conviction, summary judgment for the plaintiffs was proper. Johnson does not control this case. Id. Arelleno was not convicted of a hate crime, and Ali's evidence is nothing like what is inherent in burning a cross.
In Abdoh, the court denied defendant's motion to dismiss because the plaintiff had adequately alleged that a police officer battered him because of his race. 930 F. Supp. at 313. The court did not consider whether the plaintiff offered reasons to support his allegation that the battery was by reason of race; it held only that the plaintiff satisfied the Federal Rules' relatively undemanding notice pleading requirements. Id. In this case, the issue is whether there is sufficient evidence for the claim to go to trial, not whether Ali has sufficiently pled his claim. Therefore, Abdoh does not control this case either.
Another case, which was not cited by the parties, addresses the type of evidence needed to prove that a defendant committed a crime by reason of race. People v. Davis, 285 Ill. App. 3d 875, 880, 674 N.E.2d 895, 898 (1996). In Davis, the court examined whether the evidence was sufficient to uphold the defendant's conviction for a hate crime. Id. Though the court recognized the issue was a close one, it held that the defendant's statement "F... you nigger," was enough for a jury reasonably to conclude that race motivated the defendant's attack. Id. Here, there was no such racial utterance or derogatory comment. Ali Dep. at 65. The only reference that Arellano made to Ali's race was in a standard report Arellano completed after Ali was stopped. The reference identified Ali as Indian, was not derogatory in any way, and is not evidence of racial animus. Ali also points to the fact that Arshad was wearing traditional Pakistani clothing and that Wal-Mart security guards pay attention to clothing during their ...