The opinion of the court was delivered by: J. GILBERT, District Judge
This matter comes before the Court on defendant James Michael
Riden's ("Riden") motion to dismiss the count of plaintiff John
D. Padgett's Complaint asserted against him for malicious
prosecution (Doc. 36). Padgett has responded to the motion (Doc.
I. Standard for Dismissal
Riden brings this motion under Federal Rule of Civil Procedure
12(b)(6). When reviewing a Rule 12(b)(6) motion to dismiss, the
Court accepts all allegations as true and draws all reasonable
inferences in favor of the plaintiff. Brown v. Budz,
398 F.3d 904, 908 (7th Cir. 2005); Holman v. Indiana, 211 F.3d 399, 402
(7th Cir. 2000). The Court should not grant a motion to dismiss
unless it appears beyond doubt that the plaintiff cannot prove
his claim under any set of facts consistent with the complaint.
Brown, 398 F.3d at 908-09; Holman, 211 F.3d at 405. "[I]f it
is possible to hypothesize a set of facts, consistent with the
complaint, that would entitle the plaintiff to relief, dismissal
under Rule 12(b)(6) is inappropriate." Brown, 398 F.3d at 909
(internal quotations omitted).
Accepting all allegations in the Amended Complaint as true and
drawing all reasonable inferences in the plaintiff's favor, the
Court finds the following relevant facts for the purpose of this motion. The Court sets forth the facts only generally, for
the issue to be decided in this motion does not require great
On April 25, 2005, defendant Thomas Perkins ("Perkins")
confronted plaintiff's decedent, John D. Padgett II ("John") and
made false accusations that John had spit on Perkins' truck.
Perkins drew a knife on John, but when it became apparent that
John was able to defend himself using martial arts, Perkins
retreated into his truck.
Riden, a Harrisburg, Illinois, policeman, soon arrived on the
scene and began to concoct a false story in consultation with
Perkins that shifted all blame for the confrontation to John.
Knowing the story to be false, Riden included it in his official
report, testified to it in court, pressured witnesses to change
their stories to support it, and planted evidence that tended to
corroborate it. Riden arrested John, who spent several days in
jail until bond was set. Ultimately, John was acquitted of all
charges at trial in October 2002.
As a result of Riden's and Perkins's actions, John suffered,
among other things, great emotional distress, which caused him to
commit suicide in December 2002. Padgett is pursuing this action,
including a claim for malicious prosecution against each
defendant, in his capacity as the administrator of John's estate.
Riden is not entitled to dismissal of Padgett's malicious
prosecution cause of action at this time. Riden asks the Court to
dismiss that claim on the grounds that it is personal to John and
did not survive his death. He cites Kent v. Muscarello,
293 N.E.2d 6 (Ill.App.Ct. 1973), in support of his argument. On the
other side, Padgett argues either that Riden misconstrues Kent
or that Kent was wrongly decided and that, in any case, the
Illinois Supreme Court would likely now hold that the Illinois
Survival Act ("Survival Act"), 755 ILCS 5/27-6, allows the
survival of suits like the one at bar.
Generally, a malicious prosecution action is a common law tort
that does not survive the injured party's death under common law.
See Shedd v. Patterson, 144 N.E. 5, 6 (Ill. 1924). If it
survives at all, it must be by virtue of the Survival Act, which
states, in pertinent part:
In addition to the actions which survive by the
common law, the following also survive: . . . actions
to recover damages for an injury to the person [and]
. . . actions against officers for misfeasance,
malfeasance, nonfeasance of themselves or their
deputies. . . .
755 ILCS 5/27-6. Padgett argues that this case falls into both
categories cited above: a personal injury action and an action
against an officer for malfeasance. Riden relies solely on Kent
to argue that this case falls into neither category.
The Court finds that Padgett may be able to prove a set of
facts consistent with those in the complaint showing that his
malicious prosecution action survives John's death under the
"officer malfeasance" provision of the Survival Act. Thus, the
Court need not address whether a malicious prosecution action can
ever be viewed as a personal injury action for Survival Act
purposes, whether Kent was wrongly decided, or what the
Illinois Supreme Court would decide were it presented with the
The inquiry begins, of course, with Kent v. Muscarello,
293 N.E.2d 6 (Ill.App.Ct. 1973). In Kent, the Illinois Appellate
Court for the Second District addressed both portions of the
Survival Act at issue in this case. In that case, an individual
sued two municipal policemen for malicious prosecution that he
claimed resulted in the activation or aggravation of thymus gland
cancer. Kent, 293 N.E.2d at 7. Before the case was resolved,
the individual died, and his executor sought to be substituted as
plaintiff. Id. The Court found that the malicious prosecution
action did not survive the injured person's death and refused to
allow the executor to maintain the action. Id. On appeal, the
Illinois Appellate Court held that it was well-settled in Illinois that a cause of action for malicious prosecution did not
survive under the Survival Act based on the nature of the claim.
Id. at 8. It further held that the malicious prosecution cause
of action did not survive under the "officer malfeasance"