United States District Court, S.D. Illinois
November 4, 2005.
ARTHUR FOULKS and PERRY FOULKS, a minor child by his father and next friend, ARTHUR FOULKS, Plaintiffs,
CECIL TODD EMERY, et. al., Defendants.
The opinion of the court was delivered by: JAMES FOREMAN, District Judge
MEMORANDUM AND ORDER
Before the Court is a motion to strike and dismiss claims and
prayers for damages from plaintiffs' amended complaint, (Doc.
36), filed by Cecil Todd Emery, Mickey Rodgers, and the Village
of Pulaski, (Doc. 47), and plaintiffs' response (Doc. 54). Also
before the Court is plaintiffs' motion to strike and dismiss
affirmative defenses (Doc. 49) and defendants' response (Doc.
51). These motions are discussed below.
The following allegations are from plaintiffs' complaint. On
June 9, 2003, plaintiff Perry Foulks went inside his house and
told his father, Arthur Foulks, that Police Officer Mickey
Rodgers was looking for one of Arthur's other children, Jamel
Foulks. Arthur told Perry to tell Officer Rodgers that Jamel was
not at home. Perry did, and Officer Rodgers apparently
disbelieving Perry, called Officer Todd Emery to the scene. When
Officer Emery arrived, the two officers decided to call for
backup from both the Illinois State Police and the Pulaski County
Sheriff's Department. Shortly thereafter, the Foulks' residence was surrounded by
Illinois State and Village of Pulaski police officers. Master
Sergeant Jon Wright asked if he could enter the residence, and
Arthur Foulks asked if he had a warrant. Sergeant Wright
responded no. Thereafter, Sergeant Wright entered the residence
by climbing through a bedroom window. Shortly thereafter, Officer
Emery kicked open the front door and entered the residence. All
of the defendant officers then entered and searched the residence
for Jamal Foulks.
Thereafter, officers arrested Perry Foulks, took him to a
detention center and detained him for several days. They then
placed him on house arrest and released him. The Pulaski County
State's Attorney charged Perry Foulks with aggravated battery,
obstructing justice, resisting a police officer, and aggravated
assault. Perry Foulks pleaded guilty to aggravated battery,
resisting a police officer and aggravated assault, and the
obstruction of justice charge was dismissed.
Based on these events, plaintiffs have sued all of the
defendants for violating their constitutional rights under
42 U.S.C. § 1983 (Counts I, III). Plaintiffs have also sued the
individual defendants for false arrest, illegal imprisonment,
illegal search of residence, illegal search and seizure of
person, and malicious prosecution under Illinois law (Count II).
The pending motions are discussed below.
II. Defendants' Motion to Strike and Dismiss.
Defendants Cecil Todd Emery, Mickey Rodgers, and the Village of
Pulaski have filed a motion to strike and dismiss certain claims
and prayers for damages from plaintiffs' amended complaint. This motion is discussed below.
A. Plaintiffs' Claims for False Arrest/Imprisonment.
Defendants Emery, Rodgers, and Village of Pulaski state that
plaintiffs have failed to state a claim for either false arrest
or false imprisonment. Specifically, citing Williams v.
Schario, 93 F.3d 527, 528-29 (8th Cir. 1996), defendants argue
that the United States Court of Appeals for the Eighth Circuit
has held that a conviction pursuant to a guilty plea is a
complete defense to a civil rights action alleging that an arrest
was made without probable cause. Here, however, plaintiffs allege
that defendants arrested Perry after they illegally entered the
residence. As such, even if the officers did have probable cause
to arrest Perry, a warrantless entry into the home would be per
se unreasonable unless the police can show that it falls within
an exception based on exigent circumstances. United States v.
Richardson, 208 F.3d 626, 629 (7th Cir. 2000) (citations
omitted); see also Thurmond-Green v. Hodges, 128 Fed.Appx. 551
(8th Cir. 2005) (citations omitted) (distinguishing
Williams v. Schario on the grounds that: 1) the arrestee
apparently did not plead guilty to, and was not convicted of, the
offense for which he was arrested; and 2) the arrestee alleged he
was arrested after officers had illegally entered his home). See
also Sheik-Abdi v. McClellan, 37 F.3d 1240 (7th Cir. 1994)
(citations omitted) (an unconstitutional entry into the home
will vitiate the legitimacy of any search or seizure effected on
that occasion because the privacy and solitude of the home are at
the core of the Fourth Amendment's protection). As such,
plaintiffs' claim for false arrest and imprisonment survives
defendants' motion to dismiss. Defendants' motion to dismiss the false arrest and imprisonment claims on these grounds is denied.
Defendants also argue that under Heck v. Humphrey,
512 U.S. 477 (1994), plaintiffs' § 1983 claims would necessarily imply the
invalidity of his Perry Foulks' convictions and/or sentences,
thus, this lawsuit cannot go forward unless his convictions or
sentences have already been invalidated. While it is true that
Heck held that a § 1983 plaintiff seeking damages for an
allegedly unconstitutional conviction or imprisonment, (or for
other harms caused by unlawful actions that would render a
conviction or sentence invalid), has no cause of action until the
conviction or sentence is reversed, (or otherwise expunged or
invalidated), the United States Court of Appeals for the Seventh
Circuit has noted that "a wrongful arrest claim, like a number of
other Fourth Amendment claims, does not inevitably undermine a
conviction; one can have a successful wrongful arrest claim and
still have a perfectly valid conviction." Booker v. Ward,
94 F.3d 1052, 1056 (7th Cir. 1996) (citations omitted). Here,
the Court finds that Perry Foulks' convictions for aggravated
battery, resisting a police officer, and aggravated assault could
be supported by other evidence and are not necessarily undermined
by plaintiffs' § 1983 claims. Accordingly, defendants' arguments
are to no avail, and defendants' motion to dismiss plaintiffs'
federal and state law claims for false arrest and false
imprisonment is denied.
B. Plaintiffs' Claims For Malicious Prosecution.
Defendants have moved to dismiss plaintiffs' federal and state
law claims for malicious prosecution. As noted by defendants,
plaintiffs may not maintain a federal action under 1983 for
malicious prosecution. Smith v. Lamz, 321 F.3d 680, 684
(7th Cir. 2003) (citing Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir.
2001)). To state a claim for malicious prosecution under Illinois
law, plaintiffs are required to allege facts showing: (1)
commencement or continuation of a judicial proceeding by the
defendants, (2) termination of the prosecution in Perry Foulks'
favor in a manner indicative of his innocence, (3) the absence of
probable cause for the proceeding, (4) the presence of malice,
and (5) resulting damages. Allen v. Berger, 784 N.E.2d 367, 369
(Ill.App. 1st Dist. 2002) (citations omitted). Plaintiffs
concede that they cannot establish these elements with respect to
the charges other than the obstruction of justice. With regard to
the obstruction of justice charge, however, plaintiffs allege
that defendants made knowingly false police reports that were
supplied to the Pulaski County State's Attorney who initiated the
charge against Perry Foulks. "When a person makes a knowingly
false report to a prosecuting officer, the resulting prosecution
is attributable to that person." Allen, 784 N.E.2d at 369
(citations omitted). Accordingly, defendants' motion to dismiss
plaintiffs' claims for malicious prosecution is granted in part
and denied in part. Plaintiffs' claims for malicious prosecution
are dismissed except for plaintiffs' state-law claim for
malicious prosecution with regard to the obstruction of justice
C. Plaintiffs' Requests for Punitive Damages and Attorney's
Defendants Emery, Rodgers and Village of Pulaski have moved to
strike plaintiffs' requests for punitive damages and attorney's
fees. Plaintiffs concede that their punitive damage requests
should be stricken, (Doc. 54, p. 8). Accordingly, defendants'
motion to strike plaintiffs' request for punitive damages is
granted. With regard to attorney's fees, plaintiffs' request for attorney's fees related to the federal
claims is allowed. See 42 U.S.C. § 1988. Plaintiffs' attorney
fee request related to the state law claims is disallowed.
Morris B. Chapman & Associates, Ltd. v. Kitzman,
739 N.E.2d 1263, 1271 (Ill. 2000) (citations omitted) ("Illinois generally
follows the `American Rule': absent statutory authority or a
contractual agreement between the parties, each party to
litigation must bear its own attorney fees and costs, and may not
recover those fees and costs from an adversary). Accordingly,
defendants' motion to strike plaintiffs' request for punitive
damages and attorney's fees is granted in part and denied in
part. Plaintiffs' request for punitive damages is stricken.
Plaintiffs' request for attorney's fees with regard to the
state-law claims is stricken.
D. Plaintiffs' Official Capacity Suits against Individual
Defendants have moved to dismiss plaintiffs' claims against the
individual defendants in their official capacities. Defendants
are correct. Here, plaintiffs have named the Village of Pulaski
as a defendant. When a plaintiff names a local government as a
defendant in a § 1983 action, claims against government officials
in their official capacities are redundant. See Jungels v.
Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987) ("[T]he complaint
names the mayor as a defendant in his official capacity . . .
which is the equivalent of suing the city."). Accordingly,
defendants' motion to dismiss plaintiffs' official capacity
claims against the individual defendants is granted. Plaintiffs'
official capacity claims under § 1983 against Cecil Todd Emery,
Mickey Rodgers, Randy Kern and John Doe are dismissed. III. Plaintiffs' Motion to Strike and Dismiss.
Plaintiffs have filed a motion to strike and dismiss the
affirmative defenses of Master Sergeant Jon Wright, Sergeant
Daryl Grammar, and Trooper Tammy Turner. Specifically, plaintiffs
move to strike defendants' affirmative defenses of qualified
immunity, sovereign immunity, public official immunity, estoppel,
and defendants' affirmative defense that plaintiffs' claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Under Federal Rule of Civil Procedure 12(f), a court may strike
from a pleading "any redundant, immaterial, impertinent, or
scandalous matter." Fed.R.Civ.Proc. 12(f). As a general rule,
motions to strike are "disfavored" and are infrequently granted.
Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286,
1294 (7th Cir. 1989). The decision to grant or deny a motion to
strike is vested in the trial court's sound discretion. Talbot
v. Robert Matthews Distrib. Co., 961 F.2d 654, 664-65 (7th Cir.
"Motions to strike are not generally favored or granted unless
the plaintiff can prove that the defense is insufficient and
could not, after the development of a fuller record, succeed in
defeating the plaintiff's claim." Ring v. Board of Educ.
Community School Dist. No. 60, 2004 WL 1687009 at *2 (N.D.Ill.
2004) (citing Lirtzman v. Spiegel, Inc., 493 F.Supp. 1029, 1031
(N.D.Ill. 1980)). In fact, before a motion to strike can be
granted, the court must be convinced that "no questions of fact
exist, and any questions of law are clear and undisputed." Upon
review of the pleadings and the facts alleged in this case, the
Court finds that additional factual development is necessary to
determine the validity of defendants' affirmative defenses. Accordingly,
plaintiffs' motion to strike defendants' affirmative defenses is
The motion to strike and dismiss claims and prayers for damages
from plaintiffs' amended complaint filed by Cecil Todd Emery,
Mickey Rodgers, and the Village of Pulaski, (Doc. 47), is
GRANTED IN PART and DENIED IN PART. Plaintiffs' claims for
malicious prosecution are DISMISSED WITH PREJUDICE except for
plaintiffs' state-law claim for malicious prosecution with regard
to the obstruction of justice charge. Plaintiffs' request for
punitive damages is STRICKEN. Plaintiffs' request for
attorney's fees with regard to the state-law claims is
STRICKEN. Plaintiffs' official capacity claims against Cecil
Todd Emery, Mickey Rodgers, Randy Kern, and John Doe are
DISMISSED. Plaintiffs' motion to strike and dismiss affirmative
defenses, (Doc. 49), is DENIED.
IT IS SO ORDERED.
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