The opinion of the court was delivered by: J. Phil Gilbert Judge
THIS MATTER comes before the court on defendant Tony L. Kendrick's ("Kendrick") motion to strike and dismiss a claim and a prayer for damages from plaintiff's complaint (Doc. 18). Kendrick asks the Court (1) to dismiss the claim in Count I, a claim under 42 U.S.C. § 1983, against him in his official capacity on the grounds that that claim is duplicative of the claim against the City of Johnston City and (2) to strike the prayer against him for punitive damages in Count II, a state law battery claim, on the grounds that such relief is barred by § 2-102 of the Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10/1-101 et seq.
The complaint in this case alleges that on April 9, 2004, Kendrick and co-defendant Paul Grear, acting as police officers of the City of Johnston City, arrested plaintiff Mark S. Campbell ("Campbell"). Campbell alleges that Kendrick used excessive physical force during Campbell's confinement and failed to obtain needed medical treatment to treat Campbell's resulting injuries.
Campbell is suing Kendrick in his individual and official capacities under 42 U.S.C. § 1983 for using excessive force and being deliberately indifferent to his resulting serious medical needs (Count I) and for battery under Illinois state law (Count II).*fn1 Campbell seeks punitive damages for each count.
II. § 1983 Official Capacity Claim -- Count I
Campbell concedes that his § 1983 claim against Kendrick in his official capacity is duplicative of his § 1983 claim against the City of Johnston City and should be dismissed without prejudice. The Court finds, however, that striking pursuant to Federal Rule of Civil Procedure 12(f), not dismissal, is the appropriate manner of disposing of the claim. Under Rule 12(f), upon a motion or upon its own initiative, "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The § 1983 claim against Kendrick in his official capacity is redundant and will therefore be stricken.
III. Prayer for Punitive Damages -- Count II
Kendrick's second request cannot be resolved so quickly. Kendrick asks that the Court strike the prayer against him for punitive damages in Count II on the grounds that § 2-102 of the Tort Immunity Act bars such relief. Again, this request falls under Rule 12(f).*fn2 The burden on a motion to strike is upon the moving party. See Vakharia v. Little Co. of Mary Hosp. & Health Care Ctrs., 2 F. Supp. 2d 1028 (N.D. Ill. 1998).*fn3
Section 2-102 of the Tort Immunity Act provides, in pertinent part:
[N]o public official is liable to pay punitive or exemplary damages in any action arising out of an act or omission made by the public official while serving in an official executive, legislative, quasi-legislative or quasi-judicial capacity, brought directly or indirectly against him by the injured party or a third party.
Kendrick argues that he is a "public official" and that this provision applies because he was acting in an official executive capacity in his contact with Campbell. In support of this argument, Kendrick cites Reese v. May, 955 F. Supp. 869 (N.D. Ill. 1996), a case in which an arrestee sought punitive damages for the actions of a police officer during his investigation and prosecution. The court ultimately concluded that § 2-102 barred such claims.
Campbell, on the other hand, argues that Reese is distinguishable from the case at bar and, in any case, that the holding in Reese is too broad. He further argues that the phrase "public official" is not synonymous with the phrase "public employee" and does not include run-of-the-mill police officers like Kendrick, an argument not discussed in Reese. Campbell believes that as a consequence § 2-102 has no effect on the claims in Count II against Kendrick.
The Court notes that Illinois courts and higher federal courts have been silent on the scope of § 2-102 in this type of situation, forcing this Court to turn to other district courts' decisions for guidance. Thus, the Court first examines Reese, the sole case upon which Kendrick relies to support this part of his motion. In that case, a municipal police officer examined Reese's driver's license in connection with a traffic stop. Reese, 955 F. Supp. at 871. The officer suspected that the license was altered, so he seized it. Id. Upon further investigation, however, the officer learned that the license did not contain any false information. Id. Nevertheless, a second officer was assigned to investigate the possible license alteration, and that officer swore in a criminal complaint that Reese had altered his license. Id. A warrant was issued, and Reese was arrested, but the criminal charges were ultimately dismissed. Id. at 872. Reese then sued the two officers for false arrest, false ...