The opinion of the court was delivered by: JEANNE SCOTT, District Judge
This matter is before the Court on Defendant William A. Davis'
Motion to Dismiss (d/e 4). Plaintiff James McMillin (McMillin)
has filed a two-count Complaint (d/e 1) against Davis, an officer
of the Roodhouse, Illinois Police Department, based on
allegations relating to an incident which occurred following a
custody exchange of McMillin's children outside the Roodhouse
Police Station. Davis has filed a Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, the Motion to Dismiss is allowed without prejudice. BACKGROUND
The following scenario is set forth in McMillin's Complaint.
McMillin is separated from his wife, Janice McMillin (Janice).
The McMillins have two children. Pursuant to a civil court order,
the McMillins exchange custody of their children at the Roodhouse
Police Station. There was no requirement of police supervision
for the custody exchange, however, according to McMillin, some of
the exchanges were supervised by Roodhouse police officers.
Janice's father, Jim Holder, is a Roodhouse city alderman and a
member of the Roodhouse Police Committee. On various occasions,
McMillin complained to the Mayor of Roodhouse, the Illinois State
Police, and an F.B.I. agent about mistreatment McMillin believed
he was receiving from Roodhouse police officers.
During a custody exchange in March 2003, McMillin was involved
in an altercation with an Officer Chris Elliott at the Roodhouse
Police Department. On June 6, 2003, Officer Elliott was again
present during a custody exchange. According to the Complaint, on
June 8, 2003, Officer Elliott prepared a police report falsely
alleging that McMillin had committed the offense of Disorderly
Conduct. Presumably, the June 8th report was based on allegations arising out of the June 6th custody
exchange, although this is not clear from the Complaint. On June
9, 2003, a misdemeanor charge was filed against McMillin in
Greene County, Illinois based on Officer Elliott's report. A
warrant for McMillin's arrest on the misdemeanor charge was
issued on June 10, 2003. The charge was ultimately dismissed by
the Greene County State's Attorney on May 10, 2005.
Following a custody exchange on August 1, 2003, McMillin was
videotaping the area near the police department where the June 6,
2003, incident had occurred. McMillin's mother, Roberta, and his
two children were present. The video camera was strapped to
McMillin's arm, and as he was videotaping, he was attempting to
narrate the events that had transpired on June 6th. As McMillin
was videotaping, Janice approached him, escorted by Defendant
Davis. Janice asked McMillin to turn off the recorder, and said
she had something to tell him. McMillin refused to turn off the
recorder. Officer Davis then asked McMillin to turn the
microphone off. McMillin refused and informed Davis and Janice
that if they wanted to talk to him he would continue recording.
Davis again stated "Shut that off," to which McMillin responded
"I was told by the FBI that so long as I notify you. . . ."
Complaint, p. 5. Davis interrupted McMillin, stating "I tell you I don't care who told you that. I'm telling you right
now you shut that off, you either turn that microphone off . . .
shut it off." Id.
Roberta then spoke up, urging her son to leave. McMillin and
Roberta turned around and walked to their car. Janice and Davis
returned to the police station. McMillin continued taping as he
walked back to the car. McMillin did not enter the car, but
instead resumed his attempt to video the scene of the June
As McMillin continued taping, he noticed that Davis had exited
the police station and was walking back toward McMillin. McMillin
retreated from the sidewalk to the passenger side of his car,
where he stood behind the open car door. As Davis approached,
McMillin told Roberta to "Dial 9-1-1." Complaint, p. 5. Roberta
responded, "Where's the phone. Dial it. Keep the camera on. Oh,
give it to me. Give me the camera." Id. McMillin alleges that,
immediately after Roberta said "Give me the camera," Davis
tackled McMillin, knocking him to the ground. McMillin was,
however, able to successfully dial 9-1-1 as Davis was marching
toward him. Davis alleges that, at the time Davis tackled him,
Davis demanded that McMillin give him the camera.
When McMillin was tackled, the camera fell from his hand, but remained strapped to his arm. McMillin fell on top of the camera,
which went dead. McMillin alleges that Davis stepped on his left
hand, broke his glasses and drove his knee into McMillin's back.
Davis then released McMillin and allowed him to stand up. At that
point, Roberta picked up the video camera. When McMillin stood
up, he put his cell phone to his ear and spoke with the 9-1-1
operator. Davis asked McMillin who was on the phone. When
McMillin responded that he was talking to a 9-1-1- operator,
Davis took the phone from him. Davis spoke with the dispatcher
for a moment and then hung up. Davis returned the phone to
McMillin, and told McMillin that it was a crime to file a false
complaint against a police officer.
The Complaint alleges that Davis then removed his handcuffs
from his belt and began jabbing the handcuffs into McMillin's
chest, stating "Go ahead and resist," "You don't want to resist
me," and "I'll arrest you for something and this time you won't
have money for bail." Complaint, ¶ 34. Roberta pointed the
camera at Davis, but it was no longer recording. Davis then
permitted McMillin, Roberta, and the children to leave.
Davis then prepared a police report of the incident, the body
of which is set forth in the Complaint. Complaint, ¶ 39.
According to the Complaint, Davis' report alleged that McMillin obstructed
justice. As a result of Davis' report, a criminal complaint was
filed against McMillin in Greene County on August 6, 2003,
charging McMillin with "Obstructing a Police Officer," and a
warrant was issued for his arrest. Id., ¶ 42-43. This case was
ultimately dismissed by the Greene Count State's Attorney on May
McMillin filed his Complaint in the present case on July 5,
2005. McMillin alleges numerous theories of relief pursuant to
42 U.S.C. § 1983 within the two counts of the Complaint.*fn1
Count I relates to the physical altercation between McMillin and
Davis on August 1, 2005. Count II relates to Davis' subsequent
police report. Davis moves to dismiss both counts.
For purposes of the Motion to Dismiss, the Court must accept as
true all well-pleaded factual allegations contained in the
Complaint and draw all inferences in the light most favorable to
McMillin. Hager v. City of West Peoria, 84 F.3d 865, 868-69
(7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). A
complaint should not be dismissed unless it appears beyond doubt
that the plaintiff can prove no set of facts that would entitle
her to relief. Doherty v. City of Chicago, 75 F.3d 318, 322
(7th Cir. 1996).
Davis moves to dismiss, arguing: (1) McMillin's claims against
Davis in his official capacity are barred by the Eleventh
Amendment, (2) Davis is entitled to qualified immunity, and (3)
McMillin fails to state a claim in either Count I or Count II. In
light of McMillin's request to replead, Davis' Motion to Dismiss
is allowed without prejudice. In accordance with his request,
McMillin is given leave to replead his claims against Davis, in
his individual capacity, for use of ...