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 dismiss claims and strike prayers for damages from plaintiff's complaint (Doc. 4).
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. Plaintiff Kacey B. Rousey has not responded to the motion.*fn1
The complaint in this case alleges that on September 4, 2004, Kendrick, acting as a police officer of the City of Johnston City, arrested plaintiff Kacey B. Rousey ("Rousey"). Rousey alleges that Kendrick unreasonably searched and seized him and used excessive physical force during his arrest and confinement. Rousey is suing Kendrick in his individual and official capacities and the City of Johnston City under 42 U.S.C. § 1983 for violation of the Fourth Amendment's prohibition on unreasonable search and seizure (Count I) and for battery under Illinois state law (Count II).*fn2 Rousey seeks punitive damages for each count.
II. § 1983 Official Capacity Claim -- Count I
Pursuant to Local Rule 7.1(c), the Court construes Rousey's failure to respond to Kendrick's motion as an admission 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. The Court examined this issue in Campbell v. Kendrick, No. 05-cv-4072-JPG when it granted Kendrick's motion to strike plaintiff Mark S. Campbell's ("Campbell") prayer for punitive damages:
Again, this request falls under Rule 12(f).*fn3 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).*fn4
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 ...