The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On October 15, 2003, Plaintiff Lidia Koifman was arrested at a Dominick's Finer Foods Store in Chicago, Illinois, and charged with disorderly conduct. The charges were "s.o.l.'d" ("stricken off with leave to reinstate") on November 17, 2003. Mrs. Koifman and her husband, Eugene, filed several civil actions arising out of the events of October 15, including two complaints in this court, one through counsel and one pro se. The two cases have now been consolidated, and after the withdrawal both of retained counsel and an attorney previously appointed by the court to represent them, the Koifmans have filed an amended complaint against Dominick's, store managers, certain Chicago Police Officers, and the City of Chicago.
All Defendants have moved to dismiss the amended complaint. Defendants Dominick's and its store manager, Mike Sullivan argue for dismissal pursuant to FED. R. CIV. P. 12(b)(6). The City of Chicago and Police Officer Defendants Reschke, Tojong, and Ronan contend the court should dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), which authorizes dismissal of a complaint filed in forma pauperis if the court concludes it is frivolous or malicious. For the reasons explained in this order, the Dominick's Defendants' motion is granted in part and denied in part. Although the court sympathizes with the City Defendants' frustration in responding to allegations that appear to embellish and contradict Plaintiffs' earlier sworn allegations, the motion to dismiss pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) is denied.
Plaintiffs' amended complaint alleges that on October 15, 2003, Plaintiff Lidia Koifman entered the Dominick's store at 1698-1743 West Howard in Chicago. (Amended Complaint, ¶ 11.) Plaintiffs allege, "[o]n information and belief," that Dominick's had experienced prior thefts and "prostitution by foreigners" at that location and, in response, had an agreed "joint concerted plan of action" with the Chicago Police Department, ("CPD"), under which Dominick's employees would identify suspected prostitutes for immediate arrest by CPD officers. (Id. ¶ 12.) Because she has a "heavy Russian accent," Lidia Koifman alleges, Dominick's manager Mike Sullivan identified her as a foreign prostitute and, pursuant to the agreement between Dominick's and CPD, Officers Herbert Reschke, Kenneth Tojong, and [first name unidentified] Ronan "physically restrained, hand cuffed and violently removed" her from the store. (Id. ¶¶ 13, 15, 16.) Plaintiff Eugene Koifman, who also speaks with a Russian accent, went to the police station and demanded to see his wife, but was directed to leave. (Id. ¶ 17, 19.) When he refused to do so, Plaintiffs allege, Mr. Koifman "was physically restrained for some time" (Plaintiffs do not say by whom) by a law enforcement maneuver "commonly referred to as a 'take into a pencil-box' or a 'take down'" and was called names, including "'ugly freaking Jew, fucking Jew.'" (Id. ¶¶ 20, 21.)
Plaintiffs allege that all Defendants violated their rights under the Fourth and Fourteenth Amendments, their rights to equal protection and to due process (Count I); that all Defendants are liable under state law for assault, battery, and false imprisonment (Counts II, III, and IV), and that all Defendants' conduct constitutes the intentional infliction of emotional distress (Count V); and that Defendants have committed a "hate crime" (Count VI). They seek $3,000,000 in damages. (Id. page 10a.)
I. City Defendants' Motion to Dismiss
Officers Reschke, Tojong, and Ronan, and the City of Chicago, move for dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Under that statute, when an individual seeks leave to file a civil action without prepayment of fees, the court is directed to analyze the claims set forth in the complaint and dismiss them if the court determines that the case is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A claim is frivolous, for purposes of this section, only when it lacks an arguable basis in law or in fact. See, e.g., Baker v. AME Church Judicial Council, 320 F. Supp. 2d 786, 788 (N.D. Ind. 2004) (collecting cases, including Denton v. Hernandez, 504 U.S. 25, 31 (1992)). The standard for review of a complaint for failure to state a claim under § 1915(e)(2)(B)(ii) is the same standard used in reviewing a complaint under Rule 12(b)(6). See DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). The court assumes the plaintiff's factual allegations are true and draws all reasonable inferences in the plaintiff's favor. See Strasburger v. Bd. of Educ., 143 F.3d 351, 359 (7th Cir. 1998). Under that standard, a complaint need only set forth a "short and plain statement" of the claim that will give the defendants fair notice of the nature of the claim and the ground on which it rests. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).
The City Defendants have not argued that the complaint fails to meet that generous standard. Plaintiffs have in fact stated claims for relief: Put very simply, Plaintiffs have alleged that Defendants arrested Lidia Koifman without probable cause and used excessive force on her and, later, on her husband Eugene. Instead, the City Defendants argue that the court should consider the Koifmans' previous filings: two complaints in the Chicago Commission on Human Relations, a charge in the Illinois Department of Human Rights, two lawsuits in the Circuit Court of Cook County, and two federal lawsuits, one through counsel and one pro se, filed the same day in this court. The allegations in those pleadings, Defendants note, are inconsistent with one another in a way that suggests Plaintiffs have embellished and exaggerated their claims over time. Defendants assert, in addition, that Plaintiffs have made untrue statements to the court concerning the involvement of attorneys in their case. In the City Defendants' view, Plaintiffs' submissions support the conclusion that this litigation is filed in bad faith and for purposes of harassment.
The court sympathizes with the frustration the City Defendants may feel in responding to what appear to be shifting allegations. The court itself is dismayed by Plaintiffs' apparent lack of candor regarding their prior representation by retained and appointed attorneys (both of whom have since withdrawn). Statements made in earlier sworn submissions are, of course, a basis on which Plaintiffs may be impeached. See Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 640 (7th Cir. 2004) (collecting cases). The circumstances here do not, however, in the court's view, call for dismissal of this case pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiffs' allegations may be exaggerated, and discovery may even prove them completely false, but the notion that an individual was subject to false arrest or excessive force is not, on its face "inconceivable fantasy." Cf. Gale v. Williams, 154 Fed. Appx. 494, 495 (7th Cir. 2005). The City Defendants' motion to dismiss on this basis is denied.
II. Dominick's Defendants' Motion to Dismiss
Dominick's Finer Foods, Inc., and store manager Mike Sullivan have moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6).*fn1 They have made six arguments in support of this motion: They contend, first, that 42 U.S.C. § 1983 does not provide a basis for a civil rights complaint against private actors, including Dominick's and Sullivan and, second, that Plaintiffs' conspiracy allegations do not support naming the Dominick's Defendants on their due process and equal protection claims. Third, they contend that Plaintiffs' allegations of assault, battery, and false imprisonment are insufficient because there is no allegation that any Dominick's employee took such action against Plaintiffs. Dominick's Defendants assert that Plaintiffs' tort claims and their "hate crime" claims are preempted by the Illinois Human Rights Act. Fifth, Dominick's Defendants contend that Plaintiffs' allegations of intentional infliction of emotional distress are insufficient. Finally, Dominick's Defendants note that Plaintiffs have not alleged that Mike Sullivan committed any tortious acts or engaged in any of the alleged "take down" or "pencil box" maneuvers.
In their two written responses to the Dominick's Defendants' motion to dismiss, Plaintiffs have not directly addressed any of those arguments. To the extent they have asserted additional facts in those responses, the Dominick's Defendants are correct that such additional facts should be disregarded. The court has ...