The opinion of the court was delivered by: Herndon, District Judge
On August 9, 2005, Plaintiff Bryan Joseph Schmittling ("Plaintiff") filed a complaint against the City of Belleville, Illinois ("Belleville") and Officers Jeffrey Vernatti ("Officer Vernatti"), Aaron Netemeyer ("Officer Netemeyer"), and Mark Heffernan ("Officer Heffernan") (collectively, "Defendants") individually and in their official capacities as Belleville police officers, alleging civil-rights violations under 42 U.S.C. § 1983. (Doc. 1.) Belleville and the officers filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on September 9, 2005; in response, Plaintiff entered a Second Amended Complaint on October 13, 2005. (Doc. 22.) Counts I through III of Plaintiff's Second Amended Complaint arise under 42 U.S.C. § 1983; Count IV states claims against Officer Vernatti and Belleville for battery; and Count V alleges intentional infliction of emotional distress against all Defendants. In their motion to dismiss, Defendants argue that Plaintiff has failed to state a claim upon which relief can be granted. (Doc. 12.) Plaintiff responds in opposition. (Doc. 20.) For the reasons set forth below, the Court denies Defendant's motion.
On December 20, 2004 Plaintiff and a passenger, Ryan Schmittling, were involved in a single-vehicle accident in St. Clair County, Illinois. (Doc. 22, Second Am. Compl., ¶ 21.) Plaintiff alleges that during the accident, his vehicle traveled down an embankment and rolled several times. (Id. at ¶ 22.) As a result of the accident, both Plaintiff and Schmittling suffered multiple injuries. (Id. at ¶ 23.)
According to Plaintiff's complaint, when his vehicle came to a resting position, he and Schmittling walked back to the road and waited for emergency assistance. (Id. at ¶ 24.) Officers Vernatti, Netemeyer, and Heffernan then arrived on the scene. (Id. at ¶ 25.) At this point, Plaintiff alleges that he requested medical assistance and gave Officer Vernatti his identification. (Id. at ¶ 26.) Vernatti then allegedly told Plaintiff that he was going to jail, and Plaintiff responded by placing his wrists together to facilitate cuffing. (Id. at ¶ 29.) Plaintiff alleges that Vernatti then called him a "smart ass" and shot him with a Taser. (Id. at ¶ 30.) While Plaintiff was suffering from the Taser shock, Vernatti allegedly ordered him to lie on the ground, but Plaintiff failed to comply due to the shock he received. (Id. at ¶ 32.) As a result, Plaintiff alleges that Vernatti shot Plaintiff with a Taser again and ordered him to place his hands behind his back. (Id. at ¶¶ 33, 35.) While face-down on the ground, Plaintiff indicates that he attempted to comply, but was unable to due to pre-existing injuries to his shoulder. (Id.) Vernatti then allegedly applied a third Taser shock to Plaintiff for resisting arrest and forced Plaintiff's hands together behind his back for cuffing. (Id. at ¶ 36--37.) Plaintiff alleges that Vernatti shocked him a fourth time in response to his request for medical assistance. (Id. at ¶ 38.)
As a result of this incident, Plaintiff claims that, among other things, he lost consciousness and control over his bodily functions, suffered traumatic injury to his head, and suffered burn injuries. (Id. at ¶¶ 30-39.) Additionally, Plaintiff alleges that Officers Heffernan and Netemeyer refused to intervene or come to Plaintiff's aid and that at no time after being taken into custody did Defendants acknowledge his requests for medical assistance. (Id. at ¶ 45.) Finally, Plaintiff alleges that Defendants conspired to hide or alter the evidence of their conduct by preparing false police reports. (Id. at ¶ 28.)
Plaintiff claims these acts constituted battery and intentional infliction of emotional distress. Plaintiff additionally alleges that Defendants' conduct violated his rights under the Fourth Amendment and 42 U.S.C. § 1983. He seeks compensatory, punitive, and exemplary damages, attorney fees and costs.
When ruling on a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a court assumes as true all well-pleaded facts and reasonable inferences, and construes these in the light most favorable to the plaintiff. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citing Wiemerslage Through Wiemerslage v. Maine Twp. High Sch. Dist. 207, 29 F.3d 1149, 1151 (7 th Cir. 1994)). A court must determine whether, based on those assumptions and inferences, the plaintiff has a right to relief. Id. A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).A claim may be dismissed only if it is beyond doubt that under no set of facts would a plaintiff's allegations entitle him or her to relief. Travel All over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429--30 (7th Cir. 1996) (citing Conley v. Gibson, 355 U.S. 41, 45--46 (1957)). "Complaints need not plead facts and need not narrate events that correspond to each aspect of the applicable legal rule" to survive a motion to dismiss. Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006).
B. Plaintiff's Second Amended Complaint
Several issues raised by Defendants Memorandum in Support of Motion to Dismiss (Doc. 13) were corrected by Plaintiff's Second Amended Complaint (Doc. 22). First, Defendants moved to dismiss Counts I--III because Plaintiff erroneously based his claims on alleged violations of Illinois constitution and statutes. (Doc 13, Part III.) Plaintiff's Second Amended Complaint, however, no longer alleges violations of state law in Counts I--III. Defendants also moved to dismiss Counts I--III because Fifth Amendment claims may only be brought against federal officials and because Plaintiff failed to state a claim under the Fourteenth Amendment. (Doc. 13, Parts IV--V.) These issues are now moot because Plaintiff no longer alleges violations of the Fifth or Fourteenth Amendments. Finally, Defendants moved to dismiss Count III due to the fact that the complaint lacks a constitutional injury. (Doc. 13, Part VIII.) Plaintiff's Second Amended Complaint cures this issue by ...