The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Alonzo Fells ("Plaintiff") brings this action against the County of DuPage ("Defendant" or "County") claiming racial profiling, discrimination and misconduct in the DuPage County Sheriff's Office ("Sheriff" or "Sheriff's Office"). Plaintiff's claim stems from his April 30, 2003 arrest by DuPage County Deputy Sheriff J. Godfrey. Deputy Godfrey pulled over Plaintiff for a traffic violation and then arrested him for an outstanding warrant and for driving on a revoked/suspended driver's license. Plaintiff alleges that the only law he broke was "driving while black" in a mostly white area.
Defendant now moves to dismiss Plaintiff's Amended Complaint on the lone ground that the County cannot be held vicariously liable for the actions of a DuPage County deputy sheriff. Plaintiff filed no response. Because the Illinois Tort Immunity Act directs the County to pay any judgment or settlement for which it or an employee is liable, its Motion to Dismiss is denied. The Court, however, dismisses Plaintiff's Amended Complaint because there are no grounds for federal jurisdiction under the facts alleged. Also, it appears almost certain that Plaintiff's claim is barred by the applicable statute of limitations.
When considering a motion pursuant to Rule 12(b)(6), a court must take as true all facts alleged in the complaint, and construe all reasonable inferences in favor of the plaintiff. Murphy v. Walker, 51 F. 3d 714, 717 (7th Cir. 1995). A Rule 12(b)(6) motion will not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). These liberal standards apply with particular force when considering dismissal of a pro se litigant's complaint. See Castro v. U.S., 540 U.S. 375, 386 (2003) ("'Liberal construction' of pro se pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal Rules of Civil Procedure").
Plaintiff does not identify under what law he seeks relief, but a complaint need not identify a legal theory as long as "relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). And although Plaintiff did not file a response to the Motion to Dismiss, his Amended Complaint contains a short and plain statement of the facts underlying his claim. See Curtis v. Bembenek, 48 F.3d 281, 287 (7th Cir. 1995) ("A pro se plaintiff who has alleged well-pled facts supporting a claim for relief can withstand dismissal without responding to a motion to dismiss"). It is therefore Defendant's burden in its Motion to Dismiss to demonstrate why those allegations cannot support a claim for relief. See Yeksigian v. Nappi, 900 F.2d 101, 104-105 (7th Cir. 1990) ("The defendants have the burden on a motion to dismiss to establish the legal insufficiency of the complaint").
Broadly speaking, Plaintiff's claim regarding racial profiling, discrimination and misconduct in the DuPage County Sheriff's Office could be brought under federal law or state law. Assuming that his allegations state a claim, Plaintiff must demonstrate that this Court has jurisdiction over the claim. Finally, Plaintiff must have asserted the claim within the statute of limitations period.
Section 1983 is the federal statute that provides an action against a person who, under color of law, deprives a citizen of any "right, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Section 1983 requires that Plaintiff allege an injury resulting from Defendant's policy. See McMillian v. Monroe County, Ala., 520 U.S. 781, 783 (1997) ("A county is liable under § 1983 for those actions of its sheriff that constitute county 'policy'"), citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978). A plaintiff proves a policy by demonstrating either: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) the act of a person with final policymaking authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). While the title of his Amended Complaint -- racial profiling, discrimination and misconduct in the DuPage County Sheriff's Office -- sounds like a policy claim, Plaintiff's allegations deal exclusively with the events surrounding his own arrest. Accordingly, neither Plaintiff's allegations, nor the reasonable inferences therefrom, indicate that Deputy Godfrey's actions were the result of a County policy and Plaintiff states no claim under federal law. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993) (traditional pleading standards apply to Monell claim).
Defendant assumes that Plaintiff's claim is brought under state law. And, as such, Defendant argues that it cannot be vicariously liable under the state law doctrine of respondeat superior for the acts of a sheriff's deputy. Defendant is correct, a county is not liable under respondeat superior for the acts of its sheriff's office because the sheriff is an independently elected county officer rather than an employee of the county. Moy v. County of Cook, 640 N.E.2d 926, 929 (Ill. 1994); see Franklin v. Zurba, 150 F.3d 682, 685-86 n.4 (7th Cir. 1998) (stating that a county has no respondeat superior liability for the actions of the sheriff's office). But there is more than one way to skin a cat. In relevant part, the Illinois Tort Immunity Act states:
A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages (and may pay any associated attorney's fees and costs) for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article. 745 ILCS 10/9-102. The legislative purpose behind the Tort Immunity Act is to subject local governmental units to liability on the same basis as private tortfeasors, except where the Act or another statute specifically provides immunity. In re Consolidated Objections to Tax Levies of School District No. 205, 739 N.E.2d 508, 515 (Ill. 2000). The County is a local public entity for purposes of the Tort Immunity Act. 745 ILCS 10/1-206.
When a plaintiff bases his claim on the tortious conduct of a county deputy sheriff, he must follow a winding course to the county treasury. First, he must prove that the deputy's conduct violated the law. Second, he must establish that the county sheriff is liable under the doctrine of respondeat superior or § 9-102 because the deputy's conduct was committed within the scope of employment. Last, and this final step is automatic, the county is ...