The opinion of the court was delivered by: Marvin E. Aspen, District Court Judge
MEMORANDUM OPINION AND ORDER
Defendant Sgt. James Neylon moves to dismiss Counts III, IV, V, and VI of plaintiff Justin Jackson's complaint against Neylon, a collection of "unknown officers," the State of Illinois, and the City of Aurora. For the reasons stated below, we grant in part and deny in part this motion.
According to the Complaint, on April 29, 2005, Neylon, an Illinois State Police officer, grabbed Jackson and "threw him onto the ground, unprovoked." (Compl. ¶ 4.) The unidentified officers accompanying Neylon that evening allegedly failed to intervene. (Id. at ¶ 6.) Jackson alleges that he did not obstruct justice, resist arrest, or otherwise assault Neylon or the unidentified officers with Neylon, that Neylon's actions "caused an excessive amount of force" to be inflicted upon Jackson, and that the incident constituted an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution. (Id. at ¶¶ 4-6.) Jackson states that the episode caused him "serious personal injury in the form of internal derrangement in [his] left knee, emotional and physical pain, and suffering and mental anguish (depression) at the time of the incident, since the incident, and presently." (Id. at ¶ 8.)
Further, the Complaint alleges, the officers conspired to injure Jackson by: a) "agreeing not to report each other;" b) "collectively abusing and/or failing to intervene in the beating;" and c) "generating false documentation and/or failing to truthfully document the incident in order to cover-up their own misconduct." (Id. at ¶ 10.) This conspiracy between the offers allegedly "deprived [Jackson] of his potential claims for battery and/or excessive force," and led to the "generation of false documentation and/or lack of documentation." (Id. at ¶¶ 11-13.) In sum, the alleged conspiracy "violat[ed] the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." (Id. at ¶ 13.)
Jackson alleges that the officers were on duty at the time of all alleged conduct and that they "were acting under color of state law, ordinance and/or regulation, statutes, custom, and usages of the State of Illinois." (Id. at ¶¶ 9 & 14.) Jackson is suing the officers in their individual capacity. (Id. at ¶ 9.)
Neylon now moves to dismiss four counts of the Complaint: Count III, under 745 ILCS 10/9-102, for judgment against the State of Illinois; Count IV, a "supplementary claim for respondeat superior judgment against the City of Aurora; Count V, a § 1983 conspiracy claim against the officers; and Count VI, a state law conspiracy claim against the officers. We grant the motion with respect to Counts III and IV. We deny the remainder of the motion.
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the "power to decide," and must be conferred upon the federal courts. In re Chicago, Rock Island & Pacific R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of proving that the jurisdictional requirements have been met. See Kontos v. U.S. Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987).
A court may grant a motion to dismiss under Rule 12(b)(6) when "it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The purpose of a motion to dismiss under either Rule 12(b)(1) or 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Unless the claims are of the type specifically addressed by Fed. R. Civ. P. 9(b), a complaint "need not plead facts and need not narrate events that correspond to each aspect of the applicable legal rule." Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006).
a. Eleventh Amendment Applicability to Claims Against the State of Illinois
Neylon argues that the Eleventh Amendment strips us of jurisdiction to decide Jackson's claims for damages under both federal and state law against the State of Illinois and moves to dismiss Counts III and IV on these grounds. (Mem. in Supp. of Mot. to Dismiss at 3.)
Jackson brings Counts III and IV for recovery against the State of Illinois and the City of Aurora.(See Compl. ¶¶ 22-26.) However, Jackson did not name either entity as a party, nor did he serve a summons upon either party as required by Federal Rule of Civil Procedure 4. Since Neylon and the unnamed officers were sued only in their individual capacity, this suit is not automatically one against the State of Illinois or the City of Aurora. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). We have no jurisdiction to enter judgment against entities that have not been served and have not even been named as parties to this suit. See Chute v. City of Cambridge, 201 F.R.D. 27 (D. Mass. ...