The opinion of the court was delivered by: Reagan, District Judge
A. Procedural Background and Overview of Pending Motion
In December 2004, Wayne County Sheriff's Deputy Mark Tipps arrested Dennis Boyd on narcotics charges. In October 2006, Boyd filed a three-count complaint in this District Court against Tipps and two other officers -- Wayne County Sheriff Sonny McCulley and Sheriff's Deputy Dave Zola. Boyd amended his complaint in March 2007.
The amended complaint alleges that Tipps used excessive force during the arrest, including firing his weapon near Boyd's head while Boyd lay on the ground compliant and nonconfrontational. Boyd claims that Tipps' acts constituted cruel and unusual punishment (Count 1) and that Tipps conspired to cover up his use of excessive force by making false statements in the police report on the incident (Count 2). Boyd alleges that McCulley (Count 3) and Zola (Count 4) violated Boyd's due process rights by conspiring with Tipps to falsify and submit the police report (which omitted any reference to the gun being fired near/at Boyd).
Boyd prays for a declaration that Defendants violated his rights under the Fourth and Fourteenth Amendments to the Constitution plus damages of $1,000,000 for pain and suffering resulting from the constitutional violations.
On April 2, 2007, McCulley moved to dismiss Count 3 of the amended complaint (the conspiracy claim against McCulley). Three days later, Defendants Tipps and Zola moved for dismissal of Counts 2 and 4 (the conspiracy claims against them). Granting the motions would leave only Count 1, the excessive force claim against Tipps.
All three Defendants contend that they are entitled to qualified immunity on the due process/conspiracy claims, because (1) the alleged acts occurred with the scope of their official duties and (2) at the time in question, the law was not clearly established that those acts were unconstitutional.*fn1 Plaintiff Boyd responded on May 9, 2007 (Docs. 35, 36), and Defendants replied on May 18, 2007 (Doc. 37). The Court now rules on these fully-briefed dismissal motions.
Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6). In assessing a Rule 12(b)(6) motion, the Court must take as true all factual allegations and construe in plaintiff's favor all reasonable inferences. Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642, 656 (7th Cir. 2006); Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002).
A complaint should be dismissed under Rule 12(b)(6) only "if there is no set of facts, even hypothesized, that could entitle a plaintiff to relief." Massey, 464 F.3d at 656. Stated another way: After construing the complaint in the light most favorable to the plaintiff, dismissal is proper "only if it 'appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" McCready v. eBay, Inc., 453 F.3d 882, 887 (7th Cir. 2006), quoting Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
The Seventh Circuit has emphasized that "a party need not plead much to survive a motion to dismiss" -- not specific facts, not legal theories, and not anything in anticipation of a possible defense. Massey at 650, citing Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901-02 (7th Cir. 2004). The gist of this Court's inquiry is "whether the complaint gives the defendant fair notice of what the suit is about and the grounds on which it rests." Mosely v. Board of Educ. of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)(complaints need not allege facts, they need only present a claim for relief).
As the undersigned Judge noted in a prior Order on a dismissal motion herein, a § 1983 claim requires the plaintiff to allege that a state actor deprived him of a federally-secured right. Mosely, 434 F.3d at 533. See also Gomez v. Toledo, 446 U.S. 635, 640 (1980)("... two-and only two-allegations are required in order to state a cause of action under [§ 1983]. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law."). Accord Baker v. McCollan, 443 U.S. 137, 140 (1979)(Section 1983 requires that the defendant's actions, or inaction, deprived the plaintiff of a right secured by federal laws or the federal constitution.).
Defendants do not dispute that they are state actors. Nor has Boyd failed to allege the essential elements of a cognizable § 1983 claim. The Fourth Amendment is the appropriate basis for a claim of unreasonable seizure and excessive force during arrest. See, e.g., Lopez v. City of Chicago, 464 F.3d 711 (7th Cir. 2006).
Additionally, Seventh Circuit law recognizes § 1983 claims based on conspiracy to deprive a person of federal constitutional rights. See, e.g., Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003); Jones v. Brennan, 465 F.3d 304 (7th Cir. 2006); Loubser v. Thacker, 440 F.3d 439 (7th Cir. 2006); Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). Just this month, the Seventh Circuit reiterated that to establish § 1983 liability via a conspiracy theory, a plaintiff must demonstrate that a state official and another individual "reached an understanding to deprive the plaintiff of his constitutional rights," and the two individuals "were willful ...