The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on defendants Village of Lombard and Joseph Metallo's motions to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the motion to dismiss is granted for all Counts.
The following allegations are taken from plaintiff Jane Doe's First Amended Complaint. Plaintiff was assaulted by Guiseppe Metallo on December 21, 2005, and she reported the sexual assault to the Lombard Police Department on December 23, 2005. At the time, Joseph Metallo, Guiseppe Metallo's grandson, was employed as a police officer in the Lombard Police Department. On December 23, 2005, the Lombard Police Department obtained a search warrant to collect evidence, including fingernail clippings, from Guiseppe Metallo. Joseph Metallo knew of the sexual assault allegations against Guiseppe Metallo and knew that fingernail clippings from his grandfather should be preserved for the criminal investigation. Further, the defendant-officer had a duty to preserve the evidence, but knowingly directed or permitted Guiseppe Metallo to destroy the fingernail clippings. The Village of Lombard also had a duty to preserve evidence and had a policy in effect allowing its police officers to provide advice to criminal suspects who were family members, but failed to train Joseph Metallo with respect to the limits of this policy. As a result of the conduct of the Village of Lombard and Joseph Metallo, plaintiff alleges that she was deprived of a key piece of evidence necessary to prove a claim for sexual assault against Guiseppe Metallo.
Criminal proceedings were commenced by the state against Guiseppe Metallo for actions described by the plaintiff in the instant complaint. On September 4, 2007, Metallo was convicted by a court in DuPage County of sexual assault and abuse crimes.
Plaintiff has brought a five-count complaint against the defendants. Counts I (against the Village of Lombard) and II (against Joseph Metallo) allege that plaintiff was deprived of her right to due process of law, in violation of the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983 ("Section 1983"). Count III (against Joseph Metallo) is for intentional spoliation of evidence. Count IV (against Joseph Metallo) is for negligent spoliation of evidence. Count V (against the Village of Lombard) is for willful and wanton spoliation of evidence.
In reviewing a Rule 12(b)(6) motion to dismiss, the court will view all facts in the light most favorable to the plaintiff. Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999). A complaint will not be dismissed unless it is clear that the plaintiff cannot prove facts consistent with its allegations that would entitle it to relief. Id.
A. Counts I and II Fail to State a Claim for Denial of Access to the Courts
In Counts I and II, plaintiff alleges that the actions of the defendants deprived her of her right to due process of law. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .
42 U.S.C. § 1983. To state a claim under Section 1983, plaintiff must allege that (1) she held a constitutionally protected right; (2) she was deprived of this right in violation of the Constitution; (3) the defendant intentionally caused this deprivation; and (4) the defendant acted under color of law. Donald v. Polk County, 836 F.2d 376, 379 (7th Cir. 1988). Furthermore, to sufficiently allege a Section 1983 claim, plaintiff must allege and describe the underlying cause of action and identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. Christopher v. Harbury, 536 U.S. 403, 415 (2002).
In this case, plaintiff alleges that, as a result of the actions of Joseph Metallo, who was acting under color of law at the time, she was deprived of a key piece of evidence necessary to prove a claim for sexual assault against Guiseppe Metallo. Therefore, according to the plaintiff, she was deprived of her right to due process of law. However, she does not identify any remedy that may be awarded as recompense in a Section 1983 suit that may not be awarded in another suit, nor does her complaint contain an allegation that she was prevented from pursuing any claims against Guiseppe Metallo.
Indeed, plaintiff currently has a civil complaint for assault, battery, and other tort claims pending against Guiseppe Metallo in state court. Plaintiff claims that the likelihood of success on her state tort claims may be impinged or that the value of any settlement may be reduced because of the loss of this evidence. However, the Seventh Circuit has held that a plaintiff is not denied access to the courts when "[s]he was personally involved in the incident and thus had firsthand knowledge of all the facts and circumstances surrounding" the alleged sexual assault. Thompson v. Boggs, 33 F.3d 847, 852 (7th Cir. 1994). The fact that her case is on file in the Circuit Court of DuPage County shows that she was not denied access to the courts and that she has sufficient information to file suit against Guiseppe ...