The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendant's motion to dismiss plaintiff's complaint (Doc. 42) to which the plaintiffs have filed a response (Doc. 55). This case arose out of a March 2004 incident where the plaintiff, Rosalind Harper, called the Cahokia Police Department at approximately 3:00 A.M. believing that a burglar was casing her residence. Although some of the facts of the case are in dispute, the following salient facts are not.
The Cahokia police responded to Harper's emergency call and a man loitering across the street was arrested. At approximately the same time Harper's boyfriend's brother, Henry Davis (whom she had also called), arrived at the residence. He was traveling at a high rate of speed, and was being followed by Officer Bailey of the Chaokia Police Department. Other officers, including back up officers from the Village of Sauget arrived on the scene and Davis was, himself, arrested once he arrived in Harper's driveway. During the commotion and the arrests, Harper and her children, the other named plaintiffs in the complaint, came out onto the front porch of the house. One of the plaintiffs, Krystal Davis, somehow became involved in an altercation with the police, was arrested for and subsequently convicted of resisting arrest and obstruction of justice.*fn1 Defendants the Village of Cahokia, Eric Bailey, Larry Flynn, Teresa Nichols and Richard Watson seek dismissal of plaintiffs' complaint on the grounds that under Heck v. Humphrey, 512 U.S. 477 (1994) plaintiffs cannot maintain their cause of action against these defendants. The Village of Sauget defendants are not part of this motion to dismiss.
This case is in a somewhat unusual procedural posture. There were originally two complaints filed with two sets of defendants from the same incident. The first complaint was filed pro se in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois and was removed to this Court, Harper v. Village of Sauget, No. 05-397-WDS (the "Sauget" complaint). Plaintiffs then retained counsel who filed an amended complaint against the Village of Sauget, Jeff Donahey, and Patrick Delaney for alleged violations of plaintiffs' civil rights relating to the March, 2004 incidents. The second complaint Harper v. Village of Cahokia, No. 06-197-WDS (the "Cahokia" complaint) was filed separately against the Cahokia defendants (the movants in this motion) and sought damages relating to the same incident in March of 2004. The Cahokia defendants are the Village of Cahokia, Richard Watson, Eric Bailey, Larry Flinn, Patrolman Teresa Nichols and John Doe #1. The Court consolidate the separate actions in May of 2006. Despite this consolidation, the plaintiffs have not filed one unified complaint setting forth their claims against all defendants.
The pending motion to dismiss is addressed to only the plaintiffs' claims against the defendants in the Cahokia complaint (formerly No. 06-197-WDS). The complaint is framed in seven counts. Count I of the Cahokia complaint alleges excessive use of force by defendant Bailey against plaintiffs Harper, Krystal Davis and Katrina Davis. Count II alleges a failure by defendants Bailey, Flinn, Nichols and John Doe #1 to intervene and prevent use of excessive force against plaintiffs Harper and Krystal Davis by the Sauget Police officer and also failure by defendants (presumably not including defendant Bailey) to intervene and to prevent the use of excessive force against plaintiffs Harper and Krystal Davis and Katrina Davis by defendant Bailey.
Count III, brought on behalf of all plaintiffs, alleges that the defendants unlawfully arrested and prosecuted Rosalind Harper and Krystal Davis in violation of their Fourth Amendment rights. Count IV asserts claims based on failure to instruct, supervise, control and discipline by Chief Watson, as policymaker for the Cahokia police department, and the Village of Cahokia. Count V seeks recovery against defendant Bailey for intentional infliction of emotional distress; Count VI is based on claims of assault and battery against defendant Bailey and Count VII alleges common law negligence against defendants Bailey, Flinn, John Doe #1 and Nichols.
The defendants seek to dismiss all claims raised in each of the eight counts. The Court will discuss each count in turn. A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, as well as construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). To be cognizable, the factual allegations contained within a complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). However, a pleading need only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999).
1. Count I: Excessive Use of Force
In Count I, plaintiffs allege that Officer Bailey used excessive force against them in connection with his arrest of Henry Davis. The defendants seek to dismiss this claim on the grounds that there are no allegations that Officer Bailey used any force against Harper, or any plaintiff other than Katrina Davis and Krystal Davis. A careful review of the complaint supports the defendants' position, with respect to plaintiffs Katrice Davis, Kayanna Davis, Karis Davis and Isaiah Davis. Although the complaint seeks damages for excessive use of force, the only allegations are that plaintiffs Katrina Davis and Krystal Davis were somehow exposed to a use of force by Bailey, and that plaintiff Roslind Harper was Tasered by a Sauget police officer. There are no allegations that any of the Cahokia defendants used excessive force against plaintiff Roslind Harper. Therefore, the Court GRANTS defendants' motion to dismiss Count I as it relates to plaintiffs Rosalind Harper, Katrice Davis, Kayanna Davis, Karis Davis and Isaiah Davis.
The defendants seeks to dismiss the remaining plaintiffs' claims as barred by the doctrine in Heck, 512 U.S. 484. The Seventh Circuit has recognized that "The broad rule of Heck is that a plaintiff convicted of a crime in state court cannot bring a §1983 claim which, if successful, would imply that his conviction was invalid, unless and until the conviction has been reversed on appeal or otherwise invalidated." Reynolds v. Jamison, 488 F.3d 756, 766-67 (7th Cir. 2007). This Court must "analyze the relationship between the plaintiff's § 1983 claim and the charge on which [the plaintiff] was convicted." Vangilder v. Baker, 435 F.3d 689, 691 (7th Cir. 2006). "[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." 512 U.S. at 487. The Seventh Circuit has held that "[a] plaintiff need not prove that any conviction stemming from an incident with the police has been invalidated, only a conviction that could not be reconciled with the claims of his civil action." 435 F.3d at 692. In Vangilder the plaintiff had been charged with felony battery on a police officer, but pleaded guilty to resisting a law enforcement officer, a misdemeanor. Here, the record reveals, and the parties do not dispute, that plaintiff Krystal Davis was convicted in St. Clair County, Illinois Court of obstructing a peace office and resisting a peace officer. As the court in Vangilder noted, resisting a law enforcement officer is a misdemeanor under Illinois law, which does not rise to the level of a Heck bar of a claim for excessive use of force. The Court notes that obstruction of a police officer is also a Class A misdemeanor. 720 ILCS § 5/31-1(a). Therefore, under the holding in Vangilder plaintiff Krystal Davis' claim for excessive use of force is not barred under Heck.
Therefore, the Court DENIES defendants' motion to dismiss the excessive use of force claims raised by plaintiff Krystal Davis. The defendants seek to dismiss Katrina Davis' claim on the grounds that it is barred by Heck. There is nothing in the record to reveal that Katrina Davis was convicted of any offenses which would require a Heck review, therefore, ...