The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Pursuant to Rule 12(b)(6), paramedics Sean Finn, Caruso Locket, David Navarro, and David Jamison seek to dismiss the counts against them (Counts IV, V, VIII, IX, and X) in the fifth amended complaint. For the reasons set forth below, their motion is granted in part and denied in part.
Despite multiple amendments, the basic factual allegations in this case have remained consistent. The following facts are taken from the fifth amended complaint and are deemed to be true for the purposes of the motion to dismiss. On July 14, 2005, after experiencing chest pains, plaintiff Robert Cole called 911. An ambulance arrived and transported Cole to Roseland Hospital.
Upon Cole's arrival, Chicago Fire Department paramedic Demond Ward (who subsequently passed away on March 11, 2007) allegedly pulled Cole from the ambulance and slammed him to the ground. Ward next forced Cole into the emergency room and verbally threatened him, and then dragged him back outside, where he battered and assaulted Cole. Other uniformed Chicago Fire Department paramedics present at the scene failed to intervene to stop the attack on Cole. Following the beating, Cole called the police to report the incident and the paramedics agreed amongst themselves to lie about what had happened. Police officers arriving on the scene arrested Cole for aggravated battery.
The court previously dismissed Cole's § 1983 failure to intervene claims against the paramedic defendants raised in a prior version of the complaint without prejudice, holding that the paramedic defendants did not act under color of state law based on their status as state actors. The fifth amended complaint's allegations regarding the paramedic defendants are subtly different from the allegations in the prior versions of the complaint. Count IV (§1983 failure to intervene claim) adds an allegation that the paramedics' failure to intervene was in contravention of their "official duties" as Chicago Fire Department employees and in violation of the "Code of Conduct" of the Chicago Fire Department. Fifth Amended Complaint at ¶¶ 73 and 74. In Count V of the fifth amended complaint, Cole alleges that the defendant paramedics are liable under state law because they acted willfully and wantonly when they failed to intervene and filed false official reports. See id. at ¶¶ 88 and 89. Other differences between the current complaint and the complaint before the court when it considered the last round of motions to dismiss are that Cole dropped his §1983 claim against the paramedics for denial of medical attention and added claims for violation of due process (Count VIII) and §1983 conspiracy (Count IX).
To recap, the current iteration of the complaint contains thirteen counts, and the following counts seek relief against the defendant paramedics and are the subject of the motion to dismiss presently before the court: Count IV (§ 1983 failure to intervene against defendant paramedics), Count V (willful and wanton conduct against defendant paramedics), Count VIII (§ 1983 due process against defendant paramedics and others), Count IX (§ 1983 conspiracy against defendant paramedics and others), and Count X (intentional infliction of emotional distress against Ward and the defendant paramedics).
In ruling on a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992). To state a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). According to the Seventh Circuit, this language imposes two hurdles. First, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." E.E.O.C. v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1964 (2007). Second, the factual allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." Id. Meanwhile, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. See Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992).
2. Cole's Claims Against the Paramedic Defendants
1. § 1983 -- Count IV (failure to intervene), Count VIII (due process), & Count IX (conspiracy)
The City begins by arguing that all of Cole's § 1983 claims against the paramedic defendants fail because the paramedic defendants were not acting under color of state law when they decided not to come to Cole's aid. The court has already noted that "[n]ot every action by a state official or employee is to be deemed as occurring 'under color' of state law." Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989); see also Gibson v. City of Chicago, 910 F.2d 1510, 1516-17 (7th Cir. 1990) (collecting cases holding that "a mere assertion that one is a state officer does not necessarily mean that one acts under color of state law"). Instead, an action is taken under color of state law when it "involves a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . . As a result, acts by a state ...