The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
Plaintiff, Zdenek Svoboda, filed a four-count complaint in which he named two defendants, (1) the Metropolitan Water Reclamation District of Greater Chicago ("MWRD") and (2) Barbara Osowski, as the administrator of the estate of Richard Osowski ("Osowski"). Counts I and II allege claims against Osowski under 42 U.S.C. § 1983 for use of excessive force in violation of plaintiff's constitutional rights. Count III is a supplemental state law claim against Osowski for malicious prosecution. Count IV is an additional state law claim alleging that the MWRD is liable under the doctrine of respondeat superior for the state law claim against Osowski.
Before the court is defendant MWRD's motion to dismiss Count IV pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, MWRD's motion [#21] will be granted.
A motion to dismiss under Rule 12(b)(6) challenges the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences from those facts in favor of the plaintiff. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a motion under Rule 12(b)(6), the complaint must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed. 2d 929 (2007)). The allegations in the complaint must also be "enough to raise a right to relief above a speculative level." Twombly, 127 S.Ct. at 1965.
Svoboda alleges the following facts. On October 25, 2002 at about 10:00 p.m., Svoboda and Pavel Belocky ("Belocky") were dropped off near their house, which is located in the 4100 block of N. McVicker in Chicago. At that time Osowski, an MWRD police officer, lived in the 4000 block of N. McVicker. As Svoboda and Belocky got out of their friend's car, Belocky put a white Styrofoam container on the grass. From across the street, Osowski began swearing at Svoboda and Belocky about the litter that Belocky had put on the ground.
Belocky then picked up the Styrofoam container, and he and Svoboda approached Osowski. Osowski told Svoboda and Belocky that he was a police officer. To prove that he was an officer, Osowski showed Svoboda and Belocky his badge, which was clipped to his belt. A physical confrontation ensued, during which Osowski pepper-sprayed both Svoboda and Belocky. When Svoboda and Belocky attempted to take the pepper-spray away from Osowski, Osowski pulled out his gun and shot at Svoboda. The bullet hit Svoboda in the abdomen and exited through his back.
Svoboda was later transported by ambulance to Lutheran General Hospital, where he underwent surgery to stop internal bleeding caused by the gunshot wound. Following his release from the hospital on October 26, 2002, Svoboda was placed under arrest by the Chicago Police Department and charged with aggravated battery to a police officer. Osowski had instituted felony charges against Svoboda and Belocky for felony aggravated battery to a police officer based on the above-described incident.
The aggravated battery charge was brought in Cook County Circuit Court by the Cook County State's Attorney's Office under case No. 02 CR 28389, People of the State of Illinois v. Zdenek Svoboda and Pavel Belocky. Svoboda and Belocky appeared in court numerous times on the aggravated battery charge. On December 12, 2003, after a bench trial, both Svoboda and Belocky were found not guilty of aggravated battery.
As a result of the incidents described above, Svoboda claims to have suffered from, among other things, pain and suffering arising from the gunshot wound to his abdomen, loss of wages and benefits, future pecuniary losses, and emotional distress.
I. Statute of Limitations Under the Illinois Tort Immunity Act
MWRD argues that the respondeat superior claim brought against it is time-barred by the statute of limitations under the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Illinois Tort Immunity Act"), 745 Ill. ...