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Thompson v. Williams

June 22, 2009

KIRK D. THOMPSON, PLAINTIFF,
v.
JOHN WILLIAMS ET AL., DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Before the court are plaintiff's motion to file an amended complaint and defendants' motion to dismiss. For the reasons explained below we (i) grant plaintiff's motion and (ii) grant defendants' motion in part and deny it in part.

BACKGROUND

Plaintiff Kirk Thompson, proceeding pro se, seeks damages under federal and state law stemming from his arrest on November 10, 2006. He alleges that he was "minding his own business" on a street corner when defendant officers John Williams and Chad Evans seized him by the arm, dragged him to their squad car, and searched him. (Am. Compl. ¶¶ 14-15.) Thompson alleges that Williams "punched" him in the back when he refused to tell Williams what he held in his hands. (Id. at ¶ 16.) Thompson then "wrestled" himself away from Williams' control and fled on foot to a nearby car port where the officers caught up with him. (Id. at ¶¶ 18-19.)

Thompson alleges that they then beat him. (Id. at ¶ 19.) Thompson was charged with aggravated battery, predicated on his having pushed Williams, and resisting a peace officer. (Id. at ¶¶ 30 and 35.) In exchange for the prosecutor's agreement to dismiss the aggravated-battery charge, Thompson pled guilty to resisting a peace officer (a misdemeanor) and was sentenced to time served. (Id. at ¶¶ 40, 43-45.)

Thompson moved to amend his complaint shortly after the defendants moved to dismiss his original complaint. At a hearing on February 11, 2009, we denied defendants' motion as to Count I, which alleges that Williams and Evans used excessive force in connection with Thompson's arrest. We asked Thompson to respond to the defendants' motion as to Counts II (§ 1983 claim for unlawful search and seizure), IV (malicious prosecution) and V (intentional infliction of emotional distress) of the original complaint. With respect to his state-law claims, we specifically invited Thompson to address the defendants' argument that those claims are time-barred. We did not ask Thompson to respond to defendants' motion as to Counts II (equal protection) and VI (Monell liability) in light of his pending motion to file a superceding complaint. Nevertheless, he has responded to the defendants' arguments as to those claims. (See Pl.'s Resp. at 12-14.)

DISCUSSION

A. Legal Standard

The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). However, the "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed. 2d 929 (2007)). Our Court of Appeals has cautioned courts and litigants against "overread[ing]" Bell Atlantic, see Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797, 803 (7th Cir. 2008), and the Supreme Court has since dispelled the notion that it had abandoned notice pleading. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed. 2d 1081 (2007). So, "heightened fact pleading of specifics" is still not required. Killingsworth v. HSBC Bank Nevada, 507 F.3d 614, 618 (7th Cir. 2007) (citation and internal quotation marks omitted). Nevertheless, the complaint must "contain enough facts to state a claim to relief that is plausible on its face." Id.

B. Thompson's Motion to File an Amended Complaint

Thompson is entitled to amend his complaint once as a matter of course before being served with a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Defendants have not answered the complaint, and their motion to dismiss is not a responsive pleading for Rule 15(a)(1)'s purposes. See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). Plaintiff's motion to file his Verified First Amended Complaint is granted. Although defendants' motion addresses the allegations in Thompson's original complaint, the parties have briefed the dispositive issues with respect to Counts II, VII, VIII and IX of the amended complaint. We address those issues below.*fn1

C. Thompson's State-Law Claims for Malicious Prosecution and Intentional Infliction of Emotional Distress

Illinois's Tort Immunity Act imposes a one-year statute of limitation on state-law claims against local entities and their employees. See 745 ILCS 10/8-101. Thompson does not dispute that the Tort Immunity Act applies to the City and its employees, Williams and Evans. Under the Act, the limitations period begins to run when the plaintiff's injury occurs or his cause of action accrues. Id. A claim for malicious prosecution accrues when the proceedings against the plaintiff terminate in his or her favor.

Treece v. Village of Naperville, 903 F.Supp. 1251, 1257 (N.D. Ill. 1995). "Emotional distress claims accrue on the date that the defendant committed the act that allegedly caused the plaintiff's distress." Turner v. McQuarter, 79 F.Supp.2d 911, 918 (N.D. Ill. 1999). Accordingly, Thompson's claims accrued, at the latest, on April 23, 2007 when his prosecution terminated. (Am. Compl. ¶ 44.) Thompson did not file his complaint in this action until approximately 17 months later. Although Thompson's response to defendants' motion to dismiss is otherwise competently researched and written, he does not argue (or even attempt to argue) that § 8-101 does not apply to bar his state-law claims. See Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993) ("While the courts liberally construe pro se pleadings as a matter of course, judges are not also required to construct a party's ...


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