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Esang v. County of Cook

December 22, 2009

ASUQUO ESANG, PLAINTIFF,
v.
COUNTY OF COOK, AN ILLINOIS MEDICAL CORPORATION, THE SHERIFF OF COOK COUNTY, IN HIS OFFICIAL CAPACITY, COOK COUNTY SHERIFF DEPUTIES PHILLIP MARKEY #5277, ROSE JOHNSON #2932, COLEMAN #4648, BEN CARANDANG #188, WHITE #4758, AND BENEDICTO CARRADINE AND COOK COUNTY SHERIFF CORRECTIONAL OFFICERS EVANS, BURNS AND MOORE, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Asuquo Esang brought this action under 42 U.S.C. § 1983 and various state-law tort theories arising from two alleged assaults by law enforcement officers. The matter is presently before the court on Defendants'*fn1 Motion to Dismiss Plaintiff's Second Amended Complaint, in which Defendants assert that Esang's claims are time-barred and, in the case of the Sheriff of Cook County,improperly brought against him in his official capacity. For the reasons stated herein, the court grants Defendants' motion to dismiss in part, and denies the remainder of the motion without prejudice.

I. BACKGROUND

Esang's allegations arise from two incidents. Esang first alleges that on July 21, 2005, he was beaten and falsely arrested by sheriff's deputies at the Richard J. Daley Center (the "2005 incident"). He also alleges that he was beaten while in custody on January 4, 2007 (the "2007 assault").

Esang filed his original complaint pro se on June 25, 2007. In the original complaint, he alleged facts regarding the 2005 incident. See Compl. 4-5. On page 11 of his original complaint, Esang listed "Defendants," in which he included "Sheriff Tom Dart, Sheriff Sgt. Ben Caradang [sic] #188, Sheriff Deputy Coleman #4648, Sheriff Debuty Mackey [sic] #5277 . . . ." Id. 11. However, these persons were not listed in the caption of Esang's original complaint, and no service was attempted or made upon them. Esang made no mention of the 2007 assault in his original complaint.The court dismissed Esang's original complaint on July 9, 2007 for Esang's failure to name any defendants or supervisors of defendants for the 2005 incident, which the court determined was his only viable civil rights claim. See Doc. No. 6.

With the court's leave, Esang filed his Amended Complaint, again pro se, on February 5, 2008. See Amend. Compl., Doc. No. 22. Esang's Amended Complaint was 51 pages long and numbered more than 200 paragraphs, not including numerous sub-paragraphs, and named as defendants, inter alia: the County of Cook; Tom Dart, the Cook County Sheriff; Cook County Deputy Sheriffs Coleman, Markey, "Grandang [sic]," and White; and defendants Burns, Moore, and Evans. In his Amended Complaint, Esang re-alleged the 2005 incident. See id. ¶¶ 20-22, 55. He also alleged that defendants Coleman, White, "Mackey [sic]," and Carandang, and officer Jane Doe, were involved in his false arrest, which was part of the 2005 incident. See id. ¶ 55. Esang also alleged for the first time that he was beaten and shot by a taser gun by defendants Burns, Moore, and Evans as part of the 2007 assault. See id. ¶¶ 50-53.

Defendants moved for dismissal and on November 21, 2008, the court entered an order granting dismissal in part and denying in part. See Doc. No. 88.*fn2 As part of that order, the court dismissed claims against the Sheriff of Cook County in his official capacity, which it found were duplicative of claims against the county. See id. 4.

The court granted Esang leave to file a Second Amended Complaint, granted him various continuances, and granted his requests for appointment of counsel. On July 8, 2009, Esang filed his Second Amended Complaint, this time through counsel. In his Second Amended Complaint, Esang brings excessive force, state-law battery, and false arrest claims against defendants Markey, Johnson, Coleman, Carandang, White, and Carradine, arising from the 2005 incident; excessive force and state-law battery claims against defendants Evans, Burns, and Moore arising from the 2007 assault; and respondeat superior and indemnification claims arising from both incidents against the Sheriff of Cook County.

II. LEGAL STANDARD

Rule 12(b)(6) allows a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In resolving a Rule 12(b)(6) motion, the court must "construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the plaintiff's] favor." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, 556 U.S. ____, 129 S.Ct. 1937, 1940 (2009). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be sufficient to "state a claim to relief that is plausible on its face . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"A statute of limitations defense, while not normally part of a motion under Rule 12(b)(6), is appropriate where 'the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.'" Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)).

III. ANALYSIS

The court addresses dismissal of Esang's ยง 1983 claims first, then turns to ...


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