The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Before the Court are the Motion to Dismiss Counts II, III, IV, and V filed by Defendants City of Pontiac and Michael Willis [Doc. 21], the Motion to Strike and Dismiss Amended Complaint (Counts II -- V) filed by Defendants Michael Nolan, Glenn Peters, and the Village of Dwight [Doc. 23], the First Motion to Dismiss Counts II and III and the Motion to Strike the Requests for Punitive Damages under Counts IV and V filed by Defendant Samuel Fitzpatrick [Doc. 28], and the Second Motion to Dismiss Count III and the Motion to Strike the Requests for Punitive Damages under Counts IV and V filed by Defendant Fitzpatrick [Doc. 46].
For the reasons set forth below, the City of Pontiac's and Willis' Motion to Dismiss [Doc. 21] is GRANTED IN PART and DENIED IN PART, the Village of Dwight's, Nolan's, and Peters' Motion to Dismiss [Doc.23] is GRANTED IN PART and DENIED IN PART, Fitzpatrick's First Motion to Dismiss and Strike [Doc. 28] is MOOT and Fitzpatrick's Second Motion to Dismiss and Strike [Doc. 46] is GRANTED.
The following facts are taken from the Amended Complaint [Doc. 7].
Each of the named Defendants are police officers and are being sued in their individual capacity. On March 26, 2008, Defendants obtained a search warrant for apartment 10 at 140 East Mazon Avenue in Dwight, Illinois. The Defendants, however, executed the warrant on apartment 1 of the same apartment complex. Plaintiff, who resides in apartment 1, alleges that the officers forcibly entered her apartment, without knocking, and used excessive force in her arrest. In Count I, Plaintiff alleges unlawful entry, in Count II, she alleges an unreasonable seizure and the use of excessive force, and in Count III, she alleges a failure to protect claim, all in violation of the Fourth Amendment. Counts I through III are against the individual Defendants only. Plaintiff further alleges state law claims of assault (Count IV) and battery (Count V). In the last two Counts, Plaintiff seeks damages from the individual Defendants, the Village of Dwight, the City of Pontiac, and the Livingston County Sheriff. Plaintiff further seeks punitive damages from the individually named Defendants.
The Village of Dwight, the City of Pontiac, the City of Fairbury, Livingston County and the Livingston County Sheriff are being sued as "necessary parties" to the Constitutional claims. The Village of Dwight, the City of Pontiac and the Livingston County Sheriff are also being sued under a theory of respondeat superior for the state law claims of assault and battery.
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must view a complaint in a light most favorable to the plaintiff. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). The Court must accept all well-pleaded factual allegations and draw all reasonable inferences from those facts in favor of the plaintiff. Richards v. Kiernan, 461 F.3d 880, 882 (7th Cir. 2006). A plaintiff is not required to plead extensive facts, legal theories, or to anticipate defenses. Massey v. Merrill Lynch and Co., Inc., 464 F.3d 642, 650 (7th Cir. 2006). However, a plaintiff must "provide the grounds of his entitlement to relief" that are "more than labels and conclusion  [or] a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007) (citations and editing marks omitted). In particular, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965.
Defendants seek dismissal of Counts II, III, IV and V, dismissal of the City of Pontiac, the Village of Dwight, and the City of Fairbury, and striking of the punitive damages requests in Counts IV and V. In response, Plaintiff generally avers that the City of Pontiac, the Village Dwight, and the City of Fairbury are not proper parties with respect to Counts I and II, and that Count III should be dismissed for failure to state a claim.
As indicated above, in Count II, Plaintiff alleges that the individual Defendants deprived her of the "right to be free from illegal seizure and excessive force . . . ." Defendants Willis and City of Pontiac*fn1 argue that Count II is duplicative of Count I, wherein Plaintiff alleges unlawful search and seizure, and that Count II improperly "commingle[s] various theories and individuals in a single count." The case authority cited by these Defendants do not support their arguments and are not controlling authority. Bainerd v. Potratz, 421 F.Supp. 836 (D.C. Ill. 1976), involved an argumentative and confusing complaint that failed to state a claim and that made a responsive pleading impossible. There is no argument here that Plaintiff's complaint is either confusing or argumentative; nor is there any showing that Count II fails to state a claim. The cited section of In re Livent, Inc. Noteholders Securities Litigation, 151 F.Supp.2d 371 (S.D.N.Y. 2001), involves inconsistent pleadings of facts -- there is no argument here that Plaintiff is alleging inconsistent facts. Id. at 407. As such, Defendants have cited no case authority that mandates the dismissal of Count II. Defendants remaining argument, that the Count alleges broad claims against all Defendants also is without merit. These Defendants assert that they were not involved in Plaintiff's arrest. This argument, however, interposes facts that cannot be considered on a motion to dismiss. Such arguments should be made in a motion for summary judgment.
As the Court reads Count I, Plaintiff alleges that Defendants violated the Fourth Amendment by entering her apartment without a warrant or other justification. Count II alleges that Defendants unreasonably seized her and used excessive force in the seizure. The Counts are not duplicative.
Moreover, Rule 10 (cited by Defendants Nolan, Peters and Village of Dwight in their memorandum) provides only that "[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Defendants do not elaborate how, by coupling excessive force with unreasonable seizure, Plaintiff is in violation of Rule 10. A claim under the Fourth Amendment is made out by allegations that officers both seized Plaintiff and used objectively unreasonable (excessive) force. See Graham v. Connor, 490 U.S. 386, 395-396 (1989); Marion v. City of Corydon, Indiana, 559 F.3d 700, 705 (7th Cir. 2009) ("We use the Fourth Amendment, which prohibits unreasonable seizures, ...