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Favela v. Vicari

August 27, 2010

FAVELA
v.
VICARI



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge George W. Lindberg than Assigned Judge

TITLE

DOCKET ENTRY TEXT

Defendant Vicari and Fabiani's motion to dismiss [27] is granted. Plaintiff's claims against defendants Vicari and Fabiani are dismissed, without prejudice. Plaintiff is ordered to show cause, by affidavit or otherwise, why his remaining claims against the Unknown and Unnamed Stone Park Police Officers should not be dismissed pursuant to Fed. R. Civ. P. 4(m). If plaintiff fails to show cause by noon on 9/7/10, this case will be dismissed.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Through counsel, plaintiff filed an amended complaint against defendant police officers Robert Vicari and Ron Fabiani, as well as against unknown and unnamed Stone Park police officers. The amended complaint alleges a claim under 42 U.S.C. § 1983 for excessive use of force (Count I), and a state-law claim of intentional infliction of emotional distress (Count II). Vicari and Fabiani have moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim.

In considering defendants' motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the amended complaint, and draws reasonable inferences in plaintiff's favor. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The allegations in the complaint "must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Plaintiff's amended complaint alleges, in pertinent part:

6. On November 11, 2008, Plaintiff was located at or near 1536 North Mannheim Road in Stone Park, Illinois.

7. At that time and place Vicari, Fabiani and Unknown Officers approached the Plaintiff.

8. Plaintiff was forcibly restrained and arrested by Vicari, Fabiani and Unknown Officers.

9. Plaintiff was subjected to unnecessary and unreasonable force.

10. Plaintiff in no way consented to this.

11. Plaintiff was driven to the police station where he was imprisoned, and again Plaintiff was subjected to unnecessary and unreasonable force resulting in injuries that ...


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