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Wilson v. Keske

October 15, 2010

STEVIE WILSON, PLAINTIFF,
v.
MARC KESKE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

AMENDED MEMORANDUM AND ORDER

Plaintiff Stevie Wilson lay on the ground, handcuffed, as an electrical pulse surged through him. He could no longer move, felt he could no longer breathe, and eventually lost consciousness. When he awoke, he was a patient at Vista Medical Center East in Waukegan, Illinois. This is Wilson's account of what happened to him on November 3, 2009, when he contends he was struck by a Taser deployed by a North Chicago police officer. Wilson has sued that officer, defendant Marc Keske, along with the city of North Chicago, unknown police officers, a security guard named Marvin Garret, as well as Taser International and unknown employees. The complaint alleges claims of excessive force and conspiracy to use excessive force under 42 U.S.C. § 1983, as well as claims of battery, intentional infliction of emotional distress, products liability, and indemnity under Illinois law.

Before the court are two motions to dismiss the claims against defendants Marc Keske, the city of North Chicago, Taser International, and its employees. For the reasons that follow, the motions to dismiss are granted in part and denied in part.

BACKGROUND

In his first amended complaint, Wilson alleges the following facts, which the court accepts as true for purposes of the motion to dismiss. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). The events of November 3, 2009, began when Wilson called 911 for help. North Chicago police officer Marc Keske and Marvin Garret, whom Wilson describes as a security guard, responded to the call. When Keske and Garret arrived at the scene, they handcuffed Wilson, pushed him to the ground, and then Keske deployed his model X26 Taser ECD weapon on Wilson. The complaint does not identify why Wilson called 911, or why Keske and Garret handcuffed him and deployed Keske's Taser, but Wilson alleges that the conduct amounted to excessive force.

Wilson further alleges that defendants Taser International and unspecified employees knew that the X26 model of the Taser weapon was unreasonably dangerous and would often cause serious injury, even death. However, according to the allegations of the complaint, Taser International and its employees told the city of North Chicago that its Tasers seldom harmed arrestees when used properly. Consequently, the city of North Chicago purchased Taser weapons for each of its patrol officers and instructed the officers that the weapons were safe to use.

In his complaint, Wilson alleges the following claims: (1) a claim of excessive force against Keske and Garret under 42 U.S.C. § 1983 (Count I); (2) a claim of conspiracy to use excessive force against Keske, unknown North Chicago police officers, and Taser International under 42 U.S.C. § 1983 (Count II); (3) strict products liability against Taser International and unknown employees under Illinois law (Count III); (4) battery against Keske, Garrett, and unknown police officers under Illinois law (Count IV); (5) intentional infliction of emotional distress against Keske, Garret, and unknown police officers under Illinois law (Count V); and (6) indemnity against the city of North Chicago under 745 Ill. Comp. Stat. 10/9-102.

In addition to the allegations of the complaint, the court takes judicial notice of a prior criminal proceeding against Wilson involving an incident that also occurred on November 3, 2009. According to records of that state court criminal proceeding, Wilson pleaded guilty to a single count of aggravated battery. During his plea colloquy, Wilson stipulated that he had knowingly caused bodily harm to defendant Keske by kicking him about the head in a public way. Transcript of Negotiated Plea Proceedings, Case No. 09 CF 4385 (Lake County, Illinois Apr. 5, 2010) (attached as Exhibit A to Motion [18-1]).

Several of the defendants have filed two motions to dismiss. In the first, defendant officer Marc Keske seeks to dismiss the claims of excessive force (Counts I & II), battery (Count IV), and intentional infliction of emotional distress (Count V) against him.*fn1 In the second, Taser International and its unknown employees seek the dismissal of the civil rights conspiracy claim against Taser International(Count II), as well as the products liability claim (Count III) against both of them. Alternatively, the moving defendants seek a more definite statement of Wilson's claims under Federal Rule of Civil Procedure 12(e).

STANDARD OF REVIEW

A complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, a complaint must contain "enough facts to state a claim to relief that is plausible on its face" and also must state sufficient facts to raise a plaintiff's right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). In Iqbal, the Supreme Court stated that a claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

The court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F. 2d 366, 368 (7th Cir. 1992). However, "in examining the facts and matching them up with the stated legal claims, we give 'the plaintiff the benefit of imagination, so long as the hypotheses are consistent with the complaint.'" Bissessur v. Ind. Univ. Board of Trustees, 581 F. 3d 599, 603 (7th Cir. 2009).

ANALYSIS

I. Keske's Motion to Dismiss Excessive Force Claims ...


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