The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Kevin McDonald has sued Chicago police officers Rodolfo Camarillo, Jr. and Lou Toth and the City of Chicago. The City has moved to dismiss count 4 of McDonald's third amended complaint for failure to state a claim. For the reasons stated below, the Court denies the motion.
McDonald alleges that on November 7, 2009, he was taken into police custody by Camarillo and Toth without a proper legal basis, jailed, and falsely charged with criminal trespass to land. Earlier versions of McDonald's complaint included state law claims for false arrest, malicious prosecution, negligent supervision, and negligent retention. McDonald later agreed to dismiss the negligent retention and negligent supervision claims with prejudice.
In his third amended complaint, McDonald asserts a claim under 42 U.S.C. § 1983 for unreasonable seizure and state law claims for false arrest, malicious prosecution, and "willful and wanton supervision." The City has moved the Court to dismiss the latter claim on the grounds that it is barred by the Illinois Tort Immunity Act; it is the same as the previously-dismissed claim for negligent supervision; it is duplicative and serves no purpose because that the City has admitted that it will indemnify the officers if they are found liable; and its factual allegations are insufficient.
When considering a motion to dismiss for failure to state a claim, the Court accepts as true all well-pleaded factual allegations in the complaint and draws reasonable inferences in favor of the plaintiff. See, e.g., Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The plaintiff is not required to make detailed factual allegations, but he must allege facts that "plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). That said, the Court determines only the sufficiency of the plaintiff's complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).
To prevail on his claim of willful and wanton supervision, McDonald must demonstrate that the City acted with the intention to cause harm or in a manner that showed an utter indifference to or conscious disregard for the safety of others. 745 ILCS 10/1-210. He can establish conscious disregard by showing the City knew or should have known its employee behaved in a dangerous or otherwise incompetent manner and failed to exercise ordinary care to prevent the behavior. See Murray v. Chicago Youth Center, 224 Ill. 2d 274, 286, 864 N.E.2d 227, 235 (2007).
The City first contends that McDonald's claim is barred under the Illinois Tort Immunity Act, specifically 745 ILCS 10/2-201. This section provides:
[A] public employee serving in a position involving determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused. 745 ILCS 10/2-201.
Section 2-201 bars a plaintiff's claim if the action leading to the plaintiff's injury involved both a policy decision and a discretionary act. Harineck v. 161 North Clark St. Ltd. P'ship, 181 Ill. 2d 335, 341, 692 N.E.2d 1177, 1181 (1998). A policy decision is one that requires the public employee to balance competing interests and make a judgment call as to which course of action would best serve those interests. Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 373, 799 N.E.2d 273, 281 (2003). A discretionary act is one that is unique to a particular public office and performed with a degree of flexibility. Snyder v. Curran Twp., 167 Ill. 2d 466, 467, 657 N.E.2d 988, 989 (1995).
By contrast, section 2-201 does not cover the performance of ministerial actions. In re Chicago Flood Litig., 176 Ill. 2d 179, 194, 680 N.E.2d 265, 272 (1997). A ministerial act is one that is performed on a given state of facts in a prescribed manner, under the mandate of legal authority, without reference to the official's discretion regarding the propriety of the act. Snyder,167 Ill. 2d at 467, 657 N.E.2d at 989. Ministerial acts do not involve any sort of judgment or determination but instead involve the execution of a set task that is "absolute, certain, and imperative." Chicago Flood Litig., 167 Ill. 2d at 194, 680 N.E.2d at 272.
Immunity, of course, is a defense. For that reason, the issue before the Court is whether the complaint itself establishes as a matter of law that statutory immunity bars McDonald's negligent supervision claim. It does not. Specifically, the Court cannot determine from the complaint alone that the City's supervision of the particular officer required both a determination of policy and an exercise of discretion. Though both are often involved in supervising employees, this is not enough to require dismissal. Rather, the complaint must "plainly reveal" "everything necessary to satisfy the affirmative defense." United States v. Louis, 411 F.3d 838, 842 (7th Cir. 2008); see Patton v. Chicago Heights, No. 09 C 5566, 2010 WL 1813478, at *3 (N.D. Ill. May 03, 2010) (noting that "while intuitively, it would seem that the training of police officers would require discretion and involve policy determinations, cases are not to be decided on the basis of intuition"). The act of supervision in question could just as well be ministerial, and the City does not point to any allegations in the complaint to contradict this possibility.
Instead, the City relies solely on Taylor v. City of Chicago, No. 96 C 1979, 1997 WL 51445 (N.D. Ill. Feb. 3, 1997),to argue that supervision of police officers is discretionary and involves policy determinations. In Taylor, the court dismissed a claim of willful and wanton failure to train, supervise, and control officers, holding that immunity under section 2-201 applied. The court reasoned that "[s]ubsidiary acts associated with the operation of a police department include hiring and training decisions. Such decisions are inherently discretionary and, therefore, subject to the immunities provided by the Tort Immunity Act." Id. at *4. Taylor does ...