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Prewitt v. Gartner

November 8, 2010


The opinion of the court was delivered by: Charles P. Kocoras United States District Judge


CHARLES P. KOCORAS, District Judge

This matter comes before the court on the motion of Defendants Jim Bushman and Anuj Parikh to dismiss Count VII of Plaintiff Lacey Prewitt's complaint pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6). For the reasons set forth below, the motion is denied.


According to the allegations of the complaint, which we must accept as true for purposes of this motion, Warth v. Seldin, 422 U.S. 490, 501 (1975), Lacey Prewitt ("Prewitt") is a resident of Cook County, Illinois. On January 7, 2008, Prewitt went to an office of the Social Security Administration ("the SSA office"), in Elgin, Illinois. At the SSA office, Prewitt had a conversation with Defendant Anuj Parikh ("Parikh"), a claims representative for the SSA. Parikh explained that Prewitt was not entitled to social security benefits because she was employed. Prewitt replied that she was unemployed and that she should be receiving her checks. The two conversed for a while until Prewitt informed Parikh that she would leave the office and stood up from her chair. Raising his voice, Parikh demanded that Prewitt "sit down!". Prewitt told Parikh that she would schedule an appointment with another employee and moved away. At this point, Parikh called for the assistance of Ervin Gartner ("Gartner") who was a security guard employed by a private security company, Akal Security. Gartner spotted Prewitt while she was exiting the building and told her that if she did not behave like a lady, he would place her under arrest the next time she set foot in the office. Moments later, Gartner informed Prewitt that she was under arrest. In the process of arresting her, Gartner tackled her, pinned her to the ground, yanked her right arm to handcuff her, and, once she was handcuffed, sat on top of her until the Elgin police arrived. As a result, Prewitt sustained several injuries and had to be transported to the hospital in ambulance.

Immediately after her transportation to the hospital, Gartner and Jim Bushman ("Bushman"), the Agency manager, decided to file charges against Prewitt, alleging that she had assaulted Gartner. Prewitt was eventually arrested and charged with disorderly conduct.*fn1 On December 3, 2009, the criminal charges against Prewitt were dismissed pursuant to a nolle prosequi order.

On January 7, 2010, Prewitt, acting pro se, brought this action against Gartner, Bushman, Parikh, and the United States. Prewitt eventually hired an attorney and submitted her first amended complaint on March 30, 2010. On July 21, 2010, Prewitt filed a second amended complaint adding Gartner's employer, Akal Security, as an additional defendant. In her second amended complaint, Prewitt asserted eleven counts against Defendants. On August 9, 2010, we dismissed four of the eleven counts of the complaint without prejudice. On August 18, 2010, we granted the United States' motion to substitute the United States as a defendant for all claims against Bushman and Parikh. On September 7, 2010, Bushman and Parikh were reinstated as individual defendants for Prewitt's false arrest claim asserted in Count VII. Bushman and Parikh now move to dismiss Count VII pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6).


I. Motion To Dismiss For Insufficient Service

When a defendant challenges the sufficiency of service, the burden is on the plaintiff to affirmatively demonstrate otherwise. Cardenas v. City of Chicago, No. 08 C 3174, 2010 WL 610621, at * 2 (N.D. Ill. Feb. 15, 2010). The consequence of insufficient service within the requisite time period is dismissal, usually without prejudice. Fed. R. Civ. P. 4(m). Rule 4(m) provides a plaintiff with 120 days from the filing of the complaint to properly serve the defendant. The rule requires a court to extend the time period for service if the plaintiff can establish good cause for non-compliance. Id.; U.S. v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006). The determination of whether good cause exists or not is entrusted to the court's discretion. Panaras v. Liquid Carbonic Industries Corp., 94 F.3d 338, 340 (7th Cir. 1996). However, if good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time. Id.

II. Motion To Dismiss For Failure To State A Claim

A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe the allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations within a complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To state a cognizable claim, a complaint must describe the claim in sufficient detail to give the defendant notice of what it is and the ground upon which it rests and plausibly suggest that the plaintiff has a right to relief. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir.2007).

With these principles in mind we turn to the ...

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