The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, we grant in part and deny in part the motion to dismiss.
On January 30, 2009, at approximately 1:52 p.m., Plaintiff Katrice Rhyan (Rhyan) allegedly exited the house of a friend in the City of Waukegan, Illinois (City). When Rhyan got into her vehicle, her vehicle was allegedly immediately surrounded by three police cars occupied by the individual Defendants (Defendant Officers), who were police officers for the City. Rhyan contends that one of Defendant Officers asked her to exit her vehicle and she complied. When one of Defendant Officers attempted to search Rhyan, she allegedly requested a female officer to search her. According to Rhyan, one of the Defendant Officers continued to search her. Rhyan contends that she was thrown to the ground and held down by two Defendant Officers while another Defendant Officer sprayed pepper spray in her face. Rhyan was allegedly then arrested and taken to the City.
Rhyan includes in her amended complaint claims alleging excessive force brought pursuant to 42 U.S.C. § 1983 (Section 1983), assault and battery claims (Count II), Section 1983 false arrest and illegal imprisonment claims (Count III), a Section 1983 Monell claim (Count IV), and willful and wanton conduct claims (Count V). Defendants now move to dismiss all claims.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).
I. Facts Beyond the Scope of the Pleadings
Defendants contend that Rhyan improperly seeks to have the court consider facts included in her response to the instant motion that are not included in the amended complaint. In ruling on a Rule 12(b)(6) motion, a court cannot consider materials outside the pleadings unless the court converts the motion into a motion for summary judgment and provides the parties with an opportunity to file additional documents. See Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 479 (7th Cir. 2002)(stating that "Rule 12(b) requires that if the district court wishes to consider material outside the pleadings in ruling on a motion to dismiss, it must treat the motion as one for summary judgment and provide each party notice and an opportunity to submit affidavits or other additional forms of proof"). We agree that Rhyan has raised additional facts in her response to the instant motion that were not included in the amended complaint. For example, Rhyan contends in her response that she was a "17-year old, female high school student of a petite build," and that there was no justification for the alleged force used by Defendant Officers who were "fully grown men." (Ans. 4). Although Rhyan has introduced new facts in her response, we will not consider such facts in ruling on the instant motion. Our ruling will be confined to a consideration of the facts alleged in the amended complaint.
II. Excessive Force Claims
We initially note that although Defendants move to dismiss all claims in the amended complaint, Defendants have put forth no arguments concerning the excessive force claims included in the amended complaint. Rhyan indicates in the amended complaint that she is bringing Section 1983 claims and that one of the basis for such claims is the alleged force used by Defendant Officers in arresting Rhyan, which she contends "was unnecessary, unreasonable and excessive." (A. Compl. Par. 18). An excessive force claim is a valid, recognized Section 1983 claim. See, e.g., Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir. 2009)(explaining that "[a] seizure for purposes of the Fourth Amendment is unreasonable if it is accomplished through the use of excessive force"). Although Rhyan has not included a specific count entitled "Section 1983 excessive force claims" in the amended complaint, there is nothing that requires her to provide separate counts or titles for each claim under the federal pleading standard. Regardless, it appears that Count I, which incorporates the facts concerning the alleged use of excessive force, would constitute a separate count encompassing Section 1983 excessive force claims. Defendants have not set forth any arguments concerning why Rhyan's list of facts included in the amended complaint involving her alleged restraint and subjection to pepper spray would not at least state a claim for a Section 1983 excessive force claim. Under Rhyan's alleged facts, which we must accept as true at the pleadings stage, Rhyan has alleged facts relating to unjustified force against her. The unnecessary and unprovoked usage of pepper spray can form the basis for a Section 1983 excessive force claim. See, e.g., Gonzalez, 578 F.3d at 541 (stating that "it is clearly established that officers may not, without provocation, start beating, pepper-spraying, kicking, and otherwise mistreating people"). While Defendants may be able to provide a valid justification for the actions of Defendant Officers, we cannot consider such facts outside the pleadings at this juncture. See McDonald by McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992)(explaining that at the motion to dismiss stage a court is "limited to looking at the plaintiff's pleadings taken as true, without the additional fact development of a summary judgment procedure"). Therefore, we deny the motion to dismiss the Section 1983 excessive force claims. We note that at the summary judgment stage, Rhyan cannot merely rely upon the allegations in her amended complaint, and will need to point to sufficient evidence to support her excessive force claims.
III. Assault and Battery Claims
Defendants argue that the assault and battery clams are barred by the Illinois Tort Immunity Act. The Illinois Tort Immunity Act protects "public employees from liability for actions committed 'in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.'" Chelios v. Heavener, 520 F.3d 678, 692-93 (7th Cir. 2008)(quoting 745 ILCS 10/2-202). Defendants contend that Rhyan has failed to allege willful and wanton conduct in this action. Willful and wanton conduct includes "'actual or deliberate intention to harm or with an utter indifference to or conscious disregard for the safety of others.'" Chelios, 520 F.3d at 693 (quoting in part Breck v. Cortez, 490 N.E.2d 88, 94 (Ill. App. Ct. 1986)). Willful and wanton conduct is deemed to be "'more than mere inadvertence, incompetence, or unskillfulness. . . .'" Chelios, 520 F.3d at 693 (quoting in part Carter v. Chi. Police Officers, 165 F.3d 1071, 1080-81 (7th Cir. 1998)(stating that willful and wanton conduct "may be an act committed under circumstances exhibiting a reckless disregard for the safety of others"). In the instant action, at the pleadings stage, the court must accept as true Rhyan's alleged facts, and the court must confine its consideration of facts to those included in the pleadings. See, e.g., Haskins, 966 F.2d at 295. Rhyan contends that she exited her friend's home and, upon entering her vehicle, she was surrounded by Defendant Officers. She contends that when she asked for a female officer to conduct the search of her person, Defendant Officers threw her to the ground, physically restrained her and sprayed her in the face with pepper spray. Finally, Rhyan contends that she was arrested and taken into custody. There are no facts alleged in the amended complaint that would indicate a provocation on the part of Rhyan that would have justified the alleged physical response and arrest by Defendant Officers. Although Defendants may be able to put forth different facts or additional facts that explain a valid basis for Defendant Officers' actions and for the arrest of Rhyan, the court at the ...