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Darnez Perkins and Mickin Perkins v. Chicago Police Officers O'shaughnessy

February 9, 2011


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiffs Darnez and Mickin Perkins allege misconduct by four City of Chicago ("the City") police officers ("Defendant Officers") and seek indemnification from the City for any judgment against the Defendant Officers. Plaintiffs filed a five-count complaint. Count I alleges violation of Plaintiffs' Fourth Amendment rights under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Count II claims illegal search and seizure and false arrest pursuant to 42 U.S.C. § 1983. Counts III, IV and V are state law claims for false imprisonment, intentional infliction of emotional distress and indemnification, respectively. Defendants now move to dismiss counts III, IV and V. For the following reasons, Defendants' motion to dismiss is granted in part and denied in part.


Plaintiffs allege that on January 2, 2009, they were presented with a warrant to search their home, the person of one Lennell Jones, and to seize any dogs in violation of 720 ILL. COMP. STAT. 5/12-36 (2010) (possession of unsterilized or vicious dogs by felons). The search warrant stated that Defendant Officers were investigating an animal abuse complaint. The search warrant was executed and Plaintiffs' dogs and other belongings were seized. Plaintiffs were arrested and charged with counts not specified in complaint.

The Cook County Circuit Court found that the complaint for search warrant was knowingly and recklessly false. The warrant authorizing search of Plaintiffs' home therefore lacked probable cause. Consequently, all charges against Plaintiffs were dismissed in June 2009.


Motions to dismiss challenge the sufficiency of a complaint, not its merits. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). For the purpose of ruling on this motion, I must treat all of the facts alleged in the complaint as true and draw all reasonable inferences in the plaintiffs' favor. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir. 1992). To survive a motion to dismiss, plaintiffs must allege facts sufficient to state a claim for relief that is facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007). A claim for relief is plausible if the well-pleaded facts allow me to "infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, - - - U.S. - - - -, - - -, 129 S. Ct. 1937, 1950, 173 L. Ed.2d 868 (2009).


Defendants move to dismiss counts III, IV and V because they are barred pursuant to the relevant statute of limitations, and Plaintiffs concede that counts III and IV are stale. As to count V, Plaintiffs argue that Defendants mischaracterized their assertion as a respondeat superior claim. According to Plaintiffs, count V is a properly pleaded claim for indemnification by the City pursuant to the Illinois Governmental Tort Immunity Act ("the Act"), 745 ILL. COMP. STAT. 10/9-102 (2002), for any judgment against the Defendant Officers. Plaintiffs argue that although no judgment has been entered against the Defendant Officers, they may file a claim for indemnification concurrent with their other claims.

A. Counts III and IV Expired Under the Statute of Limitations.

The parties do not dispute that counts III and IV expired under the relevant statute of limitations. The statute provides that "no civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." 745 ILL. COMP. STAT. 10/8-101(a) (2003). Subsection (b) is inapplicable because it refers to injuries "arising out of patient care." 745 ILL. COMP. STAT. 10/8- 101(b). Subsection (c) defines "civil action" to include common law claims. 745 ILL. COMP. STAT. 10/8-101(c). Counts III and IV are common law claims for false imprisonment and intentional infliction of emotional distress against the employees of a local entity, the City. Therefore, the limitation described in subsection (a), one year, applies in this case.

Defendants state that the latest date on which Plaintiffs' causes of action could have accrued was January 2, 2009, when the search warrant was obtained and executed. However, Plaintiffs' causes of action arguably accrued in June 2009, when the Cook County Circuit Court held that the Defendant Officers' search warrant lacked probable cause. Regardless, the claims in counts III and IV are time barred because Plaintiffs filed their complaint on September 1, 2010, more than one year after the court's ruling.

B. Count V States a Properly-Pleaded Claim for Indemnification Under the Act. The remaining question I must decide is whether Plaintiffs may bring a claim for indemnification pursuant to the Act before any judgment has been rendered against the Defendant Officers.

The Act provides in relevant part: "a local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages (and may pay any associated attorney's fees and costs) for which it or an employee while acting within the ...

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