The opinion of the court was delivered by: Reagan, District Judge:
A. Introduction and Procedural History
On June 25, 2010, Kim Elliot filed suit in the Circuit Court of Wabash County, Illinois against the City of Mt. Carmel, Illinois ("the City"), three officers of the Mt. Carmel Police Department (Jared Price, Brian Siefferman, and Erin Roe), the Wabash County Illinois Sheriff's Department, and "Unidentified Officers of the Wabash County, Illinois Sheriff's Department." The complaint alleges that on May 14, 2009, Mt. Carmel Police Department officers entered Kim Elliot's home, that Jared Price used excessive force in restraining Elliot (thereby fracturing her arm), that Siefferman and Roe failed to prevent Price's unjustified use of force, that the police officers did not offer medical attention to Elliot on the scene, and that she was denied medical attention after being taken to Wabash County Jail, where she complained of severe pain to unidentified officers of the Wabash County Sheriff's Department.
Organized into eight counts based on 42 U.S.C. § 1983 and Illinois law, the complaint presents the following claims, all arising from the May 14, 2009 events.
COUNT I -- Against Jared Price, Brian Siefferman, Erin Roe and Unidentified Officers of the Wabash County Sheriff's Department, § 1983 claims for excessive use of force and deliberate indifference to medical needs; ◊ COUNT II -- Against Jared Price for battery; ◊ COUNT III--Against Jared Price for assault; ◊ COUNT IV -- Against Jared Price for intentional infliction of emotional distress; ◊ COUNT V--Against the City, a respondeat superior claim under § 1983 for the police officers' acts committed during their employment with the City, seeking to hold the City "liable for the conduct of its agents" (Doc. 2-2, p. 9); ◊ COUNT VI--Against the City, a claim for "indemnification," seeking compensatory damages from the City for the constitutional violations by Price, Siefferman and Roe during the course of their employment via an Illinois statute (735 ILCS 10/9-102)*fn1 ; ◊ COUNT VII-- Against the Wabash County Sheriff's Department, a respondeat superior claim under § 1983 for the acts of the Unidentified Officers of the Wabash County Sheriff's Department (presumably this relates to the denial of medical care to Elliot, although the caption of this count refers only to "excessive force"); and
COUNT VIII -- Against the Wabash County Sheriff's Department, a claim for "indemnification," seeking compensatory damages from the Department for the actions of the Unidentified Officers of the Wabash County Sheriff's Department during their employment via 735 ILCS 10/9-102.
On August 12, 2011, four Defendants -- the City of Mt. Carmel along with Mt. Carmel Police Officers Price, Siefferman and Roe (collectively, "the Mt. Carmel Defendants") -- removed the action to this United States District Court. Randomly assigned to the case, the undersigned District Judge verified the existence of federal subject matter jurisdiction (which lies under 28 U.S.C. § 1331), tracked the case, and scheduled a November 2011 final pretrial conference and jury trial date. The Magistrate Judge assigned to the case entered a Scheduling and Discovery Order soon thereafter (see Doc. 14), and defense counsel entered.
The Wabash County Sheriff's Department filed an answer with affirmative defenses on September 21, 2010 (Doc. 16). After an unfruitful attempt to strike the affirmative defenses, Plaintiff Elliot answered the affirmative defenses on November 24, 2010 (Docs. 26-27). The Mt. Carmel Defendants obtained additional time and timely answered on October 1, 2010 (Doc. 19).
The Wabash County Sheriff's Department moved for judgment on the pleadings as to three counts of the complaint on June 6, 2011 (Doc. 33). Supporting and opposing briefs have been filed as to that motion. The Mt. Carmel Defendants filed a summary judgment motion on July 22, 2011 (Doc. 37), and a briefing schedule has been entered on that motion. The docket sheet reflects no service on or entry of appearance by the final named Defendant(s) -- the Unidentified Officers of the Wabash County Illinois Sheriff's Department.
Fully ripe as of August 1, 1011, the motion for judgment on the pleadings comes now before the Court for disposition. For the reasons stated below, the Court grants the motion (Doc. 33).
B. Applicable Legal Standards
Rule 12(c) permits a party to move for judgment "after the pleadings are closed -- but early enough not to delay trial." In deciding a motion for judgment on the pleadings, the court "views the facts in the complaint in the light most favorable to the nonmoving party." Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Accord Pisciotta v. Old National Bancorp, 499 F.3d 629, 633 (7th Cir. 2007)("We take the facts alleged in the complaint as true, drawing all reasonable inferences in favor of the plaintiff."). See also Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004); GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995).
In other words, the same standard governs Rule 12(c) motions for judgment on the pleadings and Rule 12(b)(6) motions to dismiss for failure to state a claim. United States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991).The motions are just made at different points in the litigation.*fn2
So this Court applies the approach established in Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1949 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). As with Rule 12(b)(6) motions, to survive a Rule 12(c) motion, the complaint must allege sufficient facts which -- accepted as true -- state a claim to relief that is facially plausible. "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." Bausch, 630 F.3d at 558, quoting Twombly, 550 U.S. at 570.
However, if matters "outside the pleadings" are presented to and considered by the court on a motion for judgment on the pleadings, the motion "must be treated as one for summary judgment," and all parties must be given a reasonable opportunity to present pertinent materials. FED.R.CIV.P. 12(d).See also General Ins.
Co. of America v. Clark Mall Corp., -- F.3d --, 2011 WL 1663374 (7th Cir. May 4, 2011).
Thus, on a typical motion for judgment on the pleadings, the "court considers the pleadings alone, which consist of the complaint, the answer, and any written instruments attached as exhibits."Housing Authority Risk Retention Group, Inc. v. Chicago Housing Authority, 378 F.3d 596, 600 (7th Cir. 2004). See also Thompson v. Illinois Dept. of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002); FED.R. CIV.P.7(a); FED.R.CIV.P.10(c).
Mindful of these standards and confining its analysis to the "pleadings," the undersigned Judge reviews the June 6, 2011 motion, plus the supporting and opposing memoranda (Docs. 33, 34, 36, 39).
The Wabash County Sheriff's Department moves for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) as to three counts -- Counts I, VII and VIII. An initial point bears mention here. These three counts are directed against both the Wabash County Sheriff's Department and the "Unidentified Officers of the Wabash County Sheriff's Department."
No one has been served, no one has answered, and no one has appeared for the Unidentified Officers. The Sheriff's Department answered on September 21, 2010, and interposed a Second Affirmative Defense (Doc. 16, p. 7) stating: "Wabash County Sheriff's Department is a non-suable entity." The motion for judgment on the pleadings was filed not by any named Defendant but by the Sheriff of Wabash County (Joe Keeling), on behalf of the Sheriff's Department.
There is no motion by Defendants to dismiss the Department as improperly sued. There is no motion to substitute Sheriff Keeling for the Department. The motion for judgment on the pleadings states in passing that Keeling was incorrectly sued as the Wabash County Sheriff's Department and that Sheriff Keeling is the correct Defendant (Doc. 33, p. 1). The supporting memo contains a footnote (Doc. 34, p. 1, n. 1) which similarly declares: "Since the Wabash County Sheriff's Department does not enjoy a separate legal existence apart from that of Sheriff Keeling, it is not an entity subject to suit." Plaintiff's counsel flatly disputes this statement, citing one case for the proposition that sheriff's departments may be sued under § 1983 (Doc. 36, pp. 2-3, citing DeGenova v. Sheriff of DuPage County, 209 F.3d 973 (7th Cir. 2000)).
Defendants do not seek judgment on this ground, and (as is described below) the Court need not resolve the issue to decide the motion before it. The undersigned Judge notes the following, however.
DeGenova supports Plaintiff's assertion that, "Sheriffs in Illinois are distinct legal entities and may be sued under § 1983" (Doc. 36, p. 3, emphasis added). But in equating sheriffs to sheriffs' departments, Plaintiff misses the heart of Defendants' argument. Defendants do not dispute that sheriffs can be sued. This is precisely why Sheriff Keeling filed pleadings on behalf of the Sheriff's Department. He claims he, as Sheriff, is the proper Defendant (not the Department, whom Plaintiff named in the complaint). Indeed, the actual named defendant in DeGenova was the ...