Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons stated below, Defendant's motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)  is granted in part. This case is set for further status hearing on 9/1/2011 at 9:00 a.m.
O[ For further details see text below.] Docketing to mail notices.
In Count I of her two-page complaint, pro se Plaintiff Mary Grzanecki ("Plaintiff") alleges that on November 15, 2008, Defendant Officer Cokeley ("Defendant") entered her home without a warrant and without good cause, and falsely arrested her. Plaintiff alleges that she was "unlawfully attacked with no just cause or provocation" by Officer Cokeley. Plaintiff alleges that Officer Cokeley used "excessive force to enter the premises, forcefully pushing [Plaintiff's] kitchen door open." Plaintiff further claims that after falsely arresting her, Defendant "fabricated false charges [against her] in retaliation [for] violating her civil rights by malicious prosecution." Defendant also allegedly "falsi[fied] reports by misinformation and defamation of the plaintiff's character and privacy with false information." Accordingly, interpreting Plaintiff's complaint broadly and making all reasonable inferences in her favor, Count I can be read to include claims for (1) unlawful entry; (2) false arrest; (3) excessive force; (4) malicious prosecution; and (5) some sort of "defamation"-type claim.
In Count II (titled "Intentional Tort Assault and Battery"), Plaintiff alleges that Defendant committed the intentional tort of assault and battery. Lastly, in Count III (titled "Respondeat Superior") Plaintiff contends that the above-mentioned acts were done while Officer Cokeley was acting within the scope of his employment.
A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555, 569 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 562. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
Defendant argues that Counts II, III and portions of Count I of Plaintiff's complaint are time barred by the Local Government and Governmental Employee Tort Immunity Act, 745 ILCS 10/1-202, and should be dismissed. Plaintiff responds that "the limitations period did not begin to run * * * until after the dismissal of the criminal charges on Oct 27, 2009." Pl. Resp. at 1. Plaintiff further argues that the statute of limitations applicable to her claims comes from 735 ILCS 5/13-202, which proscribes a two-year limitations period for actions for personal injury, false imprisonment, or malicious prosecution.
In general, a statute of limitations defense is an affirmative defense that is not susceptible to disposition on a Rule 12(b)(6) motion to dismiss. However, "a statute of limitations defense [raised in a motion to dismiss] is appropriate where, [as here,] "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.'" Adonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). In her complaint, Plaintiff explicitly states that the incidents at issue occurred "on or about November 15, 2008." Cmplt. at 1. Plaintiff filed her complaint on November 15, 2010 . Plaintiff does not argue that Defendant's statute of limitations defense may not be considered in this motion to dismiss.
The Illinois Local Governmental and Governmental Employees Tort Immunity Act states in relevant part:
No civil action 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 of the cause of action accrued. For purposes of this Article, the term "civil action" includes any action, whether based upon the common law or statutes or Constitution of this State.
745 ILCS 10/8-101. The one-year statute of limitations applies to civil actions commenced under state law against state employees. See id.; Walden v. City of Chicago, 755 F. Supp. 2d 942, 959 (N.D. Ill. 2010). Accordingly, the statute of limitations for Plaintiff's state law claims against Officer Cokeley is set forth in 745 ILCS 10/8-101, not 735 ILCS 5/13-202.
Plaintiff's claim for "assault and battery" is an Illinois state-law claim against a state employee; therefore it is governed by the Tort Immunity Act. That claim accrued on November 15, 2008-the day of the incident. See, e.g. Gomez v. Riccio, 2004 WL 1921053, at *3 (N.D. Ill. July 9, 2004). Because the complaint was not filed within a year of that date, it is time barred. See, e.g. Cunningham v. Village of Sauget, Ill., 2007 WL 2410109, at *8 (S.D. Ill. Aug. 23, 2007) (assault and battery claim subject to one-year statute of limitations in Illinois Tort Immunity Act); Gomez v. Riccio, 2005 WL 2978955, at *7 (N.D. Ill. Nov. 1, 2005) (same). Similarly, Plaintiff's complaint mentions "defamation of the plaintiff's character," ...