The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.
Wednesday, 07 September, 2011 09:17:28 AM
Clerk, U.S. District Court, ILCD
This cause is before the Court on the Motion to Dismiss First Amended Complaint (Motion) (d/e 40) filed by Defendants Neil Williamson, Sheriff, Sangamon County, Illinois; Travis Koester, Deputy Sheriff, Sangamon County, Illinois; Brad Tweryon, Deputy Sheriff, Sangamon County, Illinois; and Sangamon County, Illinois, a body politic. Plaintiff, Paul F. Moriconi, has filed a response to the Motion.
For the reasons stated below, Defendants' Motion is GRANTED IN PART and DENIED IN PART.
In June 2011, this Court granted, in part, Defendants' Motion to Dismiss and granted Plaintiff leave to file an amended complaint. This Court also directed Plaintiff to add Sangamon County as a party pursuant to Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (2003) ("a county in Illinois is a necessary party in any suit seeking damages from an independently elected county officer. . . in an official capacity").
In July 2011, Plaintiff filed his First Amended Complaint. The First Amended Complaint alleges that on July 28 and 29, 2009, Defendants investigated a purported altercation at a tavern known as Bootleggers in Springfield, Illinois. Upon arriving at the scene, Deputies Koester and Tweryon told Plaintiff, who was trying to break up the altercation, to back away from one of the participants in the altercation. Plaintiff "allegedly failed to back up quickly enough to suit" the Deputies. (First Amd. Cmplt. ¶¶ 19, 36). Deputies Koester and Tweryon then used a taser device on Plaintiff.
Plaintiff was knocked to the ground, arrested, and taken into custody. Plaintiff alleges he was nearly killed, suffered personal injury, emotional distress, and damage to his reputation, all of which are permanent.
Plaintiff further alleges that "Defendant"--although it is not clear from the Complaint which Defendant-- "implemented a policy for taser use which permitted and guaranteed the unlawful use of excessive force and[,] alternatively[,] if the policy is considered to be reasonable[,] then the Defendants violated the Policy." (First Amd. Cmplt., ¶¶ 20, 37). Plaintiff also alleges that Deputies Koester and Tweryon were not properly trained in the use of taser devices and their conduct in using the taser on Plaintiff violated the "Sangamon County Sheriff's Department's written policies and guidelines pertaining to the use of Taser devices." (First Amd. Cmplt., ¶¶ 22, 39). Finally, Plaintiff alleges that Sheriff Williamson "in his official capacity permitted and encouraged by a policy[,] which on its face may have appeared to be reasonable[,] the unlawful use of tasers by his Deputies involving excessive force which violated the Constitutional rights of Plaintiff as aforesaid." (First Amd. Cmplt. ¶ 88).
Counts I and II are excessive force claims brought against Deputies Koester and Tweryon in their individual capacities. Count III is an excessive force claim against Sheriff Williamson in his official capacity. Count IV, as clarified by Plaintiff in his response to the Motion to Dismiss, is not an "independent action other than indemnification from the County of Sangamon."
In their Motion, Defendants assert: (1) Counts I and II should be dismissed because each count fails to state a claim upon which relief may be granted; (2) Deputies Koester and Tweryon are entitled to qualified immunity on Counts I and II; (3) Count III should be dismissed because no unconstitutional conduct has been established and, therefore, the Sheriff's ...