The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on motions for summary judgment by each of the defendants in this case (Docs. 83, 85, 86) and motions to dismiss by each of the defendants (Docs. 52, 63, 77). The plaintiff filed responses to the motions for summary judgment. (Docs. 90, 96, 97) and to the motion to dismiss (Docs. 65, 79). The Court shall address these motions in turn.
The motions before the Court arise out of two connected events. On July 4, 2008, Burnett was flipped off by a neighbor who also yelled obscenities at him while driving by. Burnett was upset by this behavior and called the police to make a police report which he ultimately did not file. In his complaint, Burnett states the police's failure to arrest his neighbor violated Burnett's right to be equally protected. These facts will be discussed in more detail in regard to the Defendants' Motion to Dismiss.
The next event occurred several months later on November 25, 2008. On that day, Burnett was still upset his neighbor was not arrested over the prior incident and so he called the police on himself and reported that he (Burnett) was in the street causing a disturbance. The police arrived at his residence at which point he was arrested for filing a false police report and resisting arrest. He was then brought to the Williamson County Jail. It is out of these events Burnett claims he was the victim of use of excessive force and false arrest. These facts will further be explicated in the analysis for summary judgment.
Defendants filed a motion to dismiss Defendants Clark, Ritter, and Ridings on the grounds of barring by the statute of limitations. Illinois state law governs the statute of limitations for a claim under 42 U.S.C. 1983. Kalimara v. Illinois Department of Corrections, 879 F.2d 276 (7th Cir. 1989). The Seventh Circuit has held the proper statute of limitations under Illinois law for §1983 claims is two years. Kalimara, 879 F.2d at 277.
The events complained of begin on July 4, 2008. On this day, Burnett was walking along a road when Reid drove by as a passenger in a car, flipped him off and yelled obscenities at him. Reid did not threaten Burnett with bodily injury nor use the vehicle to threaten Burnett. Burnett first called Williamson County Police and was told there was a warrant for Reid's arrest. Burnett then called Defendant Karen Clark at Dispatch for Herrin Police on the non-emergency number. He asked if the Herrin Police arrested people on warrants, was told they did not, and then ended the call. He later called Clark again and stated he wanted to report a disturbance. According to Burnett, Clark asked his name and then stated she could not help him. He then hung up without making a report. He took no other actions to file a police report against Mr. Reid and there were no further incidences between Reid and Burnett.
On July 7, 2008, Burnett contacted the Mayor of Herrin, defendant Vic Ritter, to discuss filing a complaint against Reid but was again told nothing could be done. On July 9, 2008, Burnett also called defendant Chief Stu Ridings of the Herrin Police Department to find out why nothing was done about Reid.
The complaint alleges a violation of 42 U.S.C. §1983 through the failure to arrest Reid and "depriving plaintiff of freedom and not equally protecting Plaintiff from neighbor." (Para. 21-2, Plaintiff's Second Amended Complaint, Doc. 40). As such these allegations are governed by the two-year statute of limitations. Id.Although Burnett fails to set out which defendants are included in each count, it can reasonably be concluded the allegation of failure to arrest Reid is against the City of Herrin, the Herrin Police, Quinn Laird, Vic Ritter, Stu Ridings, and Karen Clark. The events with these defendants occurred on July 4, July 7 and July 9, 2008. The complaint was filed by Burnett on July 19, 2010. As such, the claims against Quinn Laird, Vic Ritter, Karen Clark, and Stu Ridings are barred by the statute of limitations. Although the Defendant's Motion to Dismiss (Doc. 52) is limited to Vic Ritter, Karen Clark, and Stu Ridings, any claim against the Quinn Laird, the City of Herrin and the Herrin Police Department based upon the events of July 4th is also barred by the statute of limitations.
The Court grants the motion to dismiss (Doc. 52) and dismisses Count I with prejudice against all potential defendants including Vic Ritter, Karen Clark, Stu Ridings, the City of Herrin, the Herrin Police Department, and ...