The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This case comes before the Court on Defendant United States of America's ("United States") motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, the motion is granted in part and denied in part.
This dispute arose on January 7, 2008, when Plaintiff Lacey Prewitt ("Prewitt") visited an office of the Social Security Administration (the "SSA Office") in Elgin, Illinois. At the SSA Office, Prewitt spoke with an employee, Defendant Anuj Parikh ("Parikh"). Parikh explained to Prewitt that she was not entitled to social security benefits because the records showed she was employed. Prewitt, after insisting that she was unemployed, stood up and informed Parikh that she was leaving the SSA Office. Raising his voice, Parikh demanded that Prewitt "sit down!". Prewitt then informed Parikh that she would go home and schedule an appointment with another employee. At this point, Parikh contacted Ervin Gartner ("Gartner"), a security guard which the United States maintains is employed by a private security company, Akal Security. Gartner spotted Prewitt while she was exiting the building and told her that if she did not behave like a lady next time she came into the SSA Office, he would arrest her. Moments later, Gartner informed Prewitt that she was under arrest. In the process of arresting Prewitt, Gartner tackled her, pinned her to the ground, yanked her right arm to handcuff her and, once she was handcuffed, sat on top of her until the Elgin police arrived. As a result, Prewitt sustained several injuries and was transported to the hospital in an ambulance. Immediately thereafter, Gartner and Defendant Jim Bushman ("Bushman"), the manager of the SSA Office, complained to the police that Prewitt assaulted Gartner. That same day, Prewitt was arrested and charged with disorderly conduct. The criminal charges against Prewitt were eventually dismissed.
On May 11, 2011, Prewitt filed a complaint against the United States and two federal employees, Parikh and Bushman, asserting claims for intentional and negligent infliction of emotional distress, spoilation of evidence, malicious prosecution, and abuse of process. For the spoilation of evidence claim, Prewitt alleges that the SSA Office failed to preserve audio and video recordings of the incident from security cameras on its premises. The United States alleges that any recordings of the incident were automatically overwritten before Prewitt requested the recordings. Prewitt also generally asserts that the United States is liable under the doctrine of respondeat superior for the conduct of Bushman and Parikh. Finally, Prewitt's complaint notes that additional claims are pending in a related case, Prewitt v. United States, 10-cv-102 (N.D. Ill.), against the parties in this case as well as Gartner and his probable employer, Akal Security. This Memorandum Opinion does not address the propriety of the claims asserted in the related case.
As a preliminary matter, the United States filed a motion to dismiss the individual defendants, Parikh and Bushman, and substitute the United States as the sole defendant. Because the Court granted the motion in a separate Order, the Court often refers to the United States in place of Parikh and/or Bushman. The United States now moves for judgment on the pleadings.
After the parties have filed the complaint and answer, a defendant may move for judgment on the pleadings if the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(c), 12(h)(2)(B). In ruling on a motion for judgment on the pleadings, the court only considers the pleadings, which consists of the complaint, the answer, and any written instruments attached as exhibits. Hous. Auth. Risk Retention Grp., Inc. v. Chi. Hous. Auth., 378 F.3d 596, 600 (7th Cir. 2004). Where a defendant files a motion for judgment on the pleadings, the court construes the allegations in the complaint in the light most favorable to the plaintiff. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Additionally, the court accepts the allegations of the answer as true to the extent such allegations do not conflict with the complaint. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1301 n.2 (9th Cir. 1992); Moore v. Beck, 2010 WL 5140008, at *3 (E.D.N.C. Dec. 9, 2010). When the complaint and answer conflict on a material issue of fact, judgment on the pleadings is improper. 5C Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice & Procedure § 1368 (3d ed. 2011).
The Federal Tort Claims Act ("FTCA") provides the exclusive remedy for an action against the United States for injury caused by the negligent or wrongful act or omission of any federal employee while acting within the scope of his or her employment where the United States, if a private person, would be liable under applicable state tort law. See 28 U.S.C. §§ 1346(b)(1), 2679(b)(1).
While the FTCA waives the United States' sovereign immunity, the FTCA expressly prohibits tort suits for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h).
The United States argues that Section 2680(h) bars Prewitt's claims for intentional and negligent infliction of emotional distress, malicious prosecution, and abuse of process because such claims are expressly prohibited or arise out of an expressly prohibited tort. While the Court agrees that Section 2680(h) expressly prohibits Prewitt's claims for malicious prosecution and abuse of process, additional analysis is necessary to determine whether Prewitt's claims for intentional and negligent infliction of emotional distress arise out of a tort prohibited by Section 2680(h).
Prewitt asserts claims for intentional and negligent infliction of emotional distress against Gartner, in the related case, and against Parikh. Although Prewitt's emotional distress claims against Gartner arise out of the assault and battery allegedly committed by Gartner, Prewitt's emotional distress claims against Parikh stem from Parikh shouting at Prewitt and contacting Gartner to escort Prewitt out of the SSA Office. Such allegations are based on the independent actions of Parikh and do not arise out of the assault and battery committed by Gartner or ...