Name of Assigned Judge Blanche M. Manning Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons stated below, the defendant's motion to dismiss [17-1] is granted. The plaintiff has 14 days from the date of entry of this order to file an amended complaint as provided herein. The defendants shall have 14 days thereafter to answer or otherwise plead to the amended complaint.
O[ For further details see text below.]
Clifton Balentine filed suit against the Village of Hazel Crest and two village police officers alleging claims related to the shooting of his two dogs. The defendants move to dismiss one of the plaintiff's claims. For the reasons stated below, the motion is granted.
The following facts are drawn from the complaint. The plaintiff alleges that in the early morning hours of September 12, 2011, his two dogs, Damien and Cujo, escaped from his house and were wandering near his yard. Sergeant Lewis of the Hazel Crest Police Department was on patrol and saw the dogs. Lewis fired his Taser and struck Damien. He then fired gunshots at Damien as the dog was running away, and also shot Cujo. Both dogs were struck by the gunshots. When another officer, Officer Hoehn, arrived, Sergeant Lewis ordered him to continue shooting at Cujo, who died on the scene. Damien ran back to the plaintiff's house. In total, Lewis and Hoehn fired 12 shots at Damien and Cujo.
The plaintiff's complaint contains four counts: Count I is for unreasonable seizure under § 1983, Count II is for intentional infliction of emotional distress, Count III is against the Village of Hazel Crest for indemnification and Count IV is a count for respondeat superior. The defendants move to dismiss the intentional infliction of emotional distress claim.
Standard on Motion to Dismiss
A complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Seventh Circuit explains that this "[r]ule reflects a liberal notice pleading regime, which is intended to focus litigation on the merits of a claim rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (internal quotations omitted). However, a complaint must contain "enough facts to state a claim to relief that is plausible on its face" and also must state sufficient facts to raise a plaintiff's right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). According to the Supreme Court, 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." Ashcroft v. Iqbal, 556 U.S. 662, --------, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
The court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992). Nevertheless, "in examining the facts and matching them up with the stated legal claims, we give 'the plaintiff the benefit of imagination, so long as the hypotheses are ...