The opinion of the court was delivered by: Herndon, Chief Judge:
This case involves an action for money damages brought pursuant to 42 U.S.C. § 1983 by a mother and her son against a municipality, two of its police officers, individually and in their official capacities, and other unnamed police officers, in their individual and official capacities, after one of the named officers allegedly removed the son from the mother's vehicle, took him into the police station, and beat him after overhearing the mother filing a complaint against the two named officers.*fn1
The two named officers, defendants Richard Dawes and John Redstone (collectively "defendants" for purposes of this order), filed motions to dismiss (Docs. 15 & 16), seeking dismissal of all claims brought against them by plaintiffs Alexander Brickhouse, the son, and Avianne Lee Khalil, Brickhouse's mother. Several of those claims, specifically counts IV through IX, have already been dismissed due to plaintiffs' failure to timely respond to defendants' subsequent motion to dismiss counts IV through IX (Doc. 32). Thus, only counts I and II remain against defendants as count III was not directed against them. For the reasons that follow, defendants' motions to dismiss (Docs. 15 & 16) are denied.
On May 8, 2012, plaintiffs filed a nine-count complaint against defendants, the City of Granite City, and John Doe officers I-XXX, alleging the facts below. The Court notes that at this point it takes the facts alleged as true but not legal conclusions or conclusory allegations that merely recite a claim's elements. See Munson v. Gaetz, 673 F.3d 630, 632-33 (7th Cir. 2012) (citing McCauley v. City of Chi., 671 F.3d 611 (7th Cir. 2011)).
On approximately May 9, 2010, Brickhouse was involved in a motor vehicle collision which resulted in him being transported from the scene of the incident to Granite City Hospital via an ambulance. Brickhouse was not cited for any violations of the law at the scene of the accident.
Upon admission to the hospital and during Brickhouse's medical examination, he was observed as sustaining no physical contusions or abrasions or any significant or notable injuries as a result of the collision. Brickhouse was discharged from the hospital in the early afternoon of May 9, 2010, with a minor mark from the deployment of the airbag.
Soon after Brickhouse was admitted to the hospital, his mother arrived to check on her son. Upon arrival to her son's room, she noticed two Granite City police officers, officers Redstone and Dawes, in the room, questioning her son. The two officers questioned Brickhouse regarding the incident and they issued him a citation for the following violations: 1) failing to yield on a green light; 2) failing to avoid the accident; 3) failure to wear a seat belt; and 4) failure to have insurance. The officers continued to question Brickhouse, despite the fact that he was in a hospital bed, allegedly scared and confused.
Brickhouse's mother began to feel uncomfortable with the officers' tactics and interjected, telling the officers to stop questioning her son and directing her son to stop answering their questions until an attorney could assist him. The two officers told Brickhouse's mother that it was none of her business and that Brickhouse was an eighteen year old adult. Brickhouse's mother told them that he was still in high school and as her son she had a right to advise him. The officers then threatened to arrest Brickhouse's mother. Brickhouse's mother ignored their threats and told them to leave. As the officers began to leave, officer Redstone said "stupid Muslim bitch." Brickhouse's mother responded that she would complain about his language. Redstone uttered more expletives and took on an aggressive posture. Brickhouse's mother backed up and went to her son's bed.
Upon Brickhouse's release from the hospital, Brickhouse's mother decided to immediately go to the police station to file a complaint against the officers for their conduct, offensive and abusive statements, and to protest the alleged unjustified citations issued to her son. When Brickhouse's mother went inside to file the complaint, Brickhouse remained in the car. Brickhouse's mother went to the front desk which was occupied by a desk sergeant, John Doe #1. Brickhouse's mother told the desk sergeant that she wanted to file a complaint about officers Redstone and Dawes. Brickhouse's mother was overheard by Redstone who happened to be present in the station in a room behind the front desk. Redstone stepped out of the room and saw Brickhouse's mother. He then walked outside to where Brickhouse's mother's vehicle was parked.
Once outside, Redstone banged on the window of the car to get Brickhouse's attention who was sitting in the vehicle listening to music on his Ipod. When Brickhouse opened the door, Redstone pulled the boy from the vehicle and threw him against the car. Redstone allegedly rough handled him out of the car and threw him against the side saying "your bitch mother isn't going to cause me to lose my job" or other similar words. Redstone proceeded to slam the boy against the car, pulled his arms back, and handcuffed him, tightening the cuffs excessively as he did so. Redstone then forcefully dragged and pushed Brickhouse into the station in front of his mother. He took him to a metal door that separates the holding cells from the outer reception area and when they arrived at the door, Redstone slammed Brickhouse's head into the metal door.
Redstone continued to the holding cell where he again slammed Brickhouse's head against the metal cell bars. Brickhouse fell to the floor into a fetal like position to protect his body and limit further abuse. Redstone then kicked Brickhouse in the ribs and other parts of his body, as Brickhouse screamed and pleaded for him to stop. Redstone then lifted Brickhouse using the handcuffs, causing Brickhouse's arms to pull back in an unnatural manner and resulting in severe pain in his shoulders. The pain caused him to scream in agony. Redstone then searched Brickhouse and once done, he uncuffed him and locked him in the cell. Brickhouse suffered lacerations, contusions, and bruises to his hands and body.
Brickhouse's mother watched in terror and allegedly experienced severe emotional distress as Redstone dragged her teenage son into the station and then slammed his head against the metal door. She could not offer any assistance or intercede to defend him. As she heard his screams, she pleaded with the desk sergeant, John Doe #1 and either Dawes or John Doe #2, to please stop Redstone from assaulting her son. Either John Doe #1, John Doe #2, or Dawes looked at the other and stated "I don't hear anything, do you?"
After placing Brickhouse in the jail cell, Redstone emerged from the back. Crying, Brickhouse's mother demanded to know what he did to her son and why he arrested him. Redstone replied it was because you "had to be a stupid bitch" or "Muslim bitch" or similar language and words that were equally offensive and insulting.
Brickhouse's mother left the police station and immediately called her former husband, Brickhouse's father, Earl Brickhouse. She explained to him what had happened and Brickhouse's father went to the police station to secure the release of his son. At the police station, Brickhouse's father was told that he would have to post a bond for his son, which he did.
Upon release from the police station, Brickhouse's father and his current wife immediately went to Christian Hospital Northeast to seek medical attention and treatment for the injuries suffered by Brickhouse. Brickhouse was admitted to the hospital and examined by a number of medical professionals. Brickhouse complained of pain in his chest, face, and ribs. Brickhouse was observed as having lacerations and abrasions to the left and right wrists where he was handcuffed by Redstone, as well as various other lacerations, scratches, and contusions to his body. Brickhouse suffered contusions to the chest wall, contusions to the face, and abrasions to the right forearm.
On May 11, 2010, Brickhouse's father went to the police station to pursue the matter further. He received a police report stating the Brickhouse was arrested at the scene of the accident.
Based upon these alleged facts, on May 8, 2012, plaintiffs brought a nine count complaint, alleging the following counts: 1) unconstitutional use of excessive force pursuant to § 1983 against Redstone and the John Does; 2) lawful and unreasonable seizure in violation of § 1983 against Redstone, Dawes, and John Doe #1; 3) failure to intervene in violation of § 1983 against the City of Granite City and defendant police officers; 4) Illinois common law civil conspiracy and concert of action against the City of Granite City, the Granite City police department, Redstone, and John Does; 5) assault against Redstone, Dawes, and John Doe #1; 6) battery against Redsone, Dawes, and John Doe #1; 7) intentional/reckless infliction of emotional distress against Redstone, Dawes, and John Doe #1; 8) negligent infliction of emotional distress against Redstone, Dawes, and John Doe #1; and 9) false imprisonment against Redstone, Dawes, and John Doe #1. On June 8, 2012, the City of Granite City filed its answer to the complaint. (Doc. 6). On July 5, 2012, defendants Dawes and Redstone filed separate motions to dismiss (Docs. 15 & 16) but filed a joint memorandum in support of those motions (Doc. 17). On August 8, 2012, plaintiffs filed a response to the motions to dismiss (Doc. 20).
On August 9, 2012, the City of Granite City filed a motion to dismiss count IV (Doc. 21) along with a memorandum in support thereof (Doc. 22). On August 28, 2012, defendants Dawes and Redstone filed a motion to strike plaintiffs' response to their motions to dismiss (Doc. 26), contending that the response was untimely because it was not filed within thirty days as required by the local rules and because there is not adequate citations to relevant authority or to the record. On August 29, 2012, defendants Dawes and Redstone filed a subsequent motion to dismiss (Doc. 27), seeking dismissal of counts IV through IX. On September 17, 2012, plaintiffs filed a consent motion for an extension of time to respond to defendants Dawes and Redstone's motion to dismiss counts IV through IX (Doc. 29), asking for an extension until October 1, 2012, when plaintiffs' response to the City of Granite City's motion to dismiss count IX was due. The Court granted that motion, but plaintiffs failed to file responses to either the City of Granite City's motion to dismiss count IV or defendants Dawes and Redstone's motion to dismiss counts IV through IX. Accordingly, on October 2, 2012, the Court granted defendant the City of Granite City's motion to dismiss count IV and defendants Redstone and Dawes' motion to dismiss counts IV through IX on the basis that plaintiffs' failure to timely respond was an admission on the merits of the motions as provided in Local Rule 7.1(c) of the United States District Court for the Southern District of Illinois. (Doc. 32).
As to defendants' motion to strike plaintiffs' response, that motion is denied. Defendants filed their motions to dismiss on July 5, 2012. When defendants filed their motions electronically, the case management ("CM") electronic case filing ("ECF") system ("CM/ECF") generated a response date of August 9, 2012. Plaintiffs filed their response (Doc. 20) on August 8, 2012, a day before the response was ...