LESSIE GILL DANDRIDGE, as the Special Administrator of the Estate of Jerome Gill, deceased, Plaintiff,
COOK COUNTY, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
This matter is before the Court on Defendants' motions to dismiss Plaintiff Lessie Gill Dandridge's complaint [21, 22]. For the reasons set forth below, the Court grants the individual Defendants' motions to dismiss  and grants in part Defendant Cook County's motion to dismiss . This case remains pending as to Defendant Dart and as to Cook County on an indemnification basis only.
Plaintiff's amended complaint alleges that on July 15, 2010, Plaintiff's decedent, Jerome Gill, was arrested near his home at 1730 West 1st Avenue in Melrose Park, Illinois. Plaintiff maintains that during Jerome Gill's arrest, Defendant Officers used excessive force against him or failed to intervene to prevent the excessive force. The complaint further alleges that Jerome Gill passed away on the same day as a result of the use of excessive force.
On January 6, 2011, Mark Smolens, one of Plaintiff's attorneys of record in this case, submitted a request to the Cook County Sheriff's Office pursuant to the Illinois Freedom of Information Act ("FOIA") for documents concerning the arrest of Mr. Gill. On January 12, 2011, a representative of the Cook County Sheriff's Police Department ("CCSPD") sent a letter to Mr. Smolens stating, "After making a thorough and diligent search of our records I find no records relating to attached incident." Plaintiff claims that after her attorneys received his response, they no longer believed that the CCSPD was involved in Mr. Gill's arrest. Subsequent to Plaintiff's FOIA request, Plaintiff's counsel submitted a FOIA request to the Melrose Park Police Department, obtained Mr. Gill's medical examiner's report and medical records, and interviewed people in the area. Then, on June 30, 2012, another one of Plaintiff's attorneys faxed a FOIA request to the CCSPD. On July 10, 2012, the CCSPD sent a letter to Plaintiff's counsel informing her that documents regarding the undercover drug investigation of Mr. Gill could not be disclosed pursuant to several exemptions under FOIA.
On July 11, 2012, Plaintiff Lessie Gill Dandridge filed a complaint against Thomas Dart, the Cook County Sheriff's Police Department, the Melrose Park Police Department, and unknown officers. Defendant Melrose Park Police Department moved to dismiss. On August 29, 2012, seven weeks after Plaintiff filed her initial complaint, the Court ordered defense counsel to provide documents to Plaintiff to identify the unknown officers. The Court gave Plaintiff leave to file an amended complaint on or before October 25, 2012, and struck without prejudice Defendant Melrose Park Police Department's motion to dismiss. On October 24, 2012, Plaintiff filed a two-count amended complaint against Cook County, Thomas Dart, Terrance Ross, Roy Jones, Salvatore Marra, Leon Ugarte, Mizell Walls, Sgt. Gary Newsom, Kimberly Brown, Gary Contreras, and Craig Wilk. Count I of the complaint alleges a 42 U.S.C. § 1983 claim for excessive force and Count II alleges a Monell claim under 42 U.S.C.§ 1983 against Cook County and Defendant Dart for failing to train and discipline Sheriff's employees to prevent the use of excessive force or for failing to respond properly to the FOIA request by Plaintiff's attorney. Defendant Cook County has moved to dismiss, and Defendants Terrance Ross, Roy Jones, Salvatore Marra, Leon Ugarte, Mizell Walls, Sgt. Gary Newsom, Kimberly Brown, Gary Contreras, and Craig Wilk separately have moved to dismiss. Sheriff Dart has not moved to dismiss the claims asserted against him.
II. Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given "fair notice of the way the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
III. Analysis of Individual Defendants' Motion to Dismiss
Individual Defendants seek dismissal of Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff's claims are time-barred as a matter of law. The Seventh Circuit recently has been very clear in its assessment of the limitations periods: "[O]n the subject of the statute of limitations * * * * [w]hat a complaint must plead is enough to show that the claim for relief is plausible. Complaints need not anticipate defenses and attempt to defeat them. The period of limitations is an affirmative defense * * * * We have held many times that, because complaints need not anticipate defenses, Rule 12(b)(6) is not designed for motions under Rule 8(c)(1)." Richards v. Mitcheff, 696 F.3d 635, 637-38 (7th Cir. 2012) (internal citations omitted); see also United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003); United States v. Northern Trust Co., 372 F.3d 886 (7th Cir. 2004); Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899 (7th Cir. 2004). In Mitcheff, the Court concluded by reminding judges to "respect the norm that complaints need not anticipate or meet potential affirmative defenses."
Despite these admonitions, the Seventh Circuit also has consistently reaffirmed that a plaintiff may plead himself out of court by alleging facts that are sufficient to establish a statute-of-limitations defense. See Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 (7th Cir. 2009) (dismissal is appropriate where it is "clear from the face of the amended complaint that it [was] hopelessly time-barred"); Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (stating that "[a] statute of limitations defense, while not normally part of a motion under Rule 12(b)(6), is appropriate where the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations") (internal quotations omitted); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.2d 623, 626 (7th Cir. 2003) ("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense"); Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) ("Only when the plaintiff pleads itself out of court-that is, admits all the ingredients of an impenetrable defense-may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6)."); see also Baldwin v. Metro. Water Reclamation Dist. Of Greater Chicago, 2012 WL 5278614, at *1 ("A plaintiff whose allegations show that there is an airtight defense has pleaded himself out of court, and the judge may dismiss the suit on the pleadings * * *.") (quoting Mitcheff, 696 F.3d at 637). In the present case, Plaintiff has pled facts necessary to raise a statute of limitations inquiry, leaving the Court to consider whether Plaintiff's claims are time barred. Where a plaintiff has pled facts which arguably establish an affirmative defense and both sides have briefed the issue, practical considerations-such as discovery costs, attorneys' fees, and judicial efficiency-provide courts with ample reasons to resolve a dispositive point of law early in a case, whether the parties have briefed the question as a 12(b)(6) or a 12(c) issue. In either case, a court's decision rests on the pleadings and whether a plaintiff has affirmatively pled herself out of court.
The length of the limitations period for a § 1983 action is determined by reference to state law personal injury torts. Owens v. Okure, 488 U.S. 235, 240-41, 249-50 (1989) (quoting and clarifying Wilson v. Garcia, 471 U.S. 261, 280 (1985)). In Illinois, the pertinent limitations provision requires a would-be plaintiff to bring suit within two years of a cause of action's accrual. 735 ILCS 5/13-202; Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir. 2007). The limitations clock on an action brought pursuant to § 1983 for excessive force begins to run at the time the that claimant was arrested or injured. See Washington v. Summerville, 127 F.3d 552, 556 (7th Cir. 1997) ("the statute of limitations on [plaintiff's false arrest and excessive force] claims began to run when he knew or should have known that his constitutional rights had been violated-the date of his arrest"); Hudson v. Cassidy, 2006 WL 3524420, at *3 (N.D. Ill.Dec. 5, 2006) (excessive force is immediately felt and an excessive force claim accrues immediately). For Plaintiff, that means that the limitations period began to run on or about July 15, 2010. In Defendants' estimation, Plaintiff pled herself out of court as to her claims against the individual officers by including certain calendarial facts in her amended complaint: Plaintiff was arrested on July 15, 2010; Plaintiff filed her initial complaint, with the assistance of counsel, on July 11, 2010, asserting claims against Thomas Dart, the Cook County Sheriff's Police Department, the Melrose Park Police Department, and unknown officers; and Plaintiff filed her amended complaint, naming the individual officers and dropping Melrose Park Police Department, on October 24, 2012.
Plaintiff did not name the individual officers as parties to this case until she filed her amended complaint on October 24, 2012. Amended suits, which add new parties after the two-year period, are untimely and will be dismissed unless relation back applies or the running of the statute of limitations is tolled. See, e.g., Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 561-2 (7th Cir. 1996). Thus, Plaintiff's claims against the individual officers survive only if the filing of the amended ...