United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff, Alexandra Rikas ("Rikas"), brings a five-count complaint against defendants Metra Police Officers Thomas Babusch ("Babusch") and Saul Salamanca ("Salamanca"), and Northeast Illinois Regional Commuter Railroad Corporation d/b/a Metra ("Metra). Salamanca moves to dismiss Count III and Metra moves to dismiss Count V. For the following reasons, the motions are granted.
On May 9, 2012, Rikas and her boyfriend were passengers on a Metra train waiting to depart LaSalle Street station. Officer Babusch allegedly ordered Rikas to exit the train. Once off the train, Babusch allegedly grabbed Rikas, pushed her to the ground and slammed her face into the concrete. Officer Salamanca did not intervene but allegedly restrained Rikas' boyfriend. Rikas was taken by ambulance to Northwestern Hospital and treated for injuries to her face and mouth. Babusch later issued a ticket to Rikas for trespassing.
Rikas filed the instant five-count complaint alleging claims for excessive force (Count I), false arrest (Count II) and battery (Count III) against defendants Babusch and Salamanca, and claims for indemnification (Count IV) and Monell liability (Count V) against defendant Metra. Pursuant to Fed.R.Civ.P. 12(b)(6), Salamanca moves to dismiss Count III and Metra moves to dismiss Count V.
A motion to dismiss under Rules 12(b)(6) tests the sufficiency of the complaint. Gilbert v. Illinois State Bd. of Educ., 2008 WL 4390150 (N.D. Ill. Sept. 24, 2008) aff'd, 591 F.3d 896 (7th Cir. 2010). Accordingly, the court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). A motion to dismiss is decided solely on the face of the complaint and any attachments that accompanied its filing. Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010). In order to survive a motion to dismiss brought under Rule 12(b)(6) a complaint must contain sufficient factual allegations to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). This standard is met when the plaintiff pleads factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
1. Salamanca's motion to dismiss
Count III of Rikas' complaint alleges a claim of battery against Babusch and Salamanca. Only Salamanca moves to dismiss. To state a claim of battery in Illinois, a plaintiff must allege that the defendant "engaged in the wilful touching of the person of another and intended to cause a harmful or offensive contact." Luis v. Smith Partners & Associates, Ltd., 2012 WL 5077726 (N.D. Ill. Oct. 18, 2012) ( quoting Bakes v. St. Alexius Med. Ctr., 955 N.E.2d 78, 86 (Ill.App. 2011) (internal quotation marks omitted). Rikas' complaint alleges when Babusch pushed Rikas to the ground, Salamanca "did nothing to intervene...but instead restrained [Rikas'] boyfriend from assisting her and told the boyfriend that the matter didn't involve him and to stay out of it or he would be arrested too." (Pl. Compl. ¶ 13.)
Salamanca argues Count III must be dismissed because Rikas fails to allege that Salamanca touched Rikas or "performed some affirmative act intended to cause an unpermitted contact." See Zboralski v. Monahan, 446 F.Supp.2d 879, 885 (N.D. Ill. 2006). Rikas contends that Salamanca can still be liable for the alleged battery because he acted in any way to aid or abet Babusch, citing Sklan v. Smolla in support. 420 N.E.2d 575, 578 (Ill.App. 1st Dist. 1981). In Sklan the Court held that a person may be liable for battery where he has not physically touched another but has "acted to incite, aid or abet the actual assailant or has acted in furtherance of a common plan or design with the assailant." Id. However, mere presence is insufficient even where the bystander mentally approves of the attack. Id.
In order to be liable for aiding and abetting a battery, a plaintiff must allege facts that would plausibly show that the defendant's actions were wrongful or that the defendant incited or otherwise acted pursuant to a common design to batter the plaintiff. Stacey v. Peoria Cnty., Ill., 2013 WL 3279997 at *7 (C.D. Ill. June 27, 2013). While Salamanca allegedly failed to intervene and restrained Rikas' boyfriend, these allegations are insufficient to show Salamanca aided and abetted the battery. Rikas fails to allege facts that Salamanca's actions were wrongful, that his actions encouraged and incited Babusch to batter Rikas or that Salamanca otherwise acted in concert with Babusch. Therefore, Salamanca's motion is granted and Count III is dismissed as to defendant Salamanca.
2. Metra's motion to dismiss
Metra moves to dismiss Count V of Rikas' complaint alleging Monell liability. The Court notes that it does not apply a heightened pleading standard to civil rights claims, including Monell claims. Riley v. Cnty. of Cook, 682 F.Supp.2d 856, 861 (N.D. Ill. 2010). Indeed, a Monell claim can survive a motion to dismiss "even with conclusory allegations that a policy or practice existed, so long as facts are pled that put the defendants on proper ...