United States District Court, N.D. Illinois, Eastern Division
March 12, 2014
SHONNE SMITH, Plaintiff,
CITY OF CHICAGO, et al., Defendants.
MILTON I. SHADUR, Senior District Judge.
All four individual defendants in this 42 U.S.C. § 1983 ("Section 1983") action brought against them and the City of Chicago have filed their Joint Answer to the Third Amended Complaint ("TAC") brought against them and the City of Chicago by plaintiff Shonne Smith ("Smith"). This memorandum order is issued sua sponte to strike the affirmative defense ("AD") that is wrongly coupled with the Answer itself.
Fed. R. Civ. P. ("Rule") 8(c) and the caselaw interpreting and applying that rule require that the party filing an A.D. accept the plaintiff's allegations as gospel but assert some predicate for avoiding or lessening the pleader's liability - see also App'x ¶ 5 to State Farm Mut. Auto. Ins. Co. v. Riley , 199 F.R.D. 276, 279 (N.D. Ill. 2001). But in this instance defendants' AD, which sets out a claim of qualified immunity, flies directly in the face of Complaint ¶ 16:
There was no basis for a finding of probable cause to pursue charges against Smith for possession with the intent to deliver cocaine. Had Smith been timely granted a preliminary hearing within 48 hours of his arrest it would have been apparent that there was no basis for a finding of probable cause for the crime which he was charged.
Because defendants' Answer denies that allegation (albeit "[u]pon information and belief"), it will require a trial or other evidentiary hearing to decide the issue. And that being so, qualified immunity cannot be asserted as a matter of law. Accordingly the A.D. is stricken.