United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
CHARLES R. NORGLE, District Judge.
Plaintiff, Vernard King, presently in custody at the Metropolitan Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. In his complaint, Plaintiff alleges that the Defendant Douglas Bernabei, Chief of Police for the City of Peru, Illinois, violated his rights by subjecting him to excessive force on arrest, beating him and causing injury to Plaintiff's face. Plaintiff also alleges that Defendant Bernabei threatened to kill him. Plaintiff further alleges that Defendant Dr. David Kelton, mistakenly identified in the complaint as Kenton Davis, medicated Plaintiff against his will on orders from Defendant Bernabei.
Presently before the Court is Defendant Bernabei's motion to dismiss Plaintiff's amended complaint for failure to state a claim against him [#13]. In his motion, Defendant Bernabei argues that Plaintiff has mistakenly made his claim pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Defendant Bernabei also argues that Plaintiff has failed to state a claim for conspiracy as to the alleged conduct of Defendants Bernabei and Kelton. Finally, Defendant Bernabei argues that Plaintiff's allegation that Defendant Bernabei threatened to kill him should be stricken from the complaint.
"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Id. Put differently, a complaint must contain sufficient factual content "to allow the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.'" Charleston v. Board of Trs. of Univ. of Ill. at Chicago, 741 F.3d 769, 772 (7th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true." Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013).
Plaintiff alleges the following facts in his complaint, which are accepted as true for purposes of the motion to dismiss. Plaintiff is presently incarcerated at the Metropolitan Correctional Center in Chicago, Illinois. On or about May 22, 2012, Defendant Berabeianested Plaintiff in LaSalle, Illinois., During the arrest, Plaintiff alleges, Defendant Bernabei beat him, injuring Plaintiff's face. Defendant Bernabei also threatened to kill Plaintiff.
After the arrest and alleged injury, Plaintiff was transported to Illinois Valley Community Hospital, where Defendant Dr. David Kelton, mistakenly identified in the complaint as Kenton Davis, medicated Plaintiff against Plaintiffs will. Plaintiff alleges that Defendant Kelton medicated him on orders from Defendant Bernabei.
While Bivens does not apply, Plaintiff may puruse his claims under § 1983.
Defendant's first argument in his motion to dismiss is that Plaintiff mistakenly makes his claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). It is well established that § 1983 applies to actions taken under color of state law and thus claims based on conduct by federal employees in the course of their employment must be brought pursuant to Bivens. See, e.g., District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973). Thus, to the extent that Plaintiffs requests for relief directed at defendants acting under color of state law are brought pursuant to Bivens, they are stricken with prejudice.
However, as a general rule, specifying an incorrect legal theory in a complaint is not fatal. See Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992); see also La Porte County Republican Central Comm. v. Board of Comm'rs, 43 F.3d 1126, 1129 (7th Cir. 1994) (plaintiffs need not plead legal theories). Additionally, substitution of legal theories is permissible unless the adjustment to the original theory surprises the defendant and makes it more costly or difficult for him to defend or the change causes unreasonable delay. Vidimos, Inc. v. Laser Lab, Ltd., 99 F.3d 217, 222 (7th Cir. 1996). Here, the two legal theories are similar. See King v. Fed Bureau of Prisons, 415 F.3d 634, 636 (7th Cir. 2005) (Bivens authorized the "filing of constitutional tort suits against federal officers in much the same way that 42 U.S.C. § 1983 authorizes such suits against state officers"). Further, in its initial review order of July 1, 2013, the Court found that purusant to 28 U.S.C. § 19154, Plaintiff was authorizedto proceed on his claims of excessive force on arrest against Defendant Bernabei, and Defendant Kelton for subjecting him to medical treatment without his consent. Accordingly, while Plaintiff may not puruse his claims pursuant to Bivens, he may pursue his claims against Defendants Bernabei and Kelton pursuant to § 1983.
Plaintiff has failed to state a claim for conspiracy.
Defendants next argue that Plaintiff has failed to state a claim for conspiracy. To state a claim for conspiracy under § 1983, a complaint must include plausible allegations of a conspiracy to violate Plaintiff's constitutional rights. Geinosky v. City of Chicago, 675 F.3d 743, 749 (7th Cir. 2012). The amended complaint merely makes a conclusory statement that ...