United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Plaintiff Jarrod Horton filed this complaint against Defendants Kenneth Walker, Shaquila Moore, the City of Chicago, the Chicago Housing Authority ("CHA"), Maverick Security, Inc., and H.J. Russell & Company for violations of 42 U.S.C. § 1983, battery, wrongful death, and intentional infliction of emotional distress in connection with the alleged arrest and fatal shooting of his brother Marlon Horton by Walker and Moore. Before the Court are H.J. Russell's, Maverick's and Shaquila Moore's motions to dismiss [56, 57, 69, respectively]. For the reasons stated below, the Court denies Defendants' motions and grants Plaintiff leave to amend his complaint based on his appointment by the Circuit Court of Cook County as Independent Administrator of his brother's estate. Plaintiff is given until 11/13/2014 to file his amended complaint.
The SAC alleges that on or about September 7, 2013, Plaintiff's brother, Marlon Horton, entered a CHA residential building located at 1815 W. Monroe Street in Chicago. The building was attended by two security guards that day-Walker and Moore. Walker and Moore, in turn, were jointly employed by two businesses-H.J. Russell and Maverick. H.J. Russell and Maverick allegedly acted under color of state law, providing the CHA property management and security services, respectively, at that building. The two companies are alleged to have provided these services pursuant to a delegation of police power by the State of Illinois under 310 ILCS 10/8.1a and other laws.
According to the SAC, when Horton entered the building, Walker and Moore asked him to leave. He left, at which point they arrested him without an arrest warrant, search warrant, exigent circumstances, reasonable suspicion, consent, or probable cause. Walker then fatally shot Horton. During the shooting, Moore failed to intervene, and instead actually aided and supported Walker.
Walker and Moore allegedly acted pursuant to widespread practices at H.J. Russell and Maverick, in which both companies failed "to adequately train and supervise [their] security guards in the performance of their police-like duties" or "to punish and discipline prior instances of similar misconduct." SAC at ¶ 59. These failures led to "numerous instances of civil rights violations by other security guards" and caused "other security guards to believe their actions [would] never be scrutinized and, in that way, thereby directly encourag[ed] future abuses." Id. The SAC additionally alleges that Walker and Moore acted within the scope of their employment or authorized agency with respect to both companies and that H.J. Russell and Maverick are therefore liable for all their torts under the doctrine of respondeat superior. Id. at ¶ 64.
Plaintiff filed this complaint against Walker and Moore for false arrest (Count I), use of excessive force (Count II), and conspiracy (Count IV) in violation of 42 U.S.C. § 1983 as well as intentional infliction of emotional distress (Count V), wrongful death under the Illinois Wrongful Death Act (Count VI), and battery (Count VII); against Moore for failure to intervene in violation of § 1983 (Count III); against the City of Chicago and the Chicago Housing Authority ("CHA") for policies and practices in violation of § 1983 (Count VIII); against H.J. Russell and Maverick for practices in violation of § 1983 (Count IX) and for the torts allegedly committed by their agents, Walker and Moore (Count XI); and against the City of Chicago and the CHA for indemnification of Walker and Moore (Count X). Plaintiff alleges that he is the "Special Administrator of the Estate of Marlon Horton." SAC at ¶ 1.
H.J. Russell and Maverick move to dismiss Counts IX and XI under Federal Rule of Civil Procedure 12(b)(6). Moore, joined by the CHA, the City of Chicago and Walker, move to dismiss Count VI under Federal Rule of Procedure 12(b)(1).
II. Legal Standard
A motion to dismiss pursuant to rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 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, " such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming 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). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). For a claim to be plausible, the plaintiff must put forth enough "facts to raise a reasonable expectation that discovery will reveal evidence" supporting the plaintiff's allegations. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.").
Turning to Moore's argument that Plaintiff lacks standing, there are two types of rule 12(b)(1) challenges-factual and facial-and they have a "critical difference." Apex Digital Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). When a defendant argues that "the plaintiffs' complaints, even if true, were purportedly insufficient to establish injury-in-fact, " the challenge is a facial one. Id. at 443-44. "Facial challenges require only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Id. at 443 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Factual challenges, however, lie "where the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction.'" Id. (citing United Phosphorus, Ltd. v. Angus Chem. Co., 332 F.3d 942, 946 (7th Cir. 2003)). Courts may look beyond the complaint only when a defendant brings a factual attack against jurisdiction. Id.
A. H.J. Russell and ...