United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
After being pulled over by Sergeant Joseph Willett for failure to signal, Plaintiff Derrick Golden was charged and prosecuted for aggravated UUW, failure to signal, suspended driver's license and no insurance. Once the criminal charges resolved in Golden's favor, he filed this lawsuit against Defendants Village of Glenwood (the "Village") and Willett, in his individual capacity, alleging violations of his civil rights under 42 U.S.C. § 1983, and, as is relevant to this opinion, a state law claim for malicious prosecution. Defendants have moved to dismiss a portion of Golden's malicious prosecution claim, strike the paragraphs of the complaint relating to that part of Golden's malicious prosecution claim, and strike and dismiss Golden's prayer for punitive damages under his malicious prosecution claim. Defendants' motion  is granted. The Court dismisses as time-barred Golden's malicious prosecution claim based on his criminal case that was dismissed on February 13, 2013, and strikes the paragraphs of Golden's Complaint which give rise to this dismissed claim as immaterial to Golden's remaining causes of action. Additionally, the Court dismisses Golden's prayer for punitive damages against Willett stemming from his malicious prosecution claim finding that § 2-102 of the Illinois Tort Immunity Act ("ITIA") immunizes Willett from such damages.
Golden was driving home from a shooting range when Willett pulled him over under the false pretenses that Golden failed to use a turn signal and was driving with a suspended license. Without legal justification, Willett ordered Golden out of his car and proceeded to search the car. Golden, who was legally authorized to own a gun and had a valid Firearm Owners Identification card, had a gun in the trunk of his car. Golden had the unloaded gun stored in a case and the ammunition stored in the glove box of the car. Neither the gun nor the ammunition were in plain view or immediately accessible to Golden when he was in the car. Nevertheless, Willett falsely claimed that Golden's gun had been uncased, loaded, and immediately accessible to Golden in the car and drafted false reports containing this information. Ultimately, Willett charged Golden with unlawful use of a weapon ("UUW"), along with several traffic violations ("Case #1"). These charges were dismissed by an order of nolle prosequi on February 13, 2013. On July 16, 2013, a grand jury returned an indictment against Golden based on the same facts underlying Case #1, charging him with three counts of UUW ("Case #2"). These charges were subsequently dismissed by an order of nolle prosequi on September 17, 2013. Golden filed his Complaint on September 17, 2014.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
I. Statute of Limitations
Defendants move to dismiss Golden's malicious prosecution claim relating to Case #1 as time-barred. The statute of limitations is an affirmative defense that need not be anticipated in the complaint in order to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). But that is not the case where "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint reveals that an action is untimely under the governing statute of limitations." Id.; see also Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (considering statute of limitations defense on motion to dismiss where relevant dates were set forth in the complaint).
The Illinois Tort Immunity Act ("ITIA") governs civil tort claims filed against local government employees, including claims for malicious prosecution. Under the ITIA, claims are subject to a one-year statute of limitations. 745 Ill. Comp. Stat. 10/8-101(a); Shelton v. Wright, No. 09 C 6413, 2011 WL 856811, at *3 (N.D. Ill. Mar. 9, 2011). For claims of malicious prosecution, this one-year period begins running "on the date the case was terminated in the plaintiff's favor." Shelton, 2011 WL 856811, at *3 (citing Ferguson v. City of Chicago, 820 N.E.2d 455, 459, 213 Ill.2d 94, 289 Ill.Dec. 679 (2004)). Defendants contend that Case #1 was terminated, and the statute of limitations began running, on February 13, 2013 when the court entered an order of nolle prossequi, dismissing the case. Because Golden filed his malicious prosecution claim on September 17, 2014, Defendants assert that Case #1 is time-barred. Golden responds that because one of the charges brought in Case #1 was brought again in Case #2, the nolle prosequi order entered in Case #1 did not finally terminate that criminal proceeding against Golden. Therefore, it was not until the court entered an order of nolle prosequi with respect to Case #2, without further criminal charges being brought against Golden, that his malicious prosecution claim accrued. Because Case #2 was finally terminated on September 17, 2013, and Golden's complaint was filed on September 17, 2014, Golden contends that the entirety of his malicious prosecution claim is timely.
Illinois case law is clear that the entry of a nolle prosequi order in a criminal case "terminates the charge and requires the institution of a new and separate proceeding to prosecute the defendant." Ferguson, 820 N.E.2d at 460 (citing People v. Sanders, 407 N.E.2d 951, 959, 86 Ill.App.3d 457, 41 Ill.Dec. 453 (1980)); Shelton, 2011 WL 856811, at *3. Such an order is qualitatively different from an order striking a case with leave to reinstate ("SOL"), which allows the "charges [to] continue to lie against the accused, albeit in a dormant state." Id. at 459. "Because an SOL order does not finally dispose of criminal proceedings, " it "[does] not result in a termination, favorable or otherwise, of [a] criminal case." Id. at 459-60. As such, a defendant's malicious prosecution claim does not accrue upon the entry of an SOL order. See id. at 460. A nolle prosequi order, on the other hand, terminates a criminal proceeding, giving rise to a claim for malicious prosecution. See Id. at 460 (citing Swick v. Liautaud, 662 N.E.2d 1238, 1242-43, 169 Ill.2d 504, 215 Ill.Dec. 98 (1996)); Shelton, 2011 WL 856811, at *4. Golden concedes that "normally abandonment of proceedings via the entry of a nolle prosequi functions as a final termination of the criminal case such that the statute of limitations on a malicious prosecution claim would start to run." Doc. 19 at 5. Indeed, Golden admits that the entry of the nolle prosequi order in Case #2 functioned as a final termination of the matter. Regardless, without providing any legal justification, Golden asks the Court to find that because one of the charges brought in Case #1 was brought again in Case #2, the entry of the nolle prosequi in Case #1 did not function as a final termination of that matter.
However, the Court finds that Illinois law indisputably establishes that a nolle prosequi order finally terminates a proceeding, thereby triggering the statute of limitations for a malicious prosecution claim based on that proceeding. Ferguson, 820 N.E.2d at 460; Swick, 662 N.E.2d at 1242-43; Shelton, 2011 WL 856811, at *4. The Court is unaware of any legal authority which would support Golden's argument that bringing the same charge in a subsequent prosecution somehow renders inoperative a nolle prosequi order entered in a prior prosecution. Furthermore, the facts clearly demonstrate that Case #1 and Case #2 were two separate proceedings. In Case #1, Willett filed a criminal complaint, initiating the case against Golden. Case #2, on the other hand, resulted from an indictment by a grand jury. The mere fact that a UUW charge was prosecuted in both cases does not nullify the nolle prosequi order entered in Case #1. Accordingly, because Case #1 was nol-prossed on February 13, 2013, and Golden did not file the present complaint until September 17, 2014, Golden's malicious prosecution claim based Case #1 is time-barred.
II. Motion to Strike Malicious Prosecution Allegations
Having dismissed Golden's malicious prosecution claim as to Case #1, the Court turns to Defendants' motion to strike paragraphs 33-35 of Golden's Complaint (which constitute the allegations giving rise to Golden's malicious prosecution claim as to Case #1) as immaterial. "Rule 12(f) provides that a district court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.'" Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009) (quoting Rule 12(f)). The Court notes that while Golden opposed Defendants' partial motion to dismiss his malicious prosecution claim with regard to Case #1, Golden did not oppose Defendants' motion to strike the paragraphs relating to that claim. Golden thereby forfeits the issue. Copeling v. Ill. State Toll Highway Auth., No. 12 C 10316, 2014 WL 540443, at *2 (N.D. Ill. Feb. 11, 2014) (citing Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)) (forfeiture occurs "where a litigant effectively abandons the litigation by not ...