United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Marvin E. Aspen United States District Judge
before us are several motions, including Defendant Officer
Fredericksen's motion to dismiss Plaintiff Joseph
Chambers' third amended complaint for failure to state a
claim and for insufficient service of process, (Dkt. No. 41),
Defendant Cook County's motion to dismiss for failure to
state a claim, (Dkt. No. 36), and Defendant Village of
Lynwood's motion to dismiss for failure to state a claim,
(Dkt. No. 34). Also before us is Plaintiff's motion for
leave to file a fourth amended complaint, (Dkt. No. 50),
Plaintiff's motion for leave to file a response to
Officer Fredericksen's motion to dismiss, (Dkt. No. 45),
and Plaintiff's motion for leave to file a response to
Lynwood's motion to dismiss, (Dkt. No. 48). For the
reasons set forth below, we grant Plaintiff's motions for
leave to file responses to the defendants' motions to
dismiss, and grant Plaintiff's motion for leave to file a
fourth amended complaint in part and deny it in part. We also
grant Lynwood's and Cook County's motions to dismiss,
with prejudice, and deny Officer Fredericksen's motion to
dismiss as moot.
December 22, 2014, Plaintiff filed a complaint against
Lynwood Police Department Officer Brandin Fredericksen
alleging excessive force in violation of 42 U.S.C. §
1983 and, under Illinois law of indemnification, alleging
that the Cook County Sheriff, as Officer Fredericksen's
employer, was liable for any future money judgment against
Officer Fredericksen. (Dkt. No. 1 ¶¶ 1, 8-15,
16-17.) Plaintiff's excessive force claim is based on an
incident in which Officer Fredericksen allegedly attacked and
“tazed” him while he sat in his car. (Dkt. No. 24
granted Plaintiff leave to amend his complaint on June 6,
2015. (Dkt. No. 11.) Plaintiff's first amended complaint
replaced the Cook County Sheriff with the Lynwood Police
Department as defendant, again alleging the Lynwood Police
Department, as Officer Fredericksen's true employer, was
liable for any future money judgment in Plaintiff's favor
under an indemnification theory. (Dkt. Nos. 8, 15.) On
January 25, 2016, Plaintiff filed a motion for leave to file
a second amended complaint, which we granted on January 27,
2016. (Dkt. No. 19.) The second amended complaint again added
the Cook County Sheriff as a defendant. (Dkt. No. 17, Ex. 1.)
On June 10, 2016, we dismissed all defendants without
prejudice because Plaintiff failed to timely serve them, and
granted Plaintiff leave to file a third amended complaint.
(Dkt. Nos. 20, 23.)
filed his third amended complaint on July 5, 2016, naming
Officer Fredericksen, the Village of Lynwood, and Cook
County-as opposed to the Cook County Sheriff-as defendants.
(Dkt. No. 24.) On August 1, 2016, both Lynwood and Cook
County moved to dismiss Plaintiff's third amended
complaint, arguing that it was barred by the applicable
statute of limitations. (Dkt. Nos. 34, 36.) On August 11,
2016, Officer Fredericksen moved to dismiss Plaintiff's
third amended complaint for insufficient service and because
it is barred by the applicable statute of limitations. (Dkt.
Plaintiff filed the instant motion for leave to file a fourth
amended complaint on September 6, 2016. (Dkt. No. 50.)
Plaintiff states that, upon reviewing the defendants'
motions to dismiss,  he discovered his third amended complaint
erroneously lists January 3, 2012 as the date of the incident
giving rise to his claims, when in fact, that incident
occurred a year later, on January 3, 2013. (Dkt. Nos. 50
¶ 1, 50-3 ¶ 7; see Dkt. No. 48-4 (arrest
report indicating the correct date).) Plaintiff's fourth
amended complaint thus seeks leave to correct that error.
(Dkt. No. 50-3 ¶ 7.) Plaintiff also seeks to add two new
claims pursuant to Monell v. Dep't of Soc. Servs. of
N.Y., 436 U.S. 658, 98 S.Ct. 2018 (1978)-§ 1983
claims against the Village of Lynwood and against Cook
County. (Dkt. No. 50-3 ¶¶ 27-30, 31-34.) All three
defendants oppose the amendment.
motion for leave to file a fourth amended complaint is
governed by Rule 15, which permits a party to amend a
pleading more than 21 days after service “only with the
opposing party's written consent or the court's
leave.” Fed. R. Civ. P (15)(a)(2). We have discretion
to grant amendments “when justice so requires.”
Id. However, we also have “broad discretion to
deny leave to amend where there is undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies, undue
prejudice to the defendants, or where the amendment would be
futile.” Hukik v. Auror Loan Servs., 588 F.3d
420, 432 (7th Cir. 2009) (quoting Arreola v.
Godinez, 546 F.3d 788, 796 (7th Cir. 2008)) (internal
quotation marks omitted).
motions to dismiss for failure to state a claim are governed
by Rule 12(b)(6), and Officer Fredericksen's motion to
dismiss for insufficient service is governed by Rule
12(b)(5). “The purpose of the motion to dismiss is to
test the sufficiency of the complaint, not decide the
merits.” Gibson v. City of Chicago, 910 F.2d
1510, 1520 (7th Cir. 1990) (quoting Triad Assocs., Inc.
v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir.
1989)) (internal quotation marks omitted). When evaluating a
motion to dismiss, we accept all well-pleaded factual
allegations as true, and draw all inferences in the
plaintiff's favor. Cole v. Milwaukee Area Tech. Coll.
Dist., 634 F.3d 901, 903 (7th Cir. 2011).
survive a Rule 12(b)(6) motion to dismiss, a complaint need
only contain enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atl. Corp. v. Twombly, 556 U.S. 544,
570, 127 S.Ct. 1955, 1974 (2007)) (internal quotation marks
omitted). Accordingly, a complaint “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.”
survive a Rule 12(b)(5) motion to dismiss, the
“plaintiff bears the burden to demonstrate that the
district court has jurisdiction over each defendant through
effective service.” Cardenas v. City of
Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). If the
plaintiff does not meet that burden, we “must either
dismiss the suit or specify a time within which the plaintiff
must serve the defendant.” Id. “[T]he
decision whether to dismiss or extend the period for service
is inherently discretionary.” Id. (citing
United States v. Ligas, 549 F.3d 497, 501 (7th Cir.
Proposed Amendment as to Claims Against ...