United States District Court, N.D. Illinois, Eastern Division
KENYA and APRIL ELSTON as legal guardians of their son U.E., a minor, Plaintiffs,
COUNTY OF KANE, KANE COUNTY SHERIFF'S DEPUTY BRIAN DEMETER, Defendants.
OPINION AND ORDER
L. ELLIS United States District Judge
Kenya and April Elston allege that Kane County Sheriffs
Deputy Brian Demeter hurt their son, U.E., during a
confrontation in a public park and bring this complaint
against Kane County ("County") and Demeter,
alleging constitutional violations under 42 U.S.C. §
1983 and state law tort claims. Kane County now moves to
dismiss  the claims against it arguing that the County
cannot be held vicariously liable for Demeter's actions
and the Elstons do not plausibly allege that Demeter was
acting within the scope of his employment at the time of the
incident to allow an indemnification claim. Because the
County cannot be vicariously liable for the actions of a
sheriffs deputy, the Court grants the motion to dismiss with
respect to the vicarious liability claim (Count V). However,
the Elstons have plausibly alleged that Demeter was acting
within the scope of his employment at the time of the
incident in question; thus, the Court denies the motion to
dismiss with respect to the indemnification claim (Count VI).
7, 2015, U.E. was playing basketball with several friends in
a park in Aurora, Illinois. While playing, U.E. and his
friends cursed at each other in a good-humored way. Demeter,
a Kane County Sheriffs Deputy who was off-duty at the time,
was sitting near the basketball court and yelled at the boys
several times, demanding that they stop cursing. U.E. told
his friends that they did not have to stop cursing. At this
point, Demeter stood up and pulled up his shirt, revealing
his gun and sheriffs badge to U.E. Demeter told U.E.,
"[Y]ou better watch who you are messing with." Doc.
1 ¶ 11. The boys then cursed again. Demeter then grabbed
U.E. by the neck and pushed him. U.E. asked Demeter why he
was touching him, to which Demeter replied that he was going
to call U.E.'s father because Demeter was a police
officer. Demeter then grabbed U.E., threw him to the ground,
and pulled U.E.'s arms behind his back. During this
process, Demeter ripped U.E.'s shirt and Demeter's
gun fell to the ground. Following the incident, U.E. went to
Rush-Copley Medical Center and received treatment for
contusions to his head and neck.
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 complaint and draws all reasonable inferences from
those facts in the plaintiffs 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 Ail. 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. "While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiffs
obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (internal citations omitted). "The plausibility
standard is not akin to a 'probability requirement, '
but it asks for more than a sheer possibility that a
defendant has acted unlawfully." Iqbal, 556
U.S. at 678.
Vicarious Liability (Count V)
complaint, the Elstons allege that Demeter is an employee of
the County, therefore the County is vicariously liable under
a theory of respondeat superior. The County argues
that because Demeter is an employee of the Kane County
Sheriffs Department not an employee of the County, the County
is not vicariously liable for his actions. County sheriffs in
Illinois are independently elected county officers and are
separate from their respective county boards in such a way
that the boards are not vicariously liable for their actions.
Franklin v. Zaruba, 150 F.3d 682, 685-86 (7th Cir.
1998). The Elstons concede this point in their response and
withdraw this claim. Therefore, the Court grants the
County's motion with respect to Count V.
Indemnification (Count VI)
Elstons allege that because Demeter was an employee of the
Kane County Sheriffs Department at the time of the incident,
the Sheriffs Department is liable for any judgment against
Demeter, and the County is a necessary party because it is
required by law to indemnify the Sheriffs Department. The
County argues that the Elstons fail to plausibly allege that
Demeter was acting within the scope of his employment at the
time of the incident; therefore, the County is not required
to indemnify the claim. An employee's conduct is within
the scope of employment if "(a) it is of the kind he is
employed to perform; (b) it occurs substantially within the
authorized time and place limits; and (c) it is actuated, at
least in part, by a purpose to serve the master."
Pyne v. Witmer, 543 N.E.2d 1304, 1308, 129Ill.2d
351, 135111. Dec. 557 (111. 1989) (quoting Restatement
(Second) of Agency § 228 (1958)). Scope of employment is
a fact-intensive issue, and Illinois courts have held that it
is generally inappropriate to resolve this issue at the
motion to dismiss or summary judgment stage. Bagent v.
Blessing Care Corp., 862 N.E.2d 985, 992, 224Ill.2d 154,
308111. Dec. 782 (111. 2007). "Only if no reasonable
person could conclude from the evidence that an employee was
acting within the course of employment should a court hold as
a matter of law that the employee was not so acting."
Id. at 992-93; see also Lyons v. Adams, 257
F.Supp.2d 1125, 1140 (N.D. 111. 2003) ("[W]here an
individual defendant acts solely to promote his or her own
personal interests the defendant does not act within the
scope of his or her employment.").
the Elstons allege that Demeter is a sheriffs deputy, showed
his badge and gun to U.E., identified himself as a police
officer to U.E., and engaged with UE. in an effort to stop
U.E. from cursing. There is no allegation that he did any of
this to promote his own personal interest. The Elstons plead
that Demeter was off-duty at the time and that the incident
took place outside of Demeter's jurisdiction, in a
neighboring county, but while these allegations very well may
be relevant to the ultimate disposition of this case, they
are not conclusive proof that he was not acting within the
scope of his employment. See Coles v. City of
Chicago, 361 F.Supp.2d 740, 749 (N.D. 111. 2005) (that
officer is off-duty at the time of incident is not
dispositive of scope of employment). Additionally, although
the Elstons do not explicitly allege that Demeter engaged in
these acts with the purpose to serve his employer, his
intention is reasonably inferred from showing his badge and
identifying himself as a police officer. See Marquez v.
Jackson, No. 13 C 3278, 2013 WL 6797165, at *2 (N.D.
111. Dec. 23, 2013) (allegation that officer identified
himself as a police officer is sufficient to support an
inference that he believed he was engaged in an official act
at the time of the incident). The Elstons sufficiently allege
that Demeter was acting within the scope of his employment at
the time of the incident.
reply, the County for the first time argues that the Court
should also dismiss the indemnification claim because the
Elstons did not sue Demeter in his official capacity and they
did not name the Kane County Sheriffs Department as a
defendant. The Court does not consider these arguments here
because the County did not raise them in its original motion
and the Elstons have not had an opportunity to respond.
See Nelson v. La Crosse Cty. Dist. Atty., 301 F.3d
820, 836 (7th Cir. 2002) ("It is well settled that
issues raised for the first time in a reply brief are deemed
waived."); Edwards v. Honeywell, Inc., 960 F.2d
673, 674 (7th Cir. 1992) ...